State v. Bowes

• Decision Date: 15 July 2003
• Docket Number: No. COA02-323.,COA02-323.
• Citation: 583 S.E.2d 294,159 NC App. 18
• Parties: STATE of North Carolina v. Jeffrey BOWES, Defendant.
• Court: North Carolina Court of Appeals

583 S.E.2d 294

159 NC App. 18

STATE of North Carolina v. Jeffrey BOWES, Defendant.

No. COA02-323.

Court of Appeals of North Carolina.

July 15, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

The Robinson Law Firm, by Leslie S. Robinson, and Law Offices of Keith A. Williams, P.A., by Keith A. Williams, Greenville, for defendant-appellee.

HUDSON, Judge.

The pertinent background of this appeal is as follows: On 3 August 2001, Jeffrey Bowes pled guilty to driving while impaired and was sentenced as a Level 5 offender. At the time of his plea, Bowes was nineteen years old. Judge Joseph A. Blick ordered Bowes placed on twelve months of unsupervised probation, to pay $290.00 in costs and fines, to obtain a substance abuse assessment, to surrender his driver's license, to complete 24 hours of community service, to submit to any test for the detection of alcohol or drugs requested by a law enforcement officer, and not to operate a motor vehicle until properly licensed to do so.

On 6 August 2001, Judge David A. Leech signed an order in the same file (00 CR 64316) granting Bowes a limited driving privilege. By letter of 13 August 2001, the Division of Motor Vehicles (DMV) notified Bowes that the DMV "considers the [limited driving] privilege void and our records will not indicate [that he] has a limited driving privilege." Bowes then filed a "Motion in the Cause for Contempt and for Injunctive Relief" in the DWI case seeking to have the court hold the DMV in criminal and/or civil contempt for refusing to honor the limited driving privilege and seeking to enjoin the DMV from denying him a limited driving privilege.

On 10 December 2001, District Court Judge Charles M. Vincent entered an Order in which he concluded that the DMV's actions in invalidating Bowes' limited driving privilege violated the separation of powers doctrine and also violated Bowes' constitutional rights to due process and equal protection. The pertinent conclusions of law are as follows:

5. That G.S. 20-179.3(k) authorizing the Division of Motor Vehicles to reject and invalidate a Limited Driving Privilege Order issued by a District Court Judge without notice to the Defendant and an opportunity to be heard before the Judge, violates the separation of powers doctrine of the North Carolina Constitution by vesting judicial authority in an agency of the executive branch;

6. That the Division of Motor Vehicles has no authority to unilaterally reject a Criminal Judgment ordered and issued by a District Court Judge;

7. That the Division of Motor Vehicles without proper notification to the Court and by its inconsistent treatment of such privileges to other drivers similarly situated to the Defendant, has violated the Defendant's Federal and State Constitutional rights to equal protection of the law, and that there is no rational or reasonable basis for the Division's decision to treat the Defendant differently from other drivers who are similarly situated (that is, differently from other drivers who were also over eighteen years of age but under twenty-one years of age at the time they committed the offense of DWI);

8. That the Division of Motor Vehicles' actions in denying a privilege to the Defendant and invalidating the Court's Criminal Judgment has been arbitrary and capricious and is in violation of Defendant's procedural due process of law[.]

Judge Vincent further determined that the DMV was collaterally estopped from contesting or relitigating the issue because the DMV had failed to object to the court's ruling on 6 August 2001 that found that Bowes was eligible for a limited driving privilege, that the State has impliedly waived its sovereign immunity to a limited extent by the enactment of G.S. § 20-179.3, and that the DMV had the ability to comply with the orders entered by Judge Blick on 3 August 2001 and Judge Leech on 6 August 2001.

The State filed notice of appeal to this Court. Following a hearing, the district court dismissed the appeal, concluding that appeal should have been filed with the superior court within ten days of the order. The State filed a petition for writ of certiorari in this Court, which we allowed. Thus, the case is properly before us. For the following reasons discussed below, we affirm.

Analysis

Before discussing the State's argument, we first address a question of mootness on our own motion. Since Judge Vincent's 10 December 2001 Order was entered, the revocation of Bowes' license has run and his limited driving privilege has expired.

In general, "an appeal presenting a question which has become moot will be dismissed." Matthews v. Dept. of Transportation, 35 N.C.App. 768, 770, 242 S.E.2d 653, 654 (1978). This general rule is, however, subject to exception, and one such exception is that courts may review cases that are otherwise moot but that are "capable of repetition yet evading review." In re Jackson, 84 N.C.App. 167, 170-71, 352 S.E.2d 449, 452 (1987). "There are two elements required for the exception to apply: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Crumpler v. Thornburg, 92 N.C.App. 719, 723, 375 S.E.2d 708, 711, disc. review denied, 324 N.C. 543, 380 S.E.2d 770 (1989) (citations omitted).

As we have noted, Bowes' limited driving privilege has expired and the revocation of his license has run since Judge Vincent's 10 December 2001 order. However, we believe it reasonably likely that the DMV, in considering future orders granting limited driving privileges, could repeat the action that is at issue here and face similar challenges. Consequently, we will proceed to consider the issues raised on this appeal.

A. Subject Matter Jurisdiction

The State first argues that the trial court lacked subject matter jurisdiction over the issues presented and lacked personal jurisdiction over the DMV. We disagree.

G.S. § 20-179.3(a) provides that "[a] limited driving privilege is a judgment issued in the discretion of a court for good cause shown." Subsection (d) provides that the application for a limited driving privilege may be made at or after the time of sentencing in the criminal matter to the judge presiding over the defendant's criminal trial or to the Chief District Court Judge, and no hearing may be held until a reasonable time after notice is given to the district attorney's office. Thus, we conclude that, as with other judgments, the appropriate court in which to seek enforcement of the judgment issuing the limited driving privilege is the court that issued the judgment.

Here, the district court granted Bowes a limited driving privilege on 6 August 2001. On 13 August 2001, the DMV sent Bowes the letter informing him that it considered the limited driving privilege void. Bowes then filed a motion in the cause for contempt and injunctive relief in the DWI case, in an attempt to have the court order the DMV to honor the limited driving privilege. The State argues that since Bowes sought both civil and criminal remedies, that Bowes' proper avenue to enforce the judgment was in a separate civil action. However, in G.S. § 20-179.3, the General Assembly has specifically designated the district court to determine both civil and criminal remedies. Thus, the district court was the appropriate forum to pursue these remedies, as well as the underlying judgment.

B. Personal Jurisdiction

The State also argues that the district court lacked personal jurisdiction over the DMV and, thus, any order issued compelling the DMV to act is a nullity. We disagree.

In Brower v. Killens, this Court held that the district attorney and the DMV were in privity and as such the DMV was collaterally estopped from relitigating probable cause determinations made in a prior DWI case in which the district attorney was a party. 122 N.C.App. 685, 472 S.E.2d 33 (1996), disc. review denied, 345 N.C. 625, 481 S.E.2d 86 (1997). Indeed, the Brower Court noted that "as DMV is also a servant of the people ..., we conclude the district attorney and DMV actually represent the same interest in driving while impaired cases—that of the citizens of North Carolina in prohibiting individuals who drive under the influence of intoxicating substances from using their roads." Id. at 688, 472 S.E.2d at 35.

Although the Brower Court limited its holding to collateral attacks upon probable cause determinations, we find it easily distinguishable because the Brower decision was based upon the "fundamental difference between criminal prosecutions and civil license revocation proceedings." Id. at 690, 472 S.E.2d at 36. Here, we are faced not with two separate proceedings—one criminal and one civil—rather, we are faced with a single criminal proceeding. In addition, we note that section 20-179.3 mandates that the district attorney receive notice of the application for a limited driving privilege prior to a hearing on such. Since the DMV is the intended audience of a limited driving privilege, the statute implicitly places the district attorney in privity with the DMV for purposes of limited driving proceedings.

C. Sovereign Immunity

The State further contends that Bowes is barred by sovereign immunity from seeking to hold the DMV in contempt or from seeking injunctive relief against the DMV. We note that the doctrine of sovereign immunity does bar the Court from holding the DMV in contempt because the State has not waived immunity to that extent. N.C. Dept. of Transportation v. Davenport, 334 N.C. 428, 432 S.E.2d 303 (1993) (sovereign immunity bars the court from holding administrative agencies in contempt). However, the district court, having jurisdiction over the parties and the subject matter, could properly enter and enforce its judgment. See Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953) (...