State v. McKenzie
| Decision Date | 15 January 2013 |
| Docket Number | No. COA12–436.,COA12–436. |
| Parties | STATE of North Carolina v. Bobby Lee McKENZIE. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from order entered 13 March 2012 by Judge Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals 10 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.
Hunter & Price, P.A., by Justin B. Hunter and G. Braxton Price, for defendant-appellant.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin, Matthew G. Pruden, and Jacob H. Sussman, for North Carolina Advocates for Justice, amicus curiae.
Bobby McKenzie (“Defendant”) appeals an order (i) reversing the District Court's order that dismissed his Driving While Impaired (“DWI”) charge; (ii) reinstating his DWI charge; and (iii) remanding his case for trial. Defendant contends the trial court erred because (i) prosecution for DWI subjects him to double jeopardy; and (ii) disqualification of his commercial driver's license (“CDL”) violated his substantive and procedural due process rights. Upon review, we reverse the trial court's decision.
Defendant was a commercial truck driver for KBJ Logging (“KBJ”) in Wallace. On 9 July 1996, Defendant applied for a Class A CDL under N.C. Gen.Stat. §§ 20–4.01(2a) and 20–4.01(3d). He successfully completed all tests required by the North Carolina Department of Motor Vehicles (“DMV”). The DMV issued Defendant a Class A CDL on 9 August 1996. Defendant renewed his CDL on 21 March 2000, 24 March 2005, and 24 March 2010. On 4 July 2010, Defendant had a valid Class A CDL.
In the early hours of 4 July 2010, Defendant was driving a non-commercial motor vehicle. At approximately 1:10 AM, Defendant submitted to a show of authority by Trooper D.M. Rich (“Rich”) of the North Carolina State Highway Patrol. Rich arrested Defendant for (i) driving left of center (N.C. Gen.Stat. § 20–146 (2011)), and (ii) DWI (N.C. Gen.Stat. § 20–138.1 (2011)). At Rich's request, Defendant took two Intoxilyzer EC/IR–II breath tests at 2:37 AM and 2:40 AM. Both tests indicated Defendant had a blood alcohol concentration of 0.08 or higher.
Defendant appeared before Duplin County Magistrate Albert Alabaster (“Alabaster”) later that night. Based on the breath test results, Alabaster issued a Revocation Order When Person Present (the “Revocation Order”) pursuant to N.C. Gen.Stat. § 20–16.5.1 He then seized Defendant's CDL. The Revocation Order “remain[ed] in effect at least thirty (30) days” from its issuance. According to the Revocation Order, Defendant could reclaim his license at the end of the thirty-day period if he paid a $100.00 civil revocation fee to the Duplin County Clerk of Superior Court. The Revocation Order also described Defendant's Nothing in the record indicates Defendant contested the 30–day revocation.
On 20 July 2010, the DMV sent Defendant a letter informing him that, effective 4 July 2010, his CDL was disqualified for one year. The letter referenced N.C. Gen.Stat. § 20–17.4(a)(7), which states if an individual has “[a] civil license revocation under G.S. 20–16.5 ... arising out of a charge that occurred ... while the person was holding a commercial drivers license[,]” the individual is disqualified from driving a commercial vehicle for one year. The letter also said “[a] hearing is not authorized by statute.”
On 5 August 2010, Defendant went to the Duplin County Clerk of Superior Court's Office, paid the civil revocation fee, and retrieved his Class A CDL. However, under N.C. Gen.Stat. § 20–17.4(a)(7) he was still disqualified from driving a commercial vehicle until 4 July 2011.
After his commercial driving disqualification, Defendant became a logger for KBJ instead of a truck driver. KBJ cut his pay in half. A few months later, KBJ fired Defendant because its logging crews were overstaffed.
On 25 August 2011, Defendant filed a motion to dismiss his DWI charge due to: (i) due process violations; (ii) double jeopardy violations; and (iii) equal protection violations. On 6 September 2011, the Duplin County District Court granted his motion based on: (i) due process violations; and (ii) double jeopardy violations. The State timely appealed to Duplin County Superior Court. On 13 March 2012, the Duplin County Superior Court entered an order (i) reversing the District Court's order; (ii) reinstating Defendant's DWI charge; and (iii) remanding the case to District Court for further proceedings. The Superior Court's order also certified that “an appeal of this Order is appropriately justiciable in the appellate division as an interlocutory matter” pursuant to N.C. Gen.Stat. § 15A–1432(d). Defendant filed timely notice of appeal on 19 March 2012.
This Court has jurisdiction to hear the instant appeal pursuant to N.C. Gen.Stat. §§ 15A–1432(d) and 7A–27(d) (2011).
If the superior court finds that a judgment, ruling, or order dismissing criminal charges in the district court was in error, ... [t]he defendant may appeal this order to the appellate division ... by an interlocutory appeal if the defendant, or his attorney, certifies to the superior court judge who entered the order that the appeal is not taken for the purpose of delay and if the judge finds the cause is appropriately justiciable in the appellate division as an interlocutory matter.
N.C. Gen.Stat. § 15A–1432(d) (2011). Although the present appeal is interlocutory, it is reviewable under N.C. Gen.Stat. § 7A–27(d) because it affects “substantial rights.” SeeState v. Major, 84 N.C.App. 421, 422, 352 S.E.2d 862, 863 (1987) (); State v. Johnson, 95 N.C.App. 757, 758, 383 S.E.2d 692, 693 (1989) ().
“The standard of review for alleged violations of constitutional rights is de novo.”State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review denied,363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
“[A]s a general rule this Court will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist.” Kendrick v. Cain, 272 N.C. 719, 722, 159 S.E.2d 33, 35 (1968).
Before determining whether an appeal is moot when the defendant has completed his sentence, it is necessary to determine whether collateral legal consequences of an adverse nature may result. ‘[W]hen the terms of the judgment below have been fully carried out, if collateral legal consequences of an adverse nature can reasonably be expected to result therefrom, then the issue is not moot and the appeal has continued legal significance.’
State v. Black, 197 N.C.App. 373, 375–76, 677 S.E.2d 199, 201 (2009) (quoting In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977)) (alteration in original).
On appeal, Defendant makes two arguments: (i) the trial court erred because his DWI prosecution constitutes double jeopardy; and (ii) the trial court erred because his one-year CDL disqualification under N.C. Gen.Stat. § 20–17.4(a)(7) violated his procedural and substantive due process rights. Upon review, we reverse the trial court's decision.
Defendant first argues the trial court erred because prosecuting him for DWI subjects him to double jeopardy. Specifically, he argues that his prior one-year CDL disqualification under N.C. Gen.Stat. § 20–17.4(a)(7) constitutes a prior criminal punishment. We agree.
The Fifth Amendment of the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; see also Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (). “The Law of the Land Clause incorporates similar protections under the North Carolina Constitution.” State v. Evans, 145 N.C.App. 324, 326–27, 550 S.E.2d 853, 856 (2001) (quotation marks omitted) (quoting State v. Oliver, 343 N.C. 202, 205, 470 S.E.2d 16, 18 (1996)); seeN.C. Const. art. I, § 19.
Accordingly, an individual cannot face multiple criminal punishments for the same offense. SeeState v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986). However, the Double Jeopardy Clause does not protect against receiving both a civil penalty and a criminal punishment for the same offense. See State v. Wagoner, 199 N.C.App. 321, 332, 683 S.E.2d 391, 400 (2009). Furthermore, “[a]n Act found to be civil cannot be deemed punitive as applied to a single individual in violation of the Double Jeopardy ... clause because the impact on a single defendant is irrelevant in a double jeopardy analysis.” State v. Reid, 148 N.C.App. 548, 552, 559 S.E.2d 561, 564 (2002) (quotation marks and citation omitted) (alterations in original).
In Hudson v. United States, the U.S. Supreme Court outlined a two-part test to determine whether a punishment is criminal or civil. 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997...
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