North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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April 25, 1977 Motor Vehicles; Driver's License; Drunken Driving; Time Period within which a Conviction will Constitute a Second or Third Conviction for Driver's License Revocation Purposes

Subject:

 

Requested By: Honorable Patrick Exum Chief District Court Judge 8th Judicial District

 

Questions: (1)

Upon fourth conviction of driving under the influence within five years of a prior conviction, is the revocation of defendant's operator's license by the Division of Motor Vehicles mandatory?
(2)
Where the revocation of defendant's operator's license is mandatory upon conviction, should the court require the surrender of the license to the Clerk of Court to be forwarded to the Division of Motor Vehicles?
(3)
Where the revocation of the defendant's license is mandatory under the statutes, is it required that the court upon conviction set out the period of revocation?
(4)
Are the periods of revocation as set out in G.S. 20-19(d) and (e) mandatory or discretionary with the Division of Motor Vehicles?
(5)
Where a fourth conviction occurs within four and one-half years of a prior conviction with the first and second conviction having occurred more than five years prior thereto, which subsection of G.S. 20-19 is applicable, (d) or (e)?
(6)
Upon conviction for driving under the influence, how should the court word its judgment so as not to presume to preempt the mandate of the statutes?
(7)
Is the action of revocation in a situation as set out in (5) above taken by the Division of Motor Vehicles or by the Court; i.e., is the act of revoking a license correctly a part of the court's judgment or is it an administrative act of the Division of Motor Vehicles?
(8)
If the act of revocation of a driver's license is administrative, does the court have any authority to set the period of revocation, unless the period of revocation conforms to the statutory mandate?
(9)
Should the Court where its judgment in a driving under the influence case sets a one-year period of revocation when the ocnviction upon which the judgment rendered was, in fact, a fourth conviction, alter or correct its judgment in open court prior to recess to insert the correct statutory period of revocation, the defendant having paid his fine and cost?

Conclusions: (1)

Yes.
(2)
Yes.
(3)
No.
(4)
Mandatory.
(5)
G.S. 20-19(e).
(6)
The judgment relative to revocation of operator's license should be to the effect, "surrender his operator's license and not operate a motor vehicle on the public highways of North Carolina until his license is restored by the Division of Motor Vehicles."
(7)
The revocation of the motor vehicle operator's license is normally an administrative function with right of appeal to the court except where the revocation is made a condition of a suspended sentence.
(8)
The revocation of a motor vehicle operator's license by the court as a condition of a suspended sentence must be with the agreement of the defendant and as such would not affect the authority of the Division of Motor Vehicles to revoke nor be required to meet any specific statutory requirement.
(9)
Yes. However such would not be necessary since it would not affect the action of the Division of Motor Vehicles under the applicable statutes.

As to Conclusion (1), upon receipt of notice of final conviction of driving under the influence of intoxicating beverage, the Division of Motor Vehicles must forthwith revoke the operator's license of the person so convicted (G.S. 20-17(2) and G.S. 20-19(d),(e) and (f)).

As to conclusion (2), G.S. 20-24(a) reads as follows:

"(a) Whenever any person is convicted of any offense for which the Article makes mandatory the revocation of the operator's or chauffeur's license of such person by the Division, the court in which such conviction is had shall require the surrender to it of all operators' and chauffeurs' licenses then held by the person so convicted and the court shall thereupon forward the same, together with a record of such conviction, to the Division within 30 days.

The clerks of court, assistant clerks of court and deputy clerks of court in which any person is convicted, and as a result thereof the revocation or suspension of the operator's or chauffeur's license of such person is required under the provisions of this Chapter, are hereby designated as agents of the Division of Motor Vehicles for the purpose of receiving all operator's and chauffeurs' licenses required to be surrendered under this section, and are hereby authorized to and shall give to such licensee a dated receipt for any such license surrendered, such receipt to be upon such form as may be approved by the Commissioner of Motor Vehicles. The original of such receipt shall be mailed forthwith to the Driver License Section of the Division of Motor Vehicles together with the operator's or chauffeur's license. Any operator's or chauffeur's license which has been surrendered and for which a receipt has been issued as herein required shall be revoked or suspended as the case may be as of the date shown upon the receipt issued to such person."

In the event a person convicted of an offense for which revocation is mandatory does not have a driver's license, the better practice would be for the Clerk to file a form DL 47 (receipt for license) if the court orders surrender of license pursuant to G.S. 20-24 in order that the correct period of revocation can be established. A notation should be made on the DL 47 that the defendant was ordered to surrender his license but did not have one.

As to conclusions (3), (6) and (9), there is no necessity that the court specify a period of revocation except where such is done as a condition of a suspended sentence. A judgment is adequate which orders the defendant to surrender his operator's license and not operate a motor vehicle upon the public highways of North Carolina until his license is restored by the Division of Motor Vehicles.

As to conclusion (4), the revocation of a motor vehicle operator's license is mandatory upon conviction of operating a motor vehicle while under the influence of intoxicating liquor pursuant to G.S. 20-17(2). G.S. 20-19(d), (e) and (f) establish the period of time such revocation shall run.

As to conclusions (5) and (7), to impose the periods of revocation as provided under G.S. 20-19(d), (e) and (f), first the period of revocation for a first conviction of drunk driving in one year. (G.S. 20-17(2); G.S. 20-19(f).

G.S. 20-19(c) sets the period of revocation for a third conviction as permanent.

Prior to 1959, there were no time limitations in the statutes to delineate any period within which a second or third conviction had to occur before the more severe revocations could be imposed. For example in Harrell vs. Scheidt, 243 N.C. 735 (1956), Parker, J. held that the greater period of revocation for second conviction was properly imposed when a time lapse of almost seven years between convictions was involved.

Section 11A, Chapter 1264, Session Laws of 1959 inserted the requirements that a second conviction must occur "within three years after a prior conviction" and a third conviction must occur "within five years after a prior conviction" before the greater periods of revocation could be imposed. (Emphasis supplied)

Possibly it was contemplated that all three convictions must occur within an eight year period before a permanent revocation for third conviction could be imposed. But the use of the term "prior conviction" in both insertions does not have that effect.

Since revocation for any conviction of drunk driving is mandatory (G.S. 2-17(2)), the result of this language is to require the Department to revoke for four years only where the second conviction occurs within three years after the first conviction. If the second conviction occurs more than three years after the first conviction, the Department must revoke for a period of one year (G.S. 20-19(f)) which is, of course, the same period provided for a first conviction.

Once a second numerical conviction has occurred, however, the date of the first numerical conviction becomes immaterial in determining whether any subsequent conviction will constitute a third conviction. G.S. 20-19(e) establishes the date of the "prior conviction" as the beginning point for the five year period, and any conviction occurring within five years after the date of the second numerical conviction must be treated as a third conviction.

The three and five year limitation periods discussed herein have nothing to do with determining whether greater punishment for repeated offenses may be imposed by the court in criminal prosecutions. N.C.A.G. Opinion of 9 November 1959 to William P. Mayo, Solicitor, Beaufort County Recorder's Court, Washington, N.C. Nor does the action of the court in denominating a particular offense as second or third offense in any way affect the determination by the Department from its records of the period of revocation which must be imposed. Harrell v. Scheidt, 243 N.C. 735 (1956); Carmichael v. Scheidt, 249 N.C. 247 (1958).

As to conclusion (8) as hereinbefore set out, the court does not determine the period of suspension except in the case of a suspended sentence wherein a revocation of operator's license is a condition thereof. In such cases, the defendant must consent thereto, expressly or by implication. State v. Cole, 241 N.C. 576.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General