North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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June 13, 2001

Mr. Mike Bryant Director, Driver License Section

N.C. Division of Motor Vehicles 1100 New Bern Avenue Raleigh, N.C. 27697

Re: Advisory Opinion; Expungement pursuant to N.C. Gen. Stat. § 15A146 of a 30-day drivers license revocation under N.C. Gen. Stat. § 20

16.5.

Dear Mr. Bryant:

You have requested an advisory opinion concerning whether an order of expungement pursuant to N.C. Gen. Stat. § 15A-146 requires the Division of Motor Vehicles to expunge records of a 30-day drivers license revocation under N.C. Gen. Stat. § 20-16.5 based on the same operation of a vehicle that gave rise to a criminal charge against the driver which is subsequently dismissed. As explained more fully below, N.C. Gen. Stat. § 15A-146, which prescribes procedures for expunction of criminal records, does not apply to records of civil drivers license revocations maintained by the Division of Motor Vehicles.

The same operation of a motor vehicle may give rise to two separate and distinct proceedings, a civil license revocation procedure and a criminal action. However, “[e]ach action proceeds independently of the other, and the outcome of one is of no consequence to the other.” Joyner v. Garrett, 279 N.C. 226, 238, 182 S.E.2d 553, 562 (1971). A drivers license “is not a natural or unrestricted right, nor is it a contract or property right in the constitutional sense. It is a conditional privilege, and the General Assembly has full authority to prescribe the conditions upon which licenses may be issued and revoked.” Id. at 235, 182 S.E.2d at 559.

The General Assembly, in enacting N.C. Gen. Stat. § 20-16.5, has determined that a person charged with an implied consent offense based on reasonable grounds, who either refuses to submit to chemical analysis or who has an alcohol concentration in excess of the level allowed by law, shall have his driving privileges revoked for a period of 30 days, or more in some instances. See N.C. Gen. Stat. § 20-16.5(b) & (e). The revocation under N.C. Gen. Stat. § 20-16.5 “merely signifies the failure of the driver to adhere to the conditions imposed by the legislature on the driver’s license.” State v. Oliver, 343 N.C. 202, 210, 470 S.E.2d 16, 21 (1996). Revocations pursuant to N.C. Gen. Michael Bryant

Page 2 June 13, 2001

Stat. § 20-16.5 are separate and distinct from any criminal proceedings and are clearly civil in nature. See N.C. Gen. Stat. § 20-16.5(o) (“Proceedings under this section are civil actions . . .”).

Upon a finding by a judicial official that a person is subject to revocation under N.C. Gen. Stat. § 20-16.5, the person must serve the period of revocation unless he successfully challenges the validity of the revocation. The General Assembly has provided in N.C. Gen. Stat. § 20-16.5(g) a specific means for challenging and removing a revocation under N.C. Gen. Stat. § 20-16.5. Pursuant to N.C. Gen. Stat. § 20-16.5(g), a person may request a hearing to challenge the revocation within 10 days of the effective date of the revocation. A magistrate or judge may either uphold the revocation or order it be rescinded. If the revocation is upheld, or if the person does not challenge the revocation, the person must serve the revocation before his or her license will be restored.

Records of the Division only show a 30-day revocation period for persons who failed to challenge the revocation, or lost their challenge after the hearing allowed by statute. Any such record is an accurate record of a revocation actually served by a driver. Further, the Division must keep a record of all license revocations. N.C. Gen. Stat. § 20-26(a). “[W]hile courts have the inherent power and duty to take such action as is necessary to make their records speak the truth, they are without authority to annul or expunge an accurate record, or the records of another agency of government, absent the authority of statute.” Opinion of the Attorney General to James J. Coman, Director, State Bureau of Investigation, ___ N.C.A.G.___ (January 3, 1996) ( citing State v. Bellar, 16 N.C. App. 339, 192 S.E.2d 86 (1972)). (A copy of this Opinion is attached for reference.)

N.C. Gen. Stat. §§ 15A-145 and 15A-146 are part of the Criminal Procedure Act. Since these expungement statutes operate as exceptions to the general prohibition against altering records, the rules of statutory construction require they be strictly construed. See ___ N.C.A.G. ___ (January 3, 1996), supra. N.C. Gen. Stat. § 15A-146(a) allows the expungement “from all official records any entries relating to [the person’s] apprehension or trial.” (emphasis added) Records of the Division concerning civil revocations under N.C. Gen. Stat. § 20-16.5 relate to drivers’ failure to adhere to conditions imposed by the legislature, and not to their apprehension or trial on a criminal charge. Therefore, we conclude that N.C. Gen. Stat. § 15A-146, when strictly construed, does not authorize expungement of the record of a civil license revocation. Although there are no reported North Carolina appellate cases directly addressing this issue, the courts of several other states have reached similar conclusions when faced with the same or a similar issue. See, e.g., King v. State, 742 So. 2d 44 (La. Ct. App. 1999)(expungement of criminal arrest record did not affect suspension of drivers license for blood alcohol level above legal limit); Barlow v. Comm’r of Public Safety, 365 N.W.2d 232 (Minn. 1985)(absent express statutory authority, court has no power to expunge license revocation record); Director of Revenue v. Klenke, 29 S.W.3d 391 (Mo. Ct. App. 2000)(statute providing for expungement of all official records of individual’s DWI arrest, plea, trial, or conviction did not allow expungement of administrative license revocation); State v. Frangul, 867 P.2d 397 (Nev. 1994)(civil administrative license revocation proceeding is separate and distinct from DUI arrest, and statute providing for expungement of all proceedings related to the arrest held not to allow

Michael Bryant Page 3 June 13, 2001

expungement of civil license revocation).

For the foregoing reasons, we conclude that the criminal expungement statutes do not authorize the expungement of a record of a civil revocation under N.C. Gen. Stat. § 20-16.5.

Very truly yours,

Reginald L. Watkins Senior Deputy Attorney General

Hal F. Askins Special Deputy Attorney General