Walking A Fine, Straight Line: DWI License Revocation and Double Jeopardy
It is commonly known—whether from legal training or from the 1999 thriller “Double Jeopardy”—that individuals cannot face multiple criminal punishments for the same offense. The line between civil penalty and criminal punishment can apparently be a fine one. Courts have realized that certain civil penalties, while not formally characterized as punitive, can amount to criminal punishment and thus violate the double jeopardy clause of the Constitution.
In January 2013, the North Carolina Court of Appeals found one such scenario. The court determined that a one-year disqualification of a person’s commercial driver’s license (CDL)—a “civil” penalty—in combination with a criminal prosecution for DWI amounts to double jeopardy.
Based on the disqualification’s overwhelmingly disproportionate nature, which was intended as a punishment rather than a remedial measure, the Court made the right decision.
Bobby McKenzie, a commercial truck driver for a logging company, was arrested for driving while impaired around 1:00 am on July 4, 2010. At the time, he was driving a non-commercial vehicle for non-commercial purposes. Based on his 0.08 blood alcohol level—the minimum for a DWI in North Carolina—a magistrate issued a revocation order pursuant to N.C. Gen. Stat. § 20-16.5, which provides for revocation of a person’s driver’s license for drunk driving. The magistrate also seized McKenzie’s CDL, which he had obtained for work purposes.
The revocation order for McKenzie’s personal license was to remain in effect for a 30-day period, after which Mr. McKenzie could reclaim it by paying a $100 civil revocation fee. His CDL, on the other hand, was disqualified for one year pursuant to N.C. Gen. Stat. § 20-17.4(a)(7), which disqualifies anyone whose personal license is revoked from retrieving their CDL for one year regardless of the outcome of their case—a harsh result for someone who has not yet had his day in court.
On August 5, 2010, McKenzie paid the civil revocation fee and reclaimed his non-commercial license, but was still disqualified from driving commercial vehicles until July 4, 2011. Because he was not allowed to drive a commercial truck anymore, he became a logger at the company, which cut his pay in half. Months later, McKenzie’s employer fired him because it had more loggers than necessary to complete its work.
McKenzie filed a motion to dismiss his DWI charge based, inter alia, on a double jeopardy violation. The Superior Court denied the motion to dismiss, and McKenzie appealed. To determine whether the civil penalty was sufficiently punitive to constitute a criminal punishment for purposes of the double jeopardy clause, the Court examined the case using the several factors found in the Hudson test.
First, the court found that N.C. Gen. Stat. § 20-17.4 clearly promotes the traditional aims of punishment: retribution and deterrence. Second, the underlying behavior—drunk driving—is a crime. Third, the statute’s remedial purpose of discouraging drunk driving is excessive. Based on a balance of these factors, along with several others, under the Hudson test the statute’s civil penalty is so punitive that it transforms a civil penalty into a criminal punishment. Accordingly, the Court held that prosecuting a defendant for DWI on top of the one-year civil disqualification of a person’s CDL revocation for impaired driving constitutes double jeopardy.
Judge Hunter dissented, arguing that the deterrent effect of the statute “is mitigated by the fact that [it] only disqualifies defendant from driving a commercial vehicle, not his personal vehicle.” However, because N.C. Gen. Stat. § 20-16.5 already disqualifies McKenzie from driving his personal vehicle, it is inappropriate to conceive of this as a mitigating factor. If N.C. Gen. Stat. § 20-17.4 also covered personal vehicle disqualification, McKenzie would be dealing with triple jeopardy.
Judge Hunter also reasoned that the remedial purpose of the civil penalty was not excessive in relation to its public safety purpose. In other words, the effect of the one-year CDL disqualification is substantially outweighed by the commitment to protect the public from “the great harm posed by commercial vehicles.” This reasoning might make sense if McKenzie had been driving his commercial truck while impaired, rather than his own personal vehicle at a weekend event unrelated to his work.
This situation is analogous to something expressly prohibited in this country’s courtrooms: character evidence. In most courts, character evidence is inadmissible to prove that a defendant acted in accordance with that character trait on the occasion in question. For example, it is impermissible for a defendant in a personal injury case to show that the plaintiff has a propensity for carelessness in order to show that the plaintiff acted carelessly in the instance in question.
By automatically imposing a one-year disqualification of a CDL based on a non-commercial driving violation, the legislature is assuming that if a person drives his non-commercial vehicle while intoxicated, he is more likely to drive a commercial vehicle while intoxicated. Or in the present case, McKenzie driving his car over the legal limit after a Saturday night Fourth of July celebration makes him more likely to drive his company’s 18-wheeler in an intoxicated state while working.
Although McKenzie made a poor decision to drive after consuming too many alcoholic beverages, he was not driving an eighteen-wheeler, nor was he driving for a work-related purpose. In other words, after a Saturday night Independence Day celebration, McKenzie foolishly chose to drive his personal vehicle and put the lives of other citizens driving on the road at risk. Consequently, he lost the license that provides him with his employment and income for one year.
This would be a different situation altogether if McKenzie had been driving an eighteen-wheeler while impaired, or even if he were simply challenging the 30-day revocation of his non-commercial license. In fact, North Carolina courts have held that 10- and 30-day license revocations in combination with a DWI prosecution, whether civil or criminal in nature, do not amount to double jeopardy. Neither of these reasonably-termed sanctions were so punitive in purpose or effect that it equated to criminal punishment. As the Court reasoned, the primary purpose of short-term license revocation is remedial: immediately removing drunk drivers from the road while they are incapacitated and serving as an interim highway safety measure until after a person is afforded a trial.
A one-year revocation of a CDL based on a non-commercial driving infraction, however, is not a short-term remedial measure. Instead, it clearly reaches the criminal punishment threshold, as the Court concluded. It is an overwhelmingly disproportionate response that is meant as a retributive measure rather than a rehabilitative or remedial action. If the state appeals, which seems likely, the Supreme Court of North Carolina should affirm this decision.
McKenzie deserves punishment for his poor decision, but it should be up to the court to determine a reasonable punishment beyond the short-term remedial response assigned by the general assembly. He should not have a legislatively mandated long-term punishment followed by a second punishment that is up to the discretion of the court.