State v. Atwood

HEDRICK, Judge.

A valid conviction under G.S. 20-28 (a) for driving while one’s license is suspended requires proof of three (3) elements. The State must prove that the defendant (1) operated a motor vehicle, (2) on a public highway, (3) while her driver’s license was suspended. State v. Cook, 272 N.C. 728, 731, 158 S.E. 2d 820, 822 (1968) ; State v. Newborn, 11 N.C. App. 292, 181 S.E. 2d 214 (1971). It is to the sufficiency of the proof of the suspension that the defendant focuses her arguments. The defendant contends that for the jury to find there was a valid suspension, the State must show that the defendant had an opportunity for a hearing before the effective date of the suspension and that the defendant had actual notice of the impending suspension and of the right to a hearing. It is the defendant’s contention that minimum due process requires as much, and submits as error the court’s refusal to dismiss the case for lack of proof of these elements by the State.

The defendant also, assigns as error the court’s instructions to the jury that a suspension is effective when the Department of Motor Vehicles deposits the notice in the United States mail át least four days prior' to the effective date of the suspension in an envelope with postage prepaid addressed to the defendant at her address as shown by the records of the Department of Motor Vehicles. The defendant argues that the court should have instructed the jury that a prior hearing and actual notice of the suspension and right to a prior hearing were necessary for the suspension to be valid. In our opinion, defendant’s assignments of error are without merit.

G.S. 20-48 in pertinent part provides that:

“. . . notice [of suspension] shall be given-either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at *448his address as shown by the records of the Department [of Motor Vehicles]. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice.”
G.S. 20-16(d) in pertinent part provides that:
“Upon suspending the license of any person as hereinbefore in this section authorized, the Department shall immediately notify the licensee in writing and upon his request shall afford him an opportunity for a hearing, unless a preliminary hearing was held before his license was suspended, as early as practical within not to exceed 20 days after receipt of such request. . . .”
G.S. 20-25 provides, in pertinent part, that:
“Any person . . . whose license has been . . . suspended . . . except where each cancellation is mandatory under the provisions of the Article, shall have a right to file a petition within 30 days thereafter for a hearing in the matter in the superior court. . . .”

In State v. Teasley, 9 N.C. App. 477, 176 S.E. 2d 838 (1970), cert. denied 277 N.C. 459, 177 S.E. 2d 900 (1970), Chief Judge Mallard, speaking for this court at page 486, said :

“We hold that G.S. 20-48, which is the statute providing for the manner in which notice is to be given, is reasonably calculated to assure that notice will reach the intended party and afford him the opportunity of resisting or avoiding the proposed suspension, as well as to give him notification of the actual suspension of his operator’s license and driving privilege.”

Judge Mallard also said at page 487:

“ . . . that the provisions of G.S. 20-48, together with the provisions of G.S. 20-16 (d), relating to the right of review, and the provisions of G.S. 20-25, relating to the right of appeal, satisfy the requirements of procedural due process.

The defendant contends that the foregoing holding in Teasley has been abrogated by the holding of the United States Supreme Court in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed. 2d 90 (1971), decided subsequent to our decision in Teasley. We do not agree.

*449The facts in Bell indicate that under Georgia’s motor vehicle safety responsibility statute, an uninsured motorist, if involved in an accident, is required to post security or be subject to having his operator’s license suspended. The petitioner was involved in an accident and did not post security, but at an administrative hearing prior to suspension, the petitioner offered to show that he was not liable for the accident. Such evidence was refused as being irrelevant to the issue of compliance with the statute. The decision of the administrative hearing was upheld in the Georgia courts.

The United States Supreme Court granted certiorari and ruled that whether the entitlement of a license is denominated a “right” or a “privilege,” “ [s] uspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L.Ed. 2d 349, 89 S.Ct. 1820 (1969) ; Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed. 2d 287, 90 S.Ct. 1011 (1970)” Id. at 539. In reversing the Georgia courts, the Supreme Court went on to say that the fault or possible liability of the defendant for the accident was an important element of the State’s right to suspend the operator’s license, and a refusal to hear evidence on that subject was a denial of due process.

As the defendant contends, this was an important case in defining the rights of a license holder, and the holding does require notice and an opportunity to be heard on the issue of liability, but we have examined that case and can find nothing in it concerning the manner in which notice must be given. We find nothing in Bell which in any way abrogates the holding in Teasley.

Addressing ourselves to defendant’s contention that Bell requires that the defendant be afforded a meaningful hearing before the Department of Motor Vehicles would have the authority to suspend the driving privileges of one holding a valid operator’s license, we are of the opinion that in the present case, under North Carolina’s statutes, the defendant was afforded such a meaningful hearing. She was actually ' charged and convicted of the speeding offenses which ultimately resulted in the administrative action of the Department in suspending her license. When the defendant’s guilt or innocence in the speeding cases was adjudicated, the question of probable *450liability discussed in Bell was determined. At that point, a hearing before the Department of Motor Vehicles could have reviewed nothing more than the record of the defendant’s speeding convictions. If further hearing is required to satisfy the due process requirements of the Fourteenth Amendment, we are of the opinion that G.S. 20-16 (d) meets these requirements by affording the defendant an opportunity for such a hearing. State v. Teasley, supra, makes it clear that giving notice to the defendant as provided in G.S. 20-48 satisfies the requirements of due process with respect to the notice of an opportunity for a hearing as well as of the suspension itself.

We hold the defendant had a fair trial, free from prejudicial error.

No error.

Judge Britt concurs. Judge Martin dissents.