State v. McKenzie

HUNTER, JR., Robert N., Judge.

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.

I. Facts & Procedural History

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.

*210In the early hours of 4 July 2010, Defendant was driving a noncommercial 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 “right to a hearing to contest the validity of this Revocation before a magistrate or judge. To do so, a written request must be made within ten (10) days of the effective date of the revocation.” 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. *211A 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.

II. Jurisdiction & Standard of Review

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.” See State v. Major, 84 N.C. App. 421, 422, 352 S.E.2d 862, 863 (1987) (“[A] defendant’s right not to be unconstitutionally subjected to multiple criminal trials for the same offense is a substantial right.”); State v. Johnson, 95 N.C. App. 757, 758, 383 S.E.2d 692, 693 (1989) (holding an interlocutory appeal in a criminal case is reviewable when it raises a due process claim).

“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 *212Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.”). “ ‘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. ‘[Wjhen 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).

III. Analysis

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.

A. Double Jeopardy

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 (1969) (incorporating the Fifth Amendment’s *213Double Jeopardy Clause against the states through the Fourteenth Amendment). “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)); see N.C. Const. art. I, § 19.

Accordingly, an individual cannot face multiple criminal punishments for the same offense. See State 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 (1997). First, “[a] court must. . . ask whether the legislature, ‘in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’ ” Id. (quoting United States v. Ward, 448 U.S. 242, 248 (1980)). This portion of the Hudson test is “a matter of statutory construction.” Id. (citing Helvering v. Mitchell, 303 U.S. 391, 399 (1938)). If the legislature indicated the punishment is criminal, then the Double Jeopardy Clause applies. See id.

Under the second portion of the Hudson test, “[e]ven in those cases where the legislature has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to transform] what was clearly intended as a civil remedy into a criminal penalty[.]” Id. (internal citations and quotation marks omitted) (second alteration in original). Thus, a civil penalty can have such a punitive effect that it becomes a criminal punishment for double jeopardy purposes.

To determine whether a civil penalty is so punitive that it becomes a criminal punishment, we examine seven factors:

(1) [w]hether the sanction involves an affirmative disability or restraint;
*214(2) whether it has historically been regarded as a punishment;
(3) whether it comes into play only on a finding of scienter;
(4) whether its operation will promote the traditional aims of punishment - retribution and deterrence;
(5) whether the behavior to which it applies is already a crime;
(6) whether an alternative purpose to which it may rationally be connected is assignable for it; and
(7) whether it appears excessive in relation to the alternative purpose assigned.

Id. at 99-100 (alteration in original) (quotation marks omitted) (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)). When we analyze these factors, “no one factor should be considered controlling.” Id. at 101. Furthermore, “only the clearest proof [of these factors] will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 100 (quotation marks and citation omitted).

North Carolina courts have previously applied this type of analysis to 30-day license revocations under N.C. Gen. Stat. § 20-16.5 in Oliver, 343 N.C. 202, 470 S.E.2d 16, Evans, 145 N.C. App. 324, 550 S.E.2d 853, and Reid, 148 N.C. App. 548, 559 S.E.2d 561.

In Oliver, our Supreme Court decided whether a 10-day license revocation after a DWI arrest subjected an individual to a double jeopardy violation. Oliver, 343 N.C. at 210, 470 S.E.2d at 21; see N.C. Gen. Stat. § 20-16.5 (2011). There, our Supreme Court held no double jeopardy violation occurred because the revocation was only a civil remedial sanction. Id. at 210, 470 S.E.2d at 21.

In Evans, this court considered whether an amended version of N.C. Gen. Stat. § 20-16.5 requiring a thirty-day revocation constituted a double jeopardy violation. 145 N.C. App. at 325, 550 S.E.2d at 855. In that case, we applied the Hudson test to determine “N.C.G.S. § 20-16.5 is neither punitive in purpose nor effect[.]” Id. at 334, 550 S.E.2d at 860. However, we cautioned:

[although we find no punitive purpose on the face of N.C.G.S. § 20-16.5, we are aware that, at some point, a *215further increase in the revocation period by the General Assembly becomes excessive, even when considered in light of the well-established goals of N.C.G.S. § 20-16.5. Whether it is a further doubling or tripling of the revocation period, there is a point at which the length of time can no longer serve a legitimate remedial purpose, and the revocation provision could indeed violate the Double Jeopardy Clause.

Id. at 332, 550 S.E.2d at 859.

In Reid, this Court considered the same version of N.C. Gen. Stat. § 20-16.5 as in Evans, but as applied to a CDL revocation. 148 N.C. App. at 550, 559 S.E.2d at 562. There we held that “[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.” Id. at 552, 559 S.E.2d at 564 (quotation marks and citation omitted) (alteration in original). We thus held, in accordance with Evans, no double jeopardy violation occurred. See id. at 553-54, 559 S.E.2d at 564-65.

In the present case, Defendant argues his prosecution for DWI subjects him to double jeopardy because his CDL was already revoked for one year under N.C. Gen. Stat. § 20-17.4. In this case of first impression, we now apply the Hudson two-part test to determine whether Defendant’s CDL disqualification is a prior criminal punishment. We distinguish our analysis of N.C. Gen. Stat. § 20-17.4 in the instant case from our analysis of N.C. Gen. Stat. § 20-16.5 in Oliver, Evans, and Reid.

Under the first portion of the Hudson test, driver’s license revocations are not expressly or impliedly criminal in nature. See Oliver, 343 N.C. at 207, 470 S.E.2d at 20 (“Historically, this Court has long viewed drivers’ license revocations as civil, not criminal, in nature.”); Seders v. Powell, 298 N.C. 453, 462, 259 S.E.2d 544, 550 (1979) (“[R]evocation proceedings are civil because they are not intended to punish the offending driver but to protect other members of the driving public.”); Joyner v. Garrett, 279 N.C. 226, 234, 182 S.E.2d 553, 559 (1971) (“Proceedings involving the suspension or revocation of a license to operate a motor vehicle are civil and not criminal in nature, and the revocation of a license is no part of the punishment for the crime for which the licensee was arrested.”).

*216Still, by applying the Kennedy factors outlined in the second portion of the Hudson test, we conclude N.C. Gen. Stat. § 20-17.4 is so punitive it becomes a criminal punishment.

Defendant concedes the first three Kennedy factors do not support a finding that N.C. Gen. Stat. § 20-17.4 constitutes a criminal punishment. Under the first Kennedy factor, since license revocation does not “approach[] the infamous punishment of imprisonment,” it does not “involve]] an affirmative disability or restraint.” Hudson, 522 U.S. at 104 (quotation marks and citation omitted); see Evans, 145 N.C. App. at 332, 550 S.E.2d at 859. Under the second Kennedy factor, license revocation has not historically been viewed as punishment. See id. at 333, 550 S.E.2d at 859. Rather, punishment has historically been addressed by the DWI criminal statutes. See id. “Moreover, revocation of a privilege voluntarily given, such as a driver’s license in this case, is characteristically free of the punitive element.” Id. (citation and quotation marks omitted). Under the third-Kennedy factor, sci-enter is not an element of the CDL disqualification provisions of N.C. Gen. Stat. § 20-17.4. See id. at 333, 550 S.E.2d at 859-60.

Nonetheless, the remaining four Kennedy factors support the conclusion that N.C. Gen. Stat. § 20-17.4 is so punitive it becomes a criminal punishment.

Under the fourth Kennedy factor, N.C. Gen. Stat. § 20-17.4 “promote[s] the traditional aims of punishment — retribution and deterrence.” Hudson, 522 U.S. at 99. Our analysis in the instant case differs from our analysis of the 10-day license revocation in Oliver and the 30-day license revocation in Evans. In Oliver and Evans, we acknowledged that license revocation has a retributive and deterrent effect. Oliver, 343 N.C. at 209, 470 S.E.2d at 21 (“We do not pretend to ignore that a driver’s license revocation, even of short duration, may, for some, have a deterrent effect.”); Evans, 145 N.C. App. at 333-34, 550 S.E.2d at 860 (“We acknowledge that [license revocation] operates as a deterrent to driving while impaired.”). On balance, however, the Oliver and Evans courts held “any deterrent effect a driver’s license revocation may have upon the impaired driver is merely incidental to the overriding purpose of protecting the public’s safety.” Evans, 145 N.C. App. at 333, 550 S.E.2d at 860 (quoting Oliver, 343 N.C. at 209-10, 470 S.E.2d at 21). In reaching this conclusion, those courts emphasized the short-term nature of the license revocation. See Oliver, 343 N.C. at 209, 470 S.E.2d at 21 (“[T]he ten-day driver’s license revocation . . . [is] neither [an] excessive nor overwhelmingly dispropor*217tionate response [] to the immediate dangers an impaired driver poses to the public and himself. . . . [S]wift action is required to remove the unfit driver from the highways in order to protect the public.”). Here, given the substantial length of the one-year disqualification, we reach the opposite conclusion: any remedial purpose behind N.C. Gen. Stat. § 20-17.4 is incidental to its deterrent and retributive goals.

Short-term license revocation does have a primary remedial purpose. It immediately removes drunk drivers from the road while they are incapacitated and “serves as an interim highway safety measure until after a person is afforded a trial.” Henry v. Edmisten, 315 N.C. 474, 489-90, 340 S.E.2d 720, 731 (1986). One-year CDL disqualification, on the other hand, does not primarily serve the same purpose. While it may have some remedial effect, we conclude the main purpose of such a lengthy disqualification period is to deter drunk driving. N.C. Gen. Stat. § 20-17.4 serves to let “persons who choose to drive while impaired know that if their actions are observed by law enforcement, they will be charged with DWI and face a temporary license revocation.” Evans, 145 N.C. App. at 333, 550 S.E.2d at 860.

We acknowledge that in Reid, we held a 30-day CDL revocation primarily served a remedial purpose because “the state has a greater interest in the public’s safety regarding commercial drivers because there exists a greater risk of harm.” 148 N.C. App. at 553, 559 S.E.2d at 564. However, given the substantial length of CDL disqualification under N.C. Gen. Stat. § 20-17.4, we do not find this argument dispositive. Here, one-year CDL disqualification primarily serves a punitive and deterrent purpose.

Under the fifth Kennedy factor, the State appropriately concedes drunk driving, the underlying behavior covered by N.C. Gen. Stat. § 20-17.4, is already a crime. See Evans, 145 N.C. App. at 334, 550 S.E.2d at 860.

“The final two factors under the Kennedy analysis require us to decide whether there is a remedial purpose behind [N.C. Gen. Stat. § 20-17.4], and if so, whether the statute is excessive in relation to the remedial purpose.” Id.

Any license revocation or suspension based on DWI arrest serves, inter alia, the remedial purpose of “removing impaired drivers from the highway while they are a risk to themselves and others.” Id. The merits of this goal are undeniably laudable. Indeed, “[t]he carnage caused by drunk drivers is well documented and needs no detailed recitation here.” South Dakota v. Neville, 459 U.S. 553, 558 (1983). *218However, a one-year CDL disqualification is excessive in relation to this remedial purpose.

In Evans, we held a 30-day license revocation is not excessive. 145 N.C. App. at 334, 550 S.E.2d at 860. However, we also cautioned that:

at some point, a further increase in the revocation period by the General Assembly becomes excessive, even when considered in light of the well-established goals of N.C.G.S. § 20-16.5. Whether it is a further doubling or tripling of the revocation period, there is a point at which the length of time can no longer serve a legitimate remedial purpose, and the revocation provision could indeed violate the Double Jeopardy Clause.

Id. at 332, 550 S.E.2d at 859. In the case at hand, there is not merely a “doubling or tripling,” but rather a twelvefold increase in the disqualification period. We conclude this has become excessive in relation to any remedial purpose behind N.C. Gen. Stat. § 20-17.4.

Based on our review of the Kennedy factors, we thus conclude N.C. Gen. Stat. § 20-17.4 is so punitive that it becomes a criminal punishment. Therefore, prosecution for DWI subsequent to license disqualification under N.C. Gen. Stat. § 20-17.4 constitutes impermissible double jeopardy. See Hudson, 522 U.S. at 99.

B. Due Process

Defendant next argues his one-year CDL disqualification under N.C. Gen. Stat. § 20-17.4 violated his due process rights. Upon review, we conclude Defendant’s due process claim is moot.

We will consider a matter moot when “the subject matter of the litigation has been settled between the parties or has ceased to exist.” Kendrick, 272 N.C. at 722, 159 S.E.2d at 35. But cf. Black, 197 N.C. App. at 375-76, 677 S.E.2d at 201 (holding a claim is not moot when “collateral legal consequences of an adverse nature” are expected). In this regard, a claim is moot when the claimant has no available remedy. See Roberts v. Madison Cnty. Realtors Ass’n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) (“A case is ‘moot’ when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. .. . Thus, the case at bar is moot if [an intervening event] had the effect of leaving plaintiff with no available remedy.”).

*219Here, the subject of Defendant’s due process claim is his one-year CDL disqualification under N.C. Gen. Stat. § 20-17.4. The disqualification became effective 4 July 2010 and terminated 4 July 2011. Nothing in the record indicates Defendant is currently disqualified from holding a CDL. Furthermore, Defendant does not contend any “collateral legal consequences” are expected. See Black, 197 N.C. App. at 375-76, 677 S.E.2d at 201. We therefore conclude Defendant’s due process claim is moot because he has no available remedy. See State v. Stover, 200 N.C. App. 506, 509-10, 685 S.E.2d 127, 130-31 (2009) (holding a claim involving criminal sentencing was moot because the defendant had already served the sentence); In re Swindell, 326 N.C. 473, 474-75, 390 S.E.2d 134, 135 (1990) (holding a juvenile’s appeal of atrial court order sending him to a “training school” was moot because he had already been released from the school).

Although Defendant’s due process claim is moot, we believe N.C. Gen. Stat. § 20-17.4 raises due process concerns because it does not afford defendants any opportunity for a hearing. Nonetheless, in the absence of a justiciable claim, it is the role of the state legislature, not this Court, to remedy constitutionally suspect statutes. Therefore, we decline to further address the substantive merits of Defendant’s due process claim.

IV. Conclusion

We conclude the one-year disqualification of a CDL under N.C. Gen. Stat. § 20-17.4 is so punitive it becomes a criminal punishment, subjecting Defendant to double jeopardy. Consequently, Defendant cannot subsequently face prosecution for DWI. We further conclude Defendant’s due process claim is moot because his one-year CDL disqualification has expired. Based on our double jeopardy determination, the trial court’s decision is

REVERSED.

Judge CALABRIA concurs. Judge HUNTER, Robert C. dissents in a separate opinion.

. N.C. Gen. Stat. § 20-16.5 states “a person’s driver’s license is subject to revocation under this section if. . . [th]e person has . . . [a]n alcohol concentration of 0.08 or more at any relevant time after driving.” N.C. Gen. Stat. § 20-16.5(bl) (2011).