Can I be punished twice if I get a DWI while having a CDL?

A person may not be punished twice for the same crime. That’s the general prohibition against double jeopardy. I’ve written elsewhere about how double jeopardy protections are a lot less strong than people ordinarily think. For instance, different sovereigns – the federal and state governments – can prosecute people even if they’ve been found not guilty in one sovereign’s courts. A great example with respect to multiple prosecutions in the Project Safe Neighborhoods run by the federal government and used to prosecute convicted felons found in possession of firearms.

DWIs, however, are a different story. The federal government does not prosecute DWIs, unless they occur on federal property – such as a military base. Since we have few military bases in Wake County, the federal prosecution of DWIs in this county is very rare.

Consequently, when double jeopardy claims arise with respect to DWIs, it usually has to do with the collateral DMV consequences of a DWI charge. Some have argued, for instance, that the civil revocation that occurs at the beginning of most DWI charges is a punishment that should prevent the state from punishing the defendant through a criminal conviction later in the case.

The North Carolina Supreme Court long ago resolved that issue, ruling that the in State v. Oliver, 343 N.C. 202 (1996) (holding that the 10 day civil revocation period was remedial, not punitive, and did not offend Double Jeopardy protections); State v. Evans, 145 N.C. App. 324 (2001) (holding that the 30-day CVR was similarly remedial and not punitive).

The DMV handles the Commercial Driver License issues differently. If someone has been suspended for any kind of DWI, even a DWI not committed in a commercial vehicle, that person will likely face the normal civil revocation period that affects any other driver in North Carolina. However, the DMV at that point will impose a one-year suspension of a person’s Commercial Driver License (CDL).

The defendant in State v. McKenzie faced just that sort of problem. McKenzie, who had a commercial driver license to work for a logging company, was charged with a DWI. As a consequence of the civil revocation, his CDL was stripped from him by the DMV for one year. As Shea Denning writes for the excellent School of Government blog, McKenzie appealed the Superior Court trial court’s ruling that the loss of the CDL was not a punishment to the North Carolina Court of Appeals.

The Court of Appeals, applying the standard test for double jeopardy issues in Hudson v. United States, 522 U.S. 93 (1997), held that the CDL suspension did create a double jeopardy issue that does prevent the State from seeking to punish McKenzie following a trial.

This case potentially could affect Raleigh DWI arrestees whose CDL has been suspended and who are still facing prosecution.

The North Carolina Supreme Court has since granted a writ that stays the Court of Appeals’ decision and sends the matter to the Supreme Court for argument and a decision.

Due Process and DWI Law: The Commerical Driver License

Anyone who has taken Administrative Law knows that the Fourteenth Amendment to the United States Constitution guarantees the citizens will enjoy the due process of law before any administrative acts deprive them of privileges they enjoy.

In North Carolina (as in most states) individuals who pass certain physical and practical tests may be issued a Commericial Driver License (CDL). The CDL (as is true of any license) is a privilege granted by the state that enables the person to drive certain types of vehicles.

Enter North Carolina’s DWI law. That law provides that if someone is charged (not convicted!) with a Driving While Impaired offense, two things will happen: First the person will face at least a mandatory 30-day suspension of his right to drive on North Carolina’s roads if the person either refused a chemical sample on the Intox EC/IR device (or a blood or urine draw) or the person registered a .08 or above on any test.

In the event that the person is faced with that suspension, and the person also has a CDL, the DMV will immediately send out a notice letting the person know that he or she has been disqualified from possessing a Commercial Driver License for at least one year under N.C.G.S 20-17.4.

Why does this invoke the U.S. Constitution?

For two reasons. First, arguably, the revocation of the CDL for one-year without the opportunity for a hearing violated the Fourteenth Amendment. Under long-standing Supreme Court precedent, any punishment – from the elimination of welfare benefits, to the elimination of driving privileges for longer than a certain de minimis period constitutes a Due Process violation if the state does not provide 1) Notice and 2) the Opportunity for a Hearing.

Because the North Carolina General Statutes fail to provide for a hearing when the person’s CDL privilege is terminate, North Carolina has probable run afoul of the U.S. Constitution.

Second, arguably, the revocation of the CDL constitutes a punishment in a separate hearing, which would make a subsequent trial on the DWI itself a violation of the person’s Double Jeopardy rights.

This issue has not been fully litigated in North Carolina, so precedent is still waiting to be made.



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