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.

Damon Chetson - 994 posts

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.

CDL, Double Jeopardy