INTRODUCTION. Pursuant to North Carolina General Statute 20-16, the Division of Motor Vehicles may

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1 INTRODUCTION Drivers lose their licenses for many reasons. An understanding of the options to help restore driving privileges is crucial for any traffic lawyer. In some instances, restoration may be as simple as paying a court fee or fine. In other cases, involving multiple counties and violations, it may take several weeks or months and require payment of sizable fines and fees. This paper does not cover every possible suspension or the actions necessary to restore all licenses under all circumstances. Instead, the goal is to provide an introduction to an area of legal practice with no set path. Because the factors surrounding the loss of a license can greatly vary from client to client, the steps necessary to help regain a lost license vary greatly as well. Keeping an open mind, having patience, and being creative in developing a plan are essential in helping to restore a revoked license. Pursuant to North Carolina General Statute 20-16, the Division of Motor Vehicles may revoke a person s license for several reasons. These include showing that a driver has: (1) accumulated twelve or more points within a three-year period; (2) been convicted of driving while impaired; (3) been convicted of operating a motor vehicle at a speed in excess of eighty miles per hour on a public road where the maximum speed is seventy miles per hour; (4) been convicted of operating a motor vehicle at a speed in excess of seventy-five miles per hour on a public road where the maximum speed is less than seventy miles per hour; (5) has been convicted of the following charges in at least two separate incidents within twelve months of: speeding in excess of fifty-five miles per hour and not more than eighty miles per hour, careless and reckless driving, or aggressive driving; (6) made or permitted an unlawful or fraudulent use of the person s license, or has displayed or represented as his or her own, a license not issued to him or her; or (7) been ordered revoked as part of a court order in any criminal sentence. 1 The Division of Motor Vehicles may also prevent the issuance of a driver s license to a person who does not have one. Pursuant to North Carolina General Statute Section (2010), the DMV may revoke or suspend the license of a person who was never issued a license. The Division is authorized to suspend or revoke the operating privilege of such a person in like 1 N.C.G.S (2010).

2 manner as it could suspend or revoke his license if such person held a driver s license, and the provisions of this Chapter governing suspensions, revocations, issuance of a license, and driving after license suspended or revoked, shall apply as if the license has been suspended or revoked. 2 IMPACT OF A FAILURE TO APPEAR OR A FAILURE TO PAY Almost every driver receives a traffic ticket at some point. Most take care of the charges as required, but some either ignore the ticket or forget about it. Whether intentional or not, failing to resolve a traffic citationcarries consequences. Failing to handle a ticket, whether or not the charge requires a court appearance results in the clerk marking the file Called and Failed. 3 Once a file is so designated, the defendant has twenty days to appear and either attempt to have the file placed back on the court calendar or, for offenses where the appearance is waivable, to pay the court fines and fees. If after twenty days the defendant has still failed to speak with the Clerk s Office, the Clerk will record a Failure To Appear on the file. The court assesses a two hundred dollar late fee in addition to the original court costs and fines associated with the ticket. The clerk then notifies the Division of Motor Vehicles. 4 The DMV sends a letter to the last known address of the license holder warning that the driver s license will be suspended within sixty days if the issue is not addressed. Note that the sixty day period begins on the day the Clerk of Court recorded the matter as a Failure to Appear. On the sixtieth day with no action taken to correct the failure to appear by the defendant, the DMV revokes the license. This revocation results in an indefinite suspension of the license. Should the driver continue driving and get caught, the first additional conviction for 2 N.C.G.S (2010). 3 N.C.G.S (2010). Revocation for Failure to appear or pay fine, penalty or costs for motor vehicle offenses. 4 N.C.G.S (2010). Court to report failure to appear or pay fine, penalty or costs

3 a moving violation that occurs during this period of revocation, such as speeding or no operator s license, causes the defendant an additional one year revocation. A second conviction during the revocation period extends the loss of the license for two years. A third revokes it permanently. 5 Similarly, if a driver has gone to court and been ordered to pay a fine or fee for a ticket, failure to pay results in a similar process and timeline. The twenty day grace period begins on the day the payment was due but not received by the Clerk of Court. After the grace period ends, the file will be marked as a Failure to Pay. A fifty dollar late fee is assessed and the Clerk of Court sends notice to the DMV. DMV sends notice to the license holder warning them of the potential loss of license and the license holder again has sixty days in which to take appropriate action. As with the Failure to Appear, the sixty day period begins to run on the date the file was marked as Failure to Pay by the Clerk of Court s Office. 5 N.C. G.S (2010). Conviction for moving violations committed while driving during a period of suspension or revocation of license. Permanent revocation is as permanent as death in a soap opera. As a practical matter, it means that the driver cannot be fully licensed until he completes a three year period without driving and then gets approved to drive at a hearing with the DMV

4 MOVING VIOLATIONS VERSUS NON-MOVING VIOLATIONS As a general rule, the classification of a moving violation versus a non-moving violation depends upon whether or not the vehicle had to have been in motion during the offense. When attempting to get a client s license reinstated, it is important to note whether the charges the client faces are for moving or non-moving violations. This distinction is important because only a conviction for a moving violation during a state of suspension results in additional suspensions. Moving violations include: Speeding or Driving Below the Minimum Posted Speed Running a Stop Sign or a Red Light Driving While License Revoked Driving While Impaired No Operator s License Expired Driver s License Following Too Closely Aggressive Driving No Liability Insurance Failure to Yield for an Emergency Vehicle Refusing to Take a Breath Test Non-moving violations include: Expired or Missing Plates Improper Equipment Failure to Notify DMV of a Change of Address Leaving a Vehicle Unattended and Running Parking in a Handicapped Zone/Illegal Parking Driving with an Invalid Vehicle Registration TYPES OF SUSPENSIONS A North Carolina Driving Record may denote three types of suspensions: definite, indefinite and permanent. A definite suspension ends on a specified date. For example, the DMV automatically revokes a driver s license for a year if that driver refuses to submit to a breathalyzer test. 6 Similarly, if a driver submits to a breathalyzer test, is twenty one years of age 6 N.C.G.S (4) (2010). Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis

5 or older and registers a blood alcohol content level of.08 or higher, his license will be automatically revoked for thirty days without a hearing. Another example of a definite suspension occurs if a minor holding a learner s permit or license drops out of high school prior to graduating. In this instance, the minor s license is suspended until she graduate high school, obtains a General Education Development (GED) or its equivalent, or until she turns 18. With a definite suspension, extraordinary measures are necessary to lift the suspension before the period of suspension has passed. A prudent lawyer will forcefully advise her client to comply with the parameters of the suspension to ensure that he neither extends the revocation period nor renders himself permanently revoked. Occasionally, an attorney, through the mechanism of a Motion for Appropriate Relief, can adjust the starting date of definite suspension in order to speed up its ending date. If a conviction date triggers a one year suspension, for example, it may be possible to move the recorded conviction date two months earlier, thereby ending the suspension two months earlier. Similarly, adjustment of periods of suspension can potentially be orchestrated to lessen the duration of, or even negate, subsequent suspensions. By contrast, an indefinite suspension has no specified end. Typically, an indefinite suspension appears on a driving record because some necessary court or DMV action has not been addressed or has been addressed improperly. One cause is a failure to pay a court fee or fine. When a judge orders a defendant to pay a fine, her failure to pay within the allotted time results in an indefinite suspension. Once paid, the suspension converts to a definite suspension ending on the date of payment. 7 Another common cause of indefinite suspension is failure to appear on a traffic matter. Following a failure to appear, defendant s license will remain revoked until she: (1) disposes of the charge in the trial division in which he failed to appear; (2) demonstrates to the court he is not the person charged with the offense; or (3) the failure to 7 N.C.G.S (2010) Revocation for failure to appear or pay fine, penalty or costs for motor vehicle offenses

6 appear is marked Sent in Error (see Extraordinary Measures below). Faced with a driving record featuring multiple indefinite suspensions, each must be addressed appropriately to maximize the probability of making the defendant eligible for license restoration. To obtain your client s information from DMV, you will need the case number for each charge as well as the client s full legal name, social security number and birth date. Then, you must call the Clerk s Office in the county in which each offense occurred to gather the information needed to develop a plan. The Clerk s Office can determine from their records the exact traffic offenses with which your client was charged; the driving record does not include this information. A driver s license will be permanently revoked following a third moving violation during a revocation period as noted above. A driver will also receive a permanent revocation if the driver amasses two or more convictions for offenses involving impaired driving and gets convicted of another offense occurring within the five years immediately preceding the offense for which the license is revoked. 8 Restoration after permanent revocation requires a hearing with the DMV and a client will only become eligible for such a hearing after a minimum of three years without driving. Restoration, if granted, may be full or conditional with limits on hours during which the driver may drive. The DMV may also impose other conditions such as requiring installation of an interlock device. In the most extreme cases a client may face a lifetime permanent revocation. Under this form of revocation used only in cases of Habitual Impaired Driving, a person is ineligible to be licensed in North Carolina for at least ten years. 9 Under N.C. General Statute (2010), [a] person commits the offense of Habitual Impaired Driving if he drives while impaired and has been convicted of three or more offenses involving impaired driving within 10 years of the 8 N.C.G.S (e) (2010). 9 N.C.G.S (e) (4) (2010)

7 date of this offense. Unlike a permanent revocation, a revocation for Habitual Impaired Driving precludes the possibility of a Limited Driving Privilege. TACTICS FOR RESTORATION Each client will need a personalized plan. As mentioned previously, some restoration processes will be simpler and require less time and expense than others. Overcoming revocations caused by Driving While Impaired, Reckless Driving, or Manslaughter, for example, require additional steps, time and money. Dismissal One of the easier ways of lifting a revocation is to have the District Attorney drop the charges causing a revocation. The likelihood of an outright dismissal varies dramatically depending on the county and the Assistant District Attorney. Dismissal of a non-moving violation, such as an expired inspection or registration, is typically easier to achieve. With a non-moving violation, correcting the deficiency, for example, showing an expired registration has been renewed or a burned out headlight has been replaced, is one of the most assured means of having the charge dismissed. Though helpful, dismissal of non-moving violations will not lift a suspension unless they were suspensions for a Failure to Appear or Failure to Pay a Fine. In such cases, merely dismissing the charge may not be enough to lift a suspension if a moving violation occurred while the driver s license was suspended. Dismissal will not remove the suspension from the record; it will only give the suspension a definite ending date. To restore the license, it may be necessary to get the dismissal entered Nunc Pro Tunc (see below) to a time before the more recent moving violation was issued

8 Reduce or Amend Moving Violations to Non-Moving Violations It is sometimes possible to reduce or amend certain moving violations to non-moving violations. One of the more common reductions given is a reduction from a Speeding charge to Improper Equipment. Often to receive this reduction, the prosecution requires the driver to complete a recognized driving school. In some counties, a certificate from a mechanic noting a problem with the speedometer calibration may be accepted. Knowledge of local rules and practices of the jurisdiction is crucial. Some jurisdictions, such as Wake County, do not amend a speeding charge to Improper Equipment. In developing a plan for restoration, it may make more sense strategically to clear the indefinite suspensions involving charges for speeding in counties that are amenable to reductions like Improper Equipment before talking to the District Attorney in Wake County and before using all available PJCs. Because Wake County prosecutors generally refuse to reduce Speeding charges to non-moving violations, using an available PJC may be the only means of clearing an indefinite suspension

9 Prayer for Judgment Continued A Prayer for Judgment Continued (PJC) is a means by which a defendant may plead guilty to a charge without all of the ensuing consequences. The driver pleads guilty or is found guilty, but the court agrees not to enter judgment. The driver pays the court costs, but no fine nor other requirements are placed on her. The case technically remains open for three years. If at the conclusion of three years, the driver has had no additional PJCs for traffic issues, the PJC is permanently entered and the driver receives no punishment. For insurance purposes, should the driver receive another PJC for a moving violation, the insurer will ignore both PJCs and assess all points associated with the violations. For revocation purposes, the upshot of using a PJC on a traffic offense is that subject to the qualifications below, DMV will not count the case as a conviction for a moving violation. It is important to remember the limits of a PJC when developing a restoration plan. For DMV purposes, only two PJCs per driver every five years will be recognized. While a judge may grant a third PJC within the five year period, the DMV honors only the first two. For insurance purposes, only one PJC per insurance policy may be used within a three year period. This means, if a wife uses a PJC for her speeding ticket, her husband who shares her insurance policy may still use a PJC, but only the DMV will recognize it; the insurance company will still assess insurance points on both the husband AND the wife, increasing their premium. Further, by statute a driver may not use a PJC to dispose of charges of Driving While Impaired, Passing a Stopped School Bus, or Speeding in Excess of Twenty-Five Miles per Hour - 9 -

10 over the Posted Speed Limit. Also, she may not use a PJC for a charge received while operating a vehicle under a Class A Commercial Driver s License (CDL). 10 Plea Bargain After reducing as many moving violations to non-moving violations as the District Attorney will agree to and using any remaining PJCs, the next tactic is to strike a plea bargain. A guilty plea is sometimes the best or only choice. It is important to identify all the underlying charges in addition to determining whether the driver was in a state of suspension at the time that each citation was issued. For example, it is not enough to reduce charges from one moving violation to a lesser one if the offense occurred during a period of revocation. Whether the client pleads to Driving With License Revoked to No Operator s License, the conviction will still create an extended period of revocation. Only if the charges were changed to a non-moving violation will a conviction avoid this problem. Frequently, prosecutors and judges will sympathize with a driver who has made strides toward repairing a damaged driving privilege. They may be willing to bend or stretch policies if they see that an exception is the only way to give a driving privilege to a defendant who has removed all by a few remaining impediments to being able to drive legally. It will not hurt to ask. 10 It is important to note that a PJC can still affect a non-traffic related criminal charge. Under North Carolina s structured sentencing, a PJC counts as a conviction for sentencing purposes which can lead to increased punishment

11 EXTRAORDINARY MEASURES: WHEN ALL ELSE FAILS For some clients, restoring the driving privilege requires more patience and creativity. After attempting to get as many charges dismissed as possible, negotiating with the Assistant District Attorney to reduce or amend all moving violations to non-moving violations, using all available PJCs and pleading to those charges that were not amassed within a period of revocation, you may still find charges standing between your client and a restored license. The following terms and measures may be used after extinguishing all other options. Having Judgment entered Nunc Pro Tunc Nunc pro tunc is the Latin phrase meaning, Now for then. It is a tool by which the court may retroactively alter a judgment. It signifies that legal action taking place now shall have the same legal force and effect as if it were done at a time when it should have been done. 11 In essence, it is a legal means by which history can be re-written. Shifting the date when an event occurred can move it out of a revocation period and thereby prevent the extension of a revocation. Properly used, manipulating dates via Nunc Pro Tunced judgments can prove extremely effective in restoring a driver s license. Having a Failure to Appear Sent In Error You may resolve some indefinite suspensions by shifting responsibility to the Clerk of Court. As mentioned previously, a Failure to Appear can have a devastating impact on a driver s ability to operate a motor vehicle in North Carolina. An FTA will cause a revocation. If, however, a Judge orders the FTA rescinded, then the underlying cause of the revocation no longer exists. If the Clerk of Court takes responsibility for erroneously reporting the FTA to the DMV, or if a Judge finds the Clerk responsible, the FTA is wiped from the driver s record along 11 State v. Hatley, 72 N.M. 377, 384 P.2d 252, 254 (1963)

12 with the revocation. In some counties, the legal fiction is regularly accepted as a tool to get people back on the road legally. In others, Clerks hear the suggestion that they erred as a personal attack. Know your jurisdiction. Use of Motions for Appropriate Relief The usual method for requesting that the Court alter judgments or strike Failures to Appear Sent in Errors is a Motion for Appropriate Relief (MAR). The MAR is a vehicle by which to get the case back into court to request the relief the defendant seeks. Technically, a MAR is a post-conviction challenge to a sentence or conviction. Most jurisdictions allow MARs to be used like Dr. Who s sonic screwdriver a tool to fix anything. Filing a MAR in Superior Court requires a thorough review of all previous pleadings and hearings and research into pertinent legal issues. It may also require preparation of affidavits and supporting documents as well as a persuasive and convincing motion to be reviewed by the District Attorney and presiding Judge. In District Court in many jurisdictions, a MAR is far less formal. In some cases, the defendant will seek a dismissal of all charges or a new trial. In others, changing the conviction date may be enough to save a driver s license. Because this method generally requires a great deal of begging by the attorney, it should be priced accordingly. Unless a MAR is made in open court, before the judge who presided at the trial or plea and within ten days of the entry of judgment, MARs must be in writing. In Superior Court, they must be in writing unless made before the end of the session. In the written MAR, the attorney must certify that the motion is made in good faith, that there is a sound legal basis for making the motion, that the attorney has notified both the District Attorney s Office and the attorney who represented the defendant at the original trial or hearing. The attorney must also certify that she has reviewed the trial transcript or made a good faith determination that a full review of the

13 transcript is not necessary for the relief sought or that the attorney tried to get the transcript if it is not available. If the MAR requires facts not in the record, you will also need to file an affidavit. A MAR that is consented to by a prosecutor is understandably more likely to be granted by a judge. As a result, the first step should be pitching your case to a friendly ADA. However, even if they oppose, it should be noted that a MAR in District Court requires a District Attorney s signature with an opportunity for the DA to consent or object, though the Court may grant the MAR without a prosecutor s signature if the DA does not respond 10 business days after notice. 12 Failure to meet these requirements bars the granting of your MAR. 13 Limited Driving Privilege In the worst cases, the attorney exhausts all options and the client is still left without a restored license. In these cases, it may be possible to obtain a judgment issued by the court authorizing a person with a revoked license to drive under specified terms and conditions; a Limited Driving Privilege (LDP). N.C.G.S (a)(1) (2010). The LDP restricts the driver to essential driving related to one or more of the following purposes: (1) travel to and from the person s place of employment and in the course of employment; (2) travel necessary for maintenance of the person s household; or (3) travel to provide emergency care for the person or for an immediate family member of the person who resides in the same household with the person. N.C.G.S (e)(1-3) (2010). It may also set limits on the times or days that driving is allowed. The LDP issued pursuant to N.C. General Statute (e)authorizes a defendant to drive if his license is revoked for any of the a long list of offenses including: (1) manslaughter resulting from the operation of a motor vehicle; (2) impaired driving; (3) a felony 12 Depending on the timing, you will need to follow the procedure in N.C.G.S. 15A-1414 (if the MAR is made within 10 days of the verdict), (after 10 days), or (if the case is on appeal) (2009). Also see N.C.G.S. 15A-1420 (2010) for MAR procedural requirements generally. 13 N.C.G.S. 15A-1420(a)(1) (2009) Superior Court MAR; N.C.G.S. 15A-951(c) (2009) District Court MAR

14 in the commission of which a motor vehicle is used; and (4) conviction, within a period of twelve months, of (i) two charges of reckless driving, (ii) two charges of aggressive driving, or (iii) one or more charges of reckless driving and one or more charges of aggressive driving. 14 Revocations for different causes require a driver to follow different procedures to become eligible for an LDP. One of the most frequently occurring is a revocation based on conviction(s) for moving offense(s) during a revocation period. If a driver is revoked for this reason and only for this reason, the driver must first complete a compliance period during which he does not drive. Additionally, during the compliance period, the driver must have no convictions in North Carolina or another state for: (1) a moving violation; (2) a violation of any provision of the alcoholic beverage laws; or (3) a violation of any provision of the drug laws. 15 For a person with a one year revocation, the compliance period is ninety days. For a two year revocation, the compliance period is one year. For a permanent revocation, the compliance period is 2 years. Once the driver has complied, she may petition the court for a Limited Driving Privilege. 16 If granted, the LDP remains valid through the remainder of the revocation, except in the case of a permanent revocation. The LDP for a permanent revocation is valid for one year. At the completion of the original revocation, the defendant may apply to restore her full driver s license. A PRACTICAL GUIDE TO READING A DRIVING RECORD Assessing a defendant s driving record is the first step in developing the plan for license restoration. Both certified and non-certified copies of the defendant s driving record may be 14 For a more extensive list of offenses where a LDP is permitted see N.C. G.S (2010). 15 N.C.G.S Conviction for moving offense committed during period of suspension or revocation. 16 There is a fee of $100 for petitioning the court for a pre-trial and post-conviction Limited Driving Privilege. See N.C.G.S If the petition requires a civil filing the fee is $

15 obtained from the Division of Motor Vehicles website. 17 Upon receipt, check the name, address and date of birth to ensure it is the correct record for your client. This information is located at the top. Directly below the personal information is a line titled Driver License Status. For most defendants accused of Driving While License Revoked, this line will read CLS C Suspended. The next section provides information regarding the license or licenses issued to the defendant. This information includes the issuance date, whether it has expired, and whether the defendant has restrictions such as a requirement to wear corrective lenses when operating a motor vehicle. Usually, for purposes of restoring a revoked license, this section may be overlooked. The key section on a driving record for restoration purposes features three columns titled: Occurrence Begin Date, Conviction End Date, Nature of Record or Division Action, and Points. Under the column titled Occurrence Begin Date, Conviction End Date is the information regarding whether a revocation is indefinite, definite or permanent. An indefinite suspension is designated as INDEF. A definite suspension is designated by a begin date and an end date. A permanent suspension is designated as PERM. Under the column titled Nature of Record or Division Action is the information regarding the charge causing the revocation. The Nature of Record portion provides information such as the conviction, the court where the conviction originated and the original case number. The Division Action portion includes the action the DMV took as a result of the conviction or inaction of the defendant (e.g., SUSP: Failure to Pay). The final column titled 17 A non-certified costs $8.00 and is available immediately as a PDF for review and printing. A certified driving record costs $11.00 and is mailed from the DMV. For most restoration purposes, a non-certified record will suffice

16 Points, provides an accounting of any points assessed to the defendant s license as a result of any convictions. This column also shows whether a PJC has been used. It is important to note the driving record will not provide the details of the underlying violation, such as Speeding 74 MPH in a 65 MPH zone. Also absent are the fees and fines associated with the underlying charges and any late fees assessed resulting from a Failure to Appear or Failure to Pay. To get that information, an attorney with the original case number, defendant s name, date of birth and address can call the Clerk s Office in the county the citation was issued. CONCLUSION While this paper does not attempt to cover every conceivable suspension scenario, it does offer a foundation for any young attorney interested in this area of traffic law. Actual practice reading driving records paired with general understanding of the concept discussed in this paper and familiarity with the statutes referenced provided are only a starting point. As with all new areas of practice, it is important to associate with or ask questions of an attorney more learned in the subject matter and to learn the both the written and unwritten rules in the jurisdictions where you practice. There are many ways to approach any complicated driving record. License restoration is as much art as science