Re: Disqualification of CDL license for 1 year and DWI charge. You have asked me to prepare a memorandum regarding the following questions: Does the

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1 OFFICE RESEARCH MEMORANDUM To: Dr. Warren, Public Defender From: Ryan Jacobs, Intern Re: State v. Barnes Case: Re: Disqualification of CDL license for 1 year and DWI charge during hit and run accident STATEMENT OF ASSIGNMENT You have asked me to prepare a memorandum regarding the following questions: Does the sentencing of DWI and revocation of Mr. Barnes' CDL license for one year constitute double jeopardy? What other infractions may Mr. Barnes receive as a consequence of his actions on the night in question, and must they be heard at the same court session? ISSUES Issue l: Under the Fifth Amendment of the Constitution of the United States of America, and double jeopardy precedent law of North Carolina, is the court in violation of double jeopardy for prosecuting an individual with a DWI charge, if the individual has already had their CDL drivers license revoked for one year?

2 Issue II: Under the General Statutes of the North Carolina Assembly, 15A-1114(c), can infractions be heard during the same court session? What other infractions would Mr. Barnes be charged for? BRIEF ANSWER Issue I: Yes. The N.C. Court of Appeals determined that a mandatory, one-year disqualification of a CDL is a criminal punishment, therefore charging the defendant with a second conviction for the same offense is considered double jeopardy. In accordance, USCS Const. Amend. 5 states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Issue II: Yes. North Carolina 15A-1114.(c) states that if an infraction is joined with a criminal offense that arose out of the same occurrence, the criminal offense and infraction must be heard during the same court session. According to , the hit and run charge may result in an infraction.

3 FACTS On March 16th of 2013, police officers responded to a 911 call at 2:45am. Upon arrival of the scene, police officer's located piece of the defendant, Gregory Barnes' vehicle. The piece contained the VIN number. Police officers than located the defendant's car at his house in Wallace, North Carolina. Officer Brown believed Barnes appeared intoxicated, and Barnes agreed to a breathalyzer test. At 8:18am, nearly 6 hours after the 911 call was placed, Barnes blew a Barnes was charged with DWI, Hit and Run, Reckless Driving, and Failure to Report an Accident when such Report is Required. ANALYSIS Issue I "The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction (by trial or plea); and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711 (1969). Article I, Section 19 of the North Carolina Constitution has also been interpreted to protect against double jeopardy. State v. Rambert, 341 N.C. 173 (1995)(Farb, 1)." The North Carolina state constitution and general statutes of the governing law provide protection from double jeopardy as well. In State v. McKenzie, 736 S.E.2d 591 (2013), it was decided that revocation of the individual's commercial driver's license is a criminal punishment, and that a DWI charge is

4 double jeopardy. Although in many similar cases prior to State v. McKenzie, the decision of the court was that it was not double jeopardy (i.e. State v. Oliver, 434 S.E.2d 202 (1993), and State v. Evans, 137 S.E.2d 811 (N.C. 1964), but civil sanctions to protect the public. This is also Judge Hunter's dissent in State v. McKenzie. As summarized by Lawyer's Weekly, "State v. McKenzie (Per Curiam) Appealed from Duplin County Superior Court Appealed from the Court of Appeals. N.C. S. Ct. Holding: For the reasons stated in Judge Robert C. Hunter s dissent, despite the length of the revocation in (a)(7), it has the remedial purpose of protecting the public from the greater risk of harm presented by commercial motor vehicles, and only defendant s commercial driver s license was revoked, not his personal driver s license we reverse the Court of Appeals ruling that defendant was subjected to double jeopardy when he was prosecuted for driving while impaired after having his CDL revoked for a year. Remanded for additional proceedings (Gorham, No , 1 p.)." Drivers who are charged with DWI automatically lose their CDL for one year by order of the N.C. Division of Motor Vehicles pursuant to N.C. General Statute 20. State civil statutes require the Division of Motor Vehicles to revoke CDLs for 12 months after a driver is charged with DWI. The revocation occurs regardless of whether a driver is in their personal vehicle when stopped, or their vehicle used for employment. It also does not include a hearing by the DMV. As Robert L. Farb, Double Jeopardy, Ex Post Facto, and Related Issue, 1, 2(2007) explains: Punishments imposed for criminal offenses, criminal contempt imposed after a plenary hearing, and infractions are included within double jeopardy. In addition, some civil remedies may also constitute punishment within double jeopardy. To determine whether a civil remedy is punishment, see Hudson v. United States, 522 U.S. 93 (1997). The Court in Hudson disavowed the method of analysis used in Halper v. United States, 490 U.S. 435 (1989), to determine whether a civil

5 remedy constitutes punishment under the Double Jeopardy Clause that would bar a later criminal prosecution based on the same conduct. Instead, the Court stated that it would use the seven factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Court noted that these factors must be considered with the particular civil remedy statute at issue (not the actual civil remedy imposed in the case), and only the clearest proof will suffice to override legislative intent and transform into a criminal punishment what has been denominated a civil remedy(1). In State v. McKenzie, the two concurring judges, Robert N. Hunter and Ann Marie Calabria ruled that the one-year CDL revocation goes beyond a civil sanction, punishing a driver. "If criminal punishments in district or superior court follow, the punishments constitute double jeopardy. The ruling may also negate a decision established in Joyner v. Garrett, 182 S.E.2d 553 (N.C. 1971), which established that revocation of a license is not part of a punishment for the crime for which the licensee was arrested (State Of North Carolina v. Bobby Lee McKenzie." LexisNexis. Reed Elsevier Inc., )." Appellate Judge Robert C. Hunter dissented with the court's opinion and agreed with the state, finding that drivers licensed for commercial vehicles are subject to greater responsibility than regular drivers. Hunter ruled that whether a second punishment constituted a double jeopardy that would preclude its imposition depended on whether the original penalty was civil or criminal in nature. Despite the length of the CDL disqualification handed out to McKenzie, Hunter said that the purpose of the state statute disqualifying CDLs in the event of a DWI conviction was not punitive, but rather a remedial measure designed to protect the public, so double jeopardy should not apply. Hunter also said that previous cases involving personal drivers licenses were not applicable in McKenzie s case because the greater danger presented by commercial vehicles creates a greater interest for the state in promoting public safety.

6 The court issued a per curiam (a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively and unanimously) opinion stating that it agreed with the dissenting opinion authored by Judge Robert C. Hunter in January that the Duplin County trial court should have allowed DWI charges against McKenzie to proceed. Although State v. McKenzie is fairly recent, and the opinion of the court has been criticized, the case sets strong precedent for State v. Barnes. See the Recommendations section below. Issue II: As 15A-1114.(c) states: A district court judge may conduct proceedings relating to traffic infractions in a civil or criminal session of court, unless the infraction is joined with a criminal offense arising out of the same transaction or occurrence. In such a case, the criminal offense and the infraction must be heard at a session in which criminal matters may be heard. Accordingly defines an infraction as, "a noncriminal violation of law not punishable by imprisonment. Unless otherwise provided by law, the sanction for a person found responsible for an infraction is a penalty of not more than one hundred dollars ($100.00). The proceeds of penalties for infractions are payable to the county in which the infraction occurred for the use of the public schools.

7 Barnes will receive an infraction for hit and run, which by N.C. Gen. Stat , section a.3 states a mandatory disqualification of the defendant's CDL for one year. Under North Carolina's Mr. Barnes' decision to not uphold his duty to stop in the event of a crash may result in an infraction states the Authority of the Division to suspend a driver's license, in which case Mr. Barnes has the possibility of earning four points on his Class C license (11)(c) provides, "In case of the conviction of a licensee of two or more traffic offenses committed on a single occasion, such licensee shall be assessed points for one offense only and if the offenses involved have a different point value, such licensee shall be assessed for the offense having the greater point value." The scheduled points would be due to reckless driving, failure to report an accident where such report is required, as well as the hit and run infraction. Due to Mr. Barnes' failure to stop at the scene of the accident, as it is his duty to do so, the police officers could not determine the speed that he was traveling when impact was made with the other vehicle, so these are the charges. These infractions present an obstacle for the case. A total of three infractions will complicate matters for Mr. Barnes in regards to Issue I. See the Recommendations section below. CONCLUSION The rule of the law in North Carolina concerning double jeopardy will dismiss any further action by the court in sentencing our client with a charge for DWI. Being that this issue in our case is

8 quite similar to State v. McKenzie, the opinion reached in State v. McKenzie (regarding CDL disqualification for a DWI, and a separate court proceeding for the same offense) set the precedent for this case to be considered double jeopardy. The three other charges will most likely be considered infractions, which are penalized by fines, and points on our clients record. The points would be limited to four, as it is the highest point value (hit and run, without injury). It is my opinion that focusing on Mr. Barnes ability to reach out for treatment, and assistance will strengthen our case. RECOMMENDATIONS 1. Research Mr. Barnes' driving history, so that we have a better idea of what prior infractions he might have, in order to facilitate his options. 2. Consider whether the disqualification of Mr. Barnes' CDL for one year in regards to DWI, and the Hit and Run charge combined constitute a hasher penalty (i.e. Modified Life Disqualification, 2 Yrs, or possibly Life). 3. Mr. Barnes has severely diminished his privilege to drive. In order to ensure that he does not receive harsher sentencing due to the knowledge of the entire case, it would be in his best interest to attend a rehabilitation clinic, and/or AA meetings for a limited period. As 7A-791. states the purpose of the North Carolina Drug Treatment Court Act of 1995 is to recognize, and play a significant role in deterring individuals from abusing addictive substances, dependency on such substances, and providing rehabilitation for individuals who negatively affect themselves and

9 others due to abuse of substances. It also mentions driving while impaired as one of the three most important areas of deterrence. Doing so may assist in reducing conviction, and penalties. 4. Conducting further information regarding attendance of a driver improvement clinic, operated by the Division, may ensure three points are deducted from his driver's license (based upon how many he has now, and what he will incur due to the three infractions). These suggestions should be expressed to Mr. Barnes so that he is aware of his options. 5. Know our judge. As a rule of thumb, we must be prepared for anything. Although we can assume the precedent set in State v. McKenzie should apply to our case, the dissenting opinion of Judge Hunter is a hot topic, and many agree with his judgment. Remember, the McKenzie case was the first in North Carolina that acquitted a DWI charge on the ruling of double jeopardy, and we cannot allow room for error.