BRIEF IN MOTION TO DISMISS PRELIMINARY STATEMENT

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1 The following is the trial brief prepared by Mr. Jacobs, NEW HANOVER COUNTY DISTRICT COURT STATE OF NORTH CAROLINA NO STATE, vs. BARNES, Defendant. BRIEF IN MOTION TO DISMISS PRELIMINARY STATEMENT On March 16th of 2013, Mr. Barnes, the defendant was charged with a total of four misdemeanor infractions; DWI, Hit and Run, Reckless Driving, and Failure to Report an Accident when such Report is Required. The defendant also automatically had his CDL license revoked in response to the DWI charge, by the North Carolina Division of Motor Vehicles. 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. Due to fact that the defendant has already been penalized for the DWI offence, and even if all the allegations in the plaintiffs complaint are true, the case needs to be dismissed. In regards to the other three infractions, the defense desires a separate hearing to be scheduled, due to the fact that without a criminal offence, it is not necessary for all the infractions to be heard in the same session. This matter is before the court on a motion to dismiss the DWI prosecution.

2 QUESTION PRESENTED Can the State of North Carolina prosecute the defendant for the charge of DWI, after the fact that the N.C. Division of Motor Vehicles revoked his CDL for the same offence, or does this constitute double jeopardy? STATEMENT OF THE CASE On March 16, 2013, the defendant, Mr. Barnes, a man with no criminal background, was charged with a count of four infractions due to negligence, driving while intoxicated, in his own personal vehicle. The police officers who investigated the scene of the accident noticed a part of a vehicle, which has not at the location at the time. This piece contained the VIN number of the defendants car, which was shortly thereafter identified, at his home in Wallace, North Carolina. At that time, officer Brown, recently out of the academy, approached the defendant's front door. Our client, Mr. Barnes complied with officer Brown's orders, and admitted fault for the accident. It was officer Brown's belief that the defendant, "smelled like alcohol". The defendant consented to a breathalyzer test. At 8:18 am, nearly six hours after the initial 911 call, at 2:45 am, the defendant blew a In response to the breathalyzer test reading, and the admittance of the defendant's actions; the N.C Division of Motor Vehicles automatically suspended our client's CDL license for a minimum of one year. Judge Robert N. Hunter and Ann Marie Calabria determined in State v. Mckenzie, 736 S.E.2d 591 (2013), that the revocation of an individual's CDL is a criminal punishment, and a DWI charge is considered double jeopardy. Therefore, as a matter of law, a

3 complaint filed by the State on North Carolina, to charge the defendant for the same offence must be dismissed. ARGUMENT MR. BARNES ARGUMENT THAT THE AUTOMATIC DISQUALIFICATION OF HIS COMMERCIAL DRIVER'S LICENSE IS A CRIMINAL PUNISHMENT, AND ANY OTHER CHARGES DUE TO THE SAME OFFENSE WOULD BE DOUBLE JEOPARDY, UNDER FEDERAL AND STATE LAW. THEREFORE THE COMPLAINT BY THE STATE OF NORTH CAROLINA MUST BE DISMISSED. The defendant moves to dismiss by reason of violation of the Double Jeopardy Clause of the USCS Const. Amend. 5 which states(in regards to trial, punishment, and compensation for takings), " 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 offense 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

4 just compensation." As obligated upon the state of North Carolina by the Due Process Clause of USCS Const. Amend. 14. In United States v. Dixon, 509 U.S 688 (1993), the Court agreed with the decision of Blockburger v. United States, 284 U.S. 299 (1932), which created the term, "same offense" under the Double Jeopardy Clause, as any instance wherein there is not any element of one offense, that is incorporated in the other offense. "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. North Carolina (a) marks, "One Year. Any of the following disqualifies a person from driving a commercial motor vehicle for one year if committed by a person holding a commercial driver's license, or, when applicable, committed while operating a commercial motor vehicle by a person who does not hold a commercial drivers license: (2) A first conviction of G.S , driving a commercial motor vehicle while impaired." In State v. McKenzie, 736 S.E.2d 591 (2013), the N.C. Court of Appeals decided that revocation of the individual's commercial driver's license is a criminal punishment, and that a DWI charge is double jeopardy. In addition, states, " (a) The Division shall forthwith revoke the license of any driver upon receiving a record of the driver's conviction for any of the following offenses," including, " a. Impaired driving under G.S , " and, "b. Impaired

5 driving under G.S , if the driver's alcohol concentration level was.06 or higher. For the purposes of this sub-subdivision, the driver's alcohol concentration level result, obtained by chemical analysis, shall be conclusive and is not subject to modification by any party, with or without approval by the court." Mandatory revocation of license by Division. State civil statutes require the Division of Motor Vehicles to revoke CDLs for 12 months after a driver is charged with DWI. The defendant, Mr. Barnes has also attended substance abuse meetings since the time of the accident. Also, he has consented to our firm, the daily usage of Disulfiram, a generic form of Antabuse. As N.C. 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 others due to the abuse of substances. Driving while impaired is one of the three most important areas of deterrence. Furthermore, our client has participated in the Adaptive Alcohol Intervention Messaging System (AAIMS), which provides him with moderation management. The firm, the rehabilitation clinic, and various other sources in the community are working diligently together to facilitate the needs of our client. It is our request that these measures to ensure the defendants sobriety, are noted by the court. In response to the hearing of the other three infractions, (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."

6 According to N.C. 15A (d),"fine Only for Certain Class 3 Misdemeanors. - Unless otherwise provided for a specific offense, the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall consist only of a fine. (1993, c. 538, s. 1; 1994, Ex. Sess., c. 24, s. 14(b); 1995, c. 507, s. 19.5(g); , s. 18B.13(a).)" The defendant will receive infractions 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 N.C (a1)the driver of any vehicle who knows or reasonably should know:(1)that the vehicle which he or she is operating is involved in a crash; and (2)That the crash has resulted in injury; shall immediately stop his or her vehicle at the scene of the crash. Mr. Barnes' decision to not uphold his duty to stop in the event of a crash will result in an infraction. N.C Duty of passenger to remain at the scene of an accident notes, " (a) The passenger of any vehicle who knows or reasonably should know that the vehicle in which he or she is a passenger is involved in an accident or collision shall not willfully leave the scene of the accident by acting as the driver of a vehicle involved in the accident until a law enforcement officer completes the investigation of the accident or collision or authorizes the passenger to leave, unless remaining at the scene places the passenger or others at significant risk of injury." The defendants fourth infraction was due to his non-compliance with N.C. state statute which states, "Reports and investigations required in event of accident. (a) Notice of Accident. - The driver of a vehicle involved in a reportable accident must immediately, by the quickest means of communication, notify the appropriate law enforcement agency of the accident. If the accident occurred in a city or town, the appropriate agency is the police department of the city or town. If the accident occurred outside a city or town, the appropriate agency is the State Highway Patrol or the sheriff's office or other qualified rural police of the

7 county where the accident occurred." N.C explains, "Any person violating any of the provisions of this Part shall be responsible for an infraction and may be subject to a penalty of not more than two hundred dollars ($200.00). ( , s. 2; , s. 11.)." Mr. Barnes will be limited to four, as the highest point value (hit and run, without injury) on his Class C license. These penalizations, fines, and the revocation of the defendants CDL are punishment enough for the offence. Accordingly, North Carolina 15A-1114.(c) states that if an infraction is joined with a criminal offense that arose out of the same incident, the criminal offense and infraction must be heard during the same court session. As the State cannot prosecute the defendant for DWI; thus the offense is not criminal, and therefore they do not need to be heard at this time. The defense requests a rescheduled court session whereupon after deliberation; these matters will be settled. CONCLUSION The state of North Carolina's complaint should be dismissed by the court. Mr. Barnes' argument that revocation of his CDL is a criminal punishment, thereby constituting any further action regarding the same offense, is double jeopardy.