The charge of Driving While License Revoked is something to be taken very seriously in North Carolina. Conviction under this charge carries hefty penalties that severely affect your driving privileges, and with recent changes in this area of North Carolina law, maneuvering through the gauntlet of traffic law is complicated and time consuming. Hopefully this article will shed some light on DWLR law in North Carolina, and should, at a minimum, provide some starting points on how to approach a DWLR case.
In North Carolina, Driving While License Revoked is codified under NC Gen. Stat. §20-28 “Unlawful to drive while license revoked, after notification, or while disqualified.” (Available here). As of the date of this article, the North Carolina General Assembly’s website has yet to update the statute to conform to new law which became effective December 1, 2015. The new act, title the “North Carolina Drivers License Restoration Act,” alters important provisions of NC Gen. Stat. §20-28, specifically reducing penalties for subsequent DWLR convictions while an individual’s license is suspended. (act available here).
It seems the legislature became aware of a trend in North Carolina whereby individuals would have their license revoked, for whatever reason, but yet would still need to drive to meet other obligations. When caught driving and hit with a new DWLR conviction, a driver’s revocation period would be extended for the subsequent charge. After so many convictions following the original DWLR charge, the driver’s driving privileges would be suspended indefinitely. This out-of-control spiral effect led many drivers in North Carolina to permanently lose their driving privileges simply because they needed to drive on a daily basis.
But before we get too far ahead of ourselves, let’s take a minute to review how DWLR charges are defined. After that, we’ll get into strategies for addressing a DWLR charge; whether it be correcting/amending an individual’s driving record, or contesting the validity of a DWLR in North Carolina.
**THIS ARTICLE IS NOT MEANT TO BE COMPREHENSIVE. DWLR charges are very fact dependent. Only after a thorough review of the facts and circumstances of your case will an attorney be able to assist you in moving forward with the charges you face.
TYPES OF DWLR IN NC
There are two variations of DWLR charges in North Carolina, codified as either a Class 1 or Class 3 Misdemeanors. The difference dependents on why an individual’s drivers license was revoked or suspended to begin with. In North Carolina, Class 3 Misdemeanors are considered less severe and carry with them less possible punishment as opposed to Class 1 Misdemeanors.
DWLR Impaired Revocation
A Class 1 DWLR is codified under NC Gen. Stat. § 20-28 (a1) and is referred to as a DWLR Impaired Revocation. This type of DWLR is charged when an individual’s original license revocation is based upon violation of an impaired driving (DWI) revocation. (Information regarding impaired driving in North Carolina is available through The Law Abides here, and North Carolina’s impaired driving statute is available here).
DWLR Not Impaired Revocation
Class 3 DWLR, however, is codified under NC Gen. Stat. § 20-28 (a) and encompasses all other types of revocations for which an individual’s drivers license may be suspended. There are numerous reasons why an individual might have their drivers license suspended, such as accumulating too many drivers license points (currently 12 points within 3 years, or 8 points within 3 years following reinstatement), failing to appear in court when required to do so, or certain charges, such as speeding in excessive of 15 mph in a 55 mph zone, which can lead to revocation of license for a period of time. The length of revocation can also vary, and more information on suspensions/revocations can be found here.
THE SHIFTING TIDE OF DWLR LAW
Realistically, the exact nature of a revocation can only be determined after a thorough review of a driver’s driving record, and oftentimes a revocation can come as a surprise to drivers who are pulled over thinking they are perfectly within their right to drive.
For instance, drivers who are issued traffic citations are often given a court date that is a month or two in the future. As it goes, things happen in everyone’s daily life and sometimes these citations are set aside and forgotten about. If the citation is not handled prior to the court date issued, then the driver is required by law to attend court on the calendared date to face the charge. If the driver fails to show up, then they will be hit with a Failure to Appear (FTA) by that County’s Clerk of Court, who then reports the FTA to the DMV. A FTA report sent to the DMV will result in an automatic indefinite revocation of a driver’s driving license. (available here). This revocation is lifted once an individual satisfies or complies with the FTA, either by going to the Clerk’s Office in the County where the driver was ticketed and discussing the case, hiring an attorney to handle the case, or pleading guilty to the charge and paying all court costs and fines associated with the case.
This seems rather harmless right? You miss a court date, which you obviously shouldn’t do, but mistakes happen and you return to court to deal with the charge. So why am I even mentioning FTA revocations? Well, the caveat to this type of revocation is found in NC Gen. Stat. §20-28.1 “Conviction of a moving offense committed while driving during period of suspension or revocation of license.” (Available here). Under this provision, if a driver commits a moving violation while the driver’s driving license is in a period of suspension (which with an FTA is indefinite until dealt with), then the Division of Motor Vehicles (DMV) is required to further revoke the driver’s driving license for a period of 1 year for the first offense (NC Gen. Stat. §20-28.1 (b)(1)), a period of 2 years for the second offense (NC Gen. Stat. §20-28.1 (b)(2)), and permanently for a third or subsequent offense ((NC Gen. Stat. §20-28.1 (b)(3)).
If I’ve written things clearly, then the purpose of North Carolina’s Driver License Restoration Act should now become apparent. An FTA was often most likely caused by mistake, or simply forgetting to deal with a traffic ticket. If forgotten, then obviously a driver will not be immediately aware that they have received an FTA through the court, and will continue driving as normal even though their license is suspended. Then, even under perfect driving conditions, a driver could be pulled over and issued a DWLR charge for driving during this FTA issued period of revocation. It would be as simple as an officer running a license plate check and seeing that the vehicle’s registered owner has a license which is currently in a state of suspension. Under old North Carolina law, a DWLR alone was considered a moving violation for purposes of NC Gen. Stat. § 20-28.1, and therefore a driver convicted of a DWLR during a period of suspension would automatically be subject to a 1 year suspension under NC Gen. Stat. § 20-28.1. Here is where the spiraling out of control begins, since a relatively minor traffic ticket had the potential of snowballing into years of license revocation. Where a driver originally faced only the possibility of a fine, courts costs, and potential driving/insurance points, a conviction under NC Gen. Stat. § 20-28.1 now leaves the driver with at least a full year of their driving privileges being taken away.
What the new law does, however, is make a DWLR conviction a non-moving violations for purposes of NC Gen. Stat. § 20-28.1. As a non-moving violation, a driver will no longer be subject to extended periods of revocation as required by NC Gen. Stat. § 20-28.1 if they plead or are found guilty for a DWLR offense. NC Gen. Stat § 20-28.1 has not been abolished under the new law, but simply takes DWLR convictions out of its grasp. Any other moving violations during a period of revocation will still carry with them a period of revocation. As you can see, a minor traffic infraction, at least under the old law, could have led to severe and lengthy consequences brought about by longer periods of revocation, which quickly became permanent.
This scenario wasn’t uncommon, and highlights the true importance of seeking out legal counsel prior to attempting to handle traffic tickets or criminal offenses on your own. What may seem straight-forward can easily become complicated when the full range of possible consequences are unknown. Often, a driver would show up to the Clerk’s Office or the District Attorney’s Office with questions about why their license was suspended, and upon figuring it out would simply plead guilty to the violations, thereby complying with the original FTA. But, by pleading to these new moving violations, a driver would unknowingly plead to a NC Gen. Stat. § 20-28.1 violation, and 10 days later the revocation becomes effective. A disparaging portion of the law? A driver could pay the restoration fees to the DMV, receive a brand new license, only for that newly issued license to enter a state of revocation 10 days later. The soundness of this policy is outside the scope of this article, but I think most will agree with me when I say that this is a sly method of the State of North Carolina collecting revenue.
SUGGESTIONS ON HOW TO HANDLE A DWLR CHARGE
Get Your License Back
You may be able to get a DWLR charge dismissed if the period of revocation on your drivers license has expired and you are eligible to get your drivers license back. You will need to pay a restoration fee as well as a duplicate license fee. Once you have your license, you maybe be able to talk to an Assistant District Attorney in the county where you were charged about having the DWLR dismissed. Note, however, that this choice is completely within the discretion of the District Attorney’s office in your county.
Correct/Amend Driving Record
Another avenue of dealing with a DWLR is to attack the suspension or revocation where is began. The level of involvement required to do this really necessitates the assistance of a licensed attorney familiar with traffic law and DMV policies. An attorney will be able to determine exactly what charge has caused your license to be placed in suspension or revocation. Once that is determined, there are several things that could occur.
First, compliance with a Failure to Appear is something that needs to be sent from the Clerk’s office to the DMV, after which the DMV’s database takes anywhere from 48-72 hours to update and lift your suspension. There is a slim possibility that this paperwork was lost in translation, and simply needs to be re-sent or entered properly.
Second, sometimes FTA’s are reported in error by the Clerk’s office. If this is the case, an attorney may be able to speak with your County’s Clerk’s Office and have a letter sent to the DMV stating that the FTA was entered in error. It should be noted that with the efficiency and accuracy of most Clerk’s Offices in North Carolina, it is highly unlikely that one of these options are available. The DMV, however, is not without its flaws.
Third, it may be the case that your driving record is accurate, but that you entered previous charges by waiving your rights, pleading guilty, and paying court costs and fines associated with the charges imposed against you. In this instance, an attorney may be able to successful file a Motion for Appropriate Relief (MAR) in your case to cure your current situation. What an MAR does is re-open your prior case or cases, and if successfully entered, sets aside the previous judgment entered by the court. In practice, this allows an attorney to open your previous case, where it is treated as if you never plead guilty, and allows for either further negotiation with the District Attorney, or the charge can be challenged on the merits. With the charge being re-opened, your attorney may choose to challenge the original charge if deemed appropriate. Alternatively, your attorney may be able to negotiate with the District Attorney to have the original charges reduced or dismissed in order to "fix" your driving record in regard to the current DWLR charges faced. Any court costs or fines paid in the previous matter are also open for return, but these may be forfeited pursuant to negotiation with the District Attorney. Remember, the whole point of re-opening old cases is to fix a driving record and ultimately get your DWLR charge dismissed.
Negotiate with the District Attorney
Drivers charged with DWLR might be able to speak with a District Attorney in the County in which they were charged about reducing the charge to another offense, or requesting it be dismissed outright. Realistically, however, the chances of successfully negotiating a reduced charge or dismissal on your own is fairly low. This is another situation where the assistance of an attorney really comes into play. First, a local attorney will likely have a repertoire with the County’s District Attorney’s Office, and may be able to negotiate a reduction or dismissal on your behalf. Second, a competent criminal defense attorney will be able to determine the strengths and weakness of your case, and highlight those important aspects to the District Attorney’s Office when attempting to negotiate your charge. Or, lastly, an attorney may review your case and determine that the facts are such that it would be beneficial to push for a trial on the merits, rather than taking a plea offer or deciding not to challenge the charge. In any case, only the specific facts of your case will assist in determining which avenue to pursue.
Depending upon why a driver’s driving privileges have been suspended or revoked, a driver may become eligible for a Hearing before a DMV Hearings Officer after a certain amount of time has elapsed on a driver’s revocation. If eligible, a driver must request a hearing be schedule, and will bear the burden of persuading a hearing officer that their license should be reinstated prior to the expiration of the revocation period. An important piece of information to remember is that hearing officers are DMV employees, who are present to protect the integrity of the DMV. Just because you are granted a hearing does not mean a Hearing Officer is prepared to hand your license back to you. Your case will need to be persuasive, and will require presentation of testimony and possibly even additional evidence that tends to show you are deserving of having your driving privileges reinstated. If granted, and once scheduled, a hearing officer will likely reach out to you prior to the date of hearing and give some information on what will be expected or discussed at the hearing. If an attorney in your area handles DMV hearings, it is highly likely that your money will best be spent retaining an advocate who will give you the best possible chance of getting your license back.
If reinstated, then it will be time to speak with the District Attorney’s Office in the County in which you were charged to attempt to negotiate a reduction in the DWLR charge, or a dismissal if possible.
“Outlast” The Revocation
Delay, delay, delay. Depending on the County in which you are charged, your best plan of attack may be to attempt to have your case continued until you are finally able to get your license back, at which point you can present your license to the District Attorney’s Office and request the charge be dismissed. Of course, prior to settling in for the long term, you will want to speak with local attorneys in the County in which you’re charged, or even the District Attorney’s Office, and determine if there is a standard practice in the county that will allow for this tactic. I know I’m starting to sound like a broken record, but once again it is important that you consider hiring an attorney to assist you with your case. The consequences of a DWLR conviction are severe enough to warrant the assistance of an attorney in most cases, and especially if this is the chosen tactic. It would be counterproductive to attempt a delay tactic when in reality the County where you were charged does not allow for dismissals of DWLR charges in the manner.
Fight the Charge
Depending upon the facts of your case, it is very possible you are innocent, or that the State will not be able to prove their case beyond a reasonable doubt. Trial is never absolute, and that goes for both the Prosecution and the Defense. Your case very well may have viable points of defense which deserve to be tried. Any good trial attorney will start with the detailed facts of your case, and use those facts to shape a possible defense to the charges lodged against you. Many facts can fall into “gray” areas of the law where case law, rather than statutory language, will come into play to help guide a decision-maker to the proper adjudication of your case. Interpretation of statutory language is often ironed out this way under a variety of factual circumstances. Every case has a defense. But it takes an astute attorney to determine the chance of success at trial.
Additionally, a loss in District Court might not be the final say in your case. Once convicted, you have the right to appeal the case to Superior Court for a trial de novo, meaning the entire case proceeds anew in Superior Court as if the District Court trial never occurred. In addition to altered discovery procedures, Superior Court trials are heard before a jury of your peers who listen to the evidence presented and make a final ruling of guilt or innocence.
North Carolina DWLR charges are complex, and often entail a multitude of varying facts and circumstances which makes a "standard" or "typical" case nearly impossible to pin down. This, in turn, makes boilerplate advice ineffective. Simply put, the nature of this area of law typically necessitates the assistance of a criminal defense attorney who is capable of closely analyzing the facts of your individual case. Only then can a strategy be developed.
QUESTIONS OR CORRECTIONS
I’m always interested in making sure the information provided in The Law Abides is accurate and up to date. Any questions or corrections you may have related to this article, or your case, can be directed to Tyler Hite by e-mail (firstname.lastname@example.org), phone (828-263-4907), or through my website here. I offer free initial consultations, and will be happy to listen to and answer case specific questions. Please note, contacting my office does not create a client-attorney relationship, but any information you provide will be held in confidence as required by the North Carolina Rules of Professional Conduct for a potential client.