{ "id": 11437376, "name": "STATE OF NORTH CAROLINA v. SCOTT EVANS", "name_abbreviation": "State v. Evans", "decision_date": "2001-08-07", "docket_number": "No. COA99-1527", "first_page": "324", "last_page": "335", "citations": [ { "type": "official", "cite": "145 N.C. App. 324" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "459 U.S. 553", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6200055 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "558" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/us/459/0553-01" ] }, { "cite": "518 U.S. 267", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1730053 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "292" }, { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/us/518/0267-01" ] }, { "cite": "303 U.S. 391", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141190 ], "weight": 2, "year": 1938, "pin_cites": [ { "page": "399-400" }, { "page": "922" } ], "opinion_index": 0, "case_paths": [ "/us/303/0391-01" ] }, { "cite": "508 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571662 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0483-01" ] }, { "cite": "340 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1986, "pin_cites": [ { "page": "730" }, { "page": "734" }, { "page": "733" }, { "page": "734" } ], "opinion_index": 0 }, { "cite": "315 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718753 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "489" }, { "page": "494" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0474-01" ] }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "295" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "154 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "270 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567865 ], "year": 1967, "pin_cites": [ { "page": "332-33" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0323-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "531 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9505564 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "262" }, { "page": "746" } ], "opinion_index": 0, "case_paths": [ "/us/531/0250-01" ] }, { "cite": "372 U.S. 144", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765344 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "168-69" }, { "page": "660-61" } ], "opinion_index": 0, "case_paths": [ "/us/372/0144-01" ] }, { "cite": "317 U.S. 537", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 304067 ], "weight": 2, "year": 1943, "pin_cites": [ { "page": "549" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/us/317/0537-01" ] }, { "cite": "470 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1996, "pin_cites": [ { "page": "18", "parenthetical": "citing N.C. Const., art. I, \u00a7 19" }, { "page": "20" }, { "page": "21" }, { "page": "20" }, { "page": "21", "parenthetical": "citations omitted" }, { "page": "21", "parenthetical": "stating that a driver's license is a conditional privilege for which the General Assembly may prescribe conditions upon which licenses may be issued and revoked" }, { "page": "20" }, { "page": "21" } ], "opinion_index": 0 }, { "cite": "343 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798768 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "205", "parenthetical": "citing N.C. Const., art. I, \u00a7 19" }, { "page": "207" }, { "page": "210" }, { "page": "209-10" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0202-01" ] }, { "cite": "511 U.S. 767", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147262 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/0767-01" ] }, { "cite": "522 U.S. 93", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11470872 ], "weight": 36, "year": 1997, "pin_cites": [ { "page": "98-99" }, { "page": "458" }, { "page": "458", "parenthetical": "citation omitted" }, { "page": "99" }, { "page": "459" }, { "page": "99-100" }, { "page": "459" }, { "page": "101" }, { "page": "460" }, { "page": "99" }, { "page": "459" }, { "page": "100" }, { "page": "459", "parenthetical": "citation omitted" }, { "page": "99" }, { "page": "459", "parenthetical": "citation omitted" }, { "page": "104" }, { "page": "462", "parenthetical": "citations omitted" }, { "parenthetical": "citation omitted" }, { "page": "104" }, { "page": "462" }, { "page": "99" }, { "page": "459", "parenthetical": "citation omitted" }, { "page": "102" }, { "page": "461" }, { "page": "105" }, { "page": "463" }, { "page": "99" }, { "page": "459", "parenthetical": "citation omitted" }, { "page": "105" }, { "page": "462", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/522/0093-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 1011, "char_count": 25665, "ocr_confidence": 0.771, "pagerank": { "raw": 1.5757578187141956e-07, "percentile": 0.6795083419921393 }, "sha256": "100a0da405fbadb6a72909e29b84186c88d05e46972d89801463122548264798", "simhash": "1:2a7d8b761669c3f3", "word_count": 4115 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SCOTT EVANS" ], "opinions": [ { "text": "McGEE, Judge.\nScott Evans (defendant) was charged with driving while impaired (DWI) pursuant to N.C. Gen. Stat. \u00a7 20-138.1 on 4 April 1998. Following his arrest, an Intoxilizer test was administered to the sixteen-year-old defendant which revealed a blood alcohol concentration of 0.08 or greater. Pursuant to N.C. Gen. Stat. \u00a7 20-16.5, the defendant\u2019s driver\u2019s license was revoked for thirty days and until the payment of a $50.00 restoration fee. At his first appearance before the trial court on 20 May 1998 for the criminal charge of DWI, defendant completed an affidavit of indigency. Counsel was appointed to represent defendant. Defendant paid the $50.00 restoration fee to the Chatham County Clerk of Court on 26 June 1998 to secure the return of his driver\u2019s license, pending the outcome of his criminal trial. Defendant did not petition the trial court for a 20-day limited driving privilege as provided by N.C.G.S. \u00a7 20-16.5(p).\nDefendant\u2019s criminal DWI charge was called for trial on 1 July 1998 in Chatham County District Court before Judge Alonzo B. Coleman. The same day, defendant moved to dismiss the DWI charge, arguing that the 30-day revocation of his driver\u2019s license was punishment. He contended that the subsequent criminal prosecution and punishment for driving while impaired under N.C.G.S. \u00a7 20-138.1 violated his double jeopardy rights. Judge Coleman granted defendant\u2019s motion to dismiss. The State filed a notice of appeal on 9 July 1998, pursuant to N.C. Gen. Stat. \u00a7 15A-1432(a)(l) in Superior Court, Chatham County.\nThe State\u2019s appeal was heard on 21 September 1998 by Superior Court Judge Wade Barber. At the hearing, the State and defendant agreed that eight pending DWI cases, all raising the same basic issue of double jeopardy, would be heard together and their evidence consolidated.\nJudge Barber entered an order on 12 July 1999 reversing the district court\u2019s order as to the four non-indigent DWI defendants and remanded those defendants to the district court for a criminal DWI trial. In so doing, the court concluded that criminal prosecution of the non-indigent DWI defendants after the revocation of their drivers\u2019 licenses would not violate their double jeopardy rights. Judge Barber, however, affirmed the district court\u2019s order to dismiss the DWI criminal charges as to the four indigent DWI defendants, including defendant in this case. The court concluded that the Double Jeopardy Clause of the United States Constitution barred criminal prosecution of indigent DWI defendants whose licenses had been civilly revoked for thirty days because \u201cthe effort and expense of obtaining a limited driving privilege were completely unmanageable.\u201d The State appealed the 12 July 1999 order, pursuant to N.C. Gen. Stat. \u00a7 15A-1445(a)(l), and defendant cross-assigned errors.\nOn appeal, the State contends that the superior court committed reversible error by concluding that the 30-day revocation of defendant\u2019s driver\u2019s license pursuant to N.C.G.S. \u00a7 20-16.5 constitutes punishment for purposes of double jeopardy analysis under the United States Constitution. The State argues that the 30-day driver\u2019s license revocation contained in N.C.G.S. \u00a7 20-16.5 is a civil sanction promulgated to support highway safety. Therefore, the State argues, because the license revocation is a civil sanction rather than a criminal penalty, the Double Jeopardy Clause does not bar defendant\u2019s subsequent criminal prosecution for DWI. By a cross-assignment of error, defendant argues, inter alia, that N.C.G.S. \u00a7 20-16.5 is unconstitutional in that it violates the Double Jeopardy Clauses contained in the United States and North Carolina Constitutions. Defendant contends that under Hudson v. United States, 522 U.S. 93, 139 L. Ed. 2d 450 (1997), the 30-day driver\u2019s license revocation contained in N.C.G.S. \u00a7 20-16.5 constitutes a criminal punishment and, therefore, the double jeopardy doctrine is properly invoked to prevent defendant\u2019s subsequent criminal prosecution for DWI.\nThe Double Jeopardy Clause prohibits \u201ca second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.\u201d Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767 (1994). \u201cThe Law of the Land Clause incorporates similar protections under the North Carolina Constitution.\u201d State v. Oliver, 343 N.C. 202, 205, 470 S.E.2d 16, 18 (1996) (citing N.C. Const., art. I, \u00a7 19). On appeal, defendant relies upon Hudson v. United States, 522 U.S. 93, 139 L. Ed. 2d 450 (1997), cited in the trial court\u2019s 12 July 1999 order, to support his argument that the civil revocation of his driver\u2019s license constituted punishment for double jeopardy purposes under both the United States and North Carolina Constitutions.\nIn Hudson, the United States Supreme Court modified the standard for double jeopardy analysis. According to the Hudson Court, \u201cthe Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, \u2018in common parlance,\u2019 be described as punishment. \u201d Id. at 98-99, 139 L. Ed. 2d at 458 (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 87 L. Ed. 443, 452 (1943)). Instead, \u201c[t]he [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense.\u201d Id. at 99, 139 L. Ed. 2d at 458 (citation omitted). The Court then advanced a two-part inquiry for determining whether a statutory scheme imposes punishment for double jeopardy purposes:\nWhether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, \u201cin establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.\u201d Even in those cases where the legislature \u201chas indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect\u201d as to \u201ctransform] what was clearly intended as a civil remedy into a criminal penalty.\u201d\nIn evaluating the second part of the analysis, the Hudson Court counseled in favor of courts applying the factors previously listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 660-61 (1963). Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459. These factors include:\n(1) \u201c[w]hether the sanction involves an affirmative disability or restraint\u201d; (2) \u201cwhether it has historically been regarded as a punishment\u201d; (3) \u201cwhether it comes into play only on a finding of sci-enter\u201d-, (4) \u201cwhether its operation will promote the traditional aims of punishment \u2014 retribution and deterrence; (5) \u201cwhether the behavior to which it applies is already a crime\u201d; (6) \u201cwhether an alternative purpose to which it may rationally be connected is assignable for it\u201d; and (7) \u201cwhether it appears excessive in relation to the alternative purpose assigned.\u201d\nId. at 99-100, 139 L. Ed. 2d at 459. The Court cautioned in Hudson that no one factor is controlling. Id. at 101, 139 L. Ed. 2d at 460. In Seling v. Young, 531 U.S. 250, 262, 148 L. Ed. 2d 734, 746 (2001), the United States Supreme Court also stated that \u201cthe clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose or effect.\u201d\nThus, pursuant to the two-part inquiry articulated in Hudson, we must begin by examining the purpose behind N.C.G.S. \u00a7 20-16.5, the statute at issue. N.C.G.S. \u00a7 20-16.5 was amended by the General Assembly effective 1 December 1997. Prior to the 1 December 1997 amendment, the statute provided for a 10-day pre-trial revocation of an individual\u2019s driver\u2019s license for operating a motor vehicle with an alcohol concentration of 00.08 or greater or for refusing to submit to a chemical analysis. The amendment to N.C.G.S. \u00a7 20-16.5 provides for an immediate 30-day civil license revocation \u201cfor certain persons charged with implied-consent offenses.\u201d An individual\u2019s driver\u2019s license is subject to revocation under N.C.G.S. \u00a7 20-16.5 if:\n(1) A charging officer has reasonable grounds to believe that the person has committed an offense subject to the implied-consent provisions of G.S. 20-16.2;\n(2) The person is charged with that offense as provided in G.S. 20-16.2(a);\n(3) The charging officer and the chemical analyst comply with the procedures of G.S. 20-16.2 and G.S. 20-139.1 in requiring the person\u2019s submission to or procuring a chemical analysis; and\n(4) The person:\na. Willfully refuses to submit to the chemical analysis;\nb. Has an alcohol concentration of 0.08 or more within a relevant time after the driving;\nc. Has an alcohol concentration of 0.04 or more at any relevant time after the driving of a commercial vehicle; or\nd. Has any alcohol concentration at any relevant time after the driving and the person is under 21 years of age.\nN.C.G.S. \u00a7 20-16.5(b). The statute does, however, provide for a limited driving privilege during the 30-day period of revocation, so long as:\n(1) At the time of the alleged offense the person held either a valid drivers license or a license that had been expired for less than one year;\n(2) Does not have an unresolved pending charge involving impaired driving except the charge for which the license is currently revoked ... or additional convictions of an offense involving impaired driving since being charged for the violation [at issue];\n(3) The person\u2019s license has been revoked for at least 10 days if the revocation is for 30 days . . .; and\n(4) The person has obtained a substance abuse assessment from a mental health facility and registers for and agrees to participate in any recommended training or treatment program.\nN.C.G.S. \u00a7 20-16.5(p).\nIn the case before us, defendant argues that although N.C.G.S. \u00a7 20-16.5 is entitled \u201cImmediate civil license revocation for certain persons charged with implied-consent offenses,\u201d when the General Assembly amended the statute in 1997, the statutory scheme became so punitive, by tripling the revocation period, as to transform the remedy into a criminal punishment.\nIn support of his contention, defendant presents as evidence a statement by then Governor James B. Hunt, Jr. that the 30-day revocation was introduced as a part of the State\u2019s on-going efforts to \u201ccrack down on drunk drivers and let them know they\u2019ll pay the price.\u201d See \u201cGov. Hunt Announces Plans to Toughen Penalties for Drunk Drivers,\u201d Press Release, State of North Carolina, Office of the Governor, 16 October 1996. Defendant asserts that this statement, as well as statements from the Governor\u2019s Highway Safety Committee, prove that the extension of the 10-day revocation period was intended to be punitive.\nWhen construing statutes, our courts should always give effect to the intent of the General Assembly. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). However,\n[w]hile the cardinal principle of statutory construction is that the words of the statute must be given the meaning which will carry out the intent of the Legislature .... [testimony, even by members of the Legislature which adopted the statute, as to its purpose and the construction intended to be given by the Legislature to its terms, is not competent evidence upon which the court can make its determination as to the meaning of the statutory provision.\nMilk Commission v. Food Stores, 270 N.C. 323, 332-33, 154 S.E.2d 548, 555 (1967). Thus, \u201c[e]ven the commentaries printed with the North Carolina General Statutes, which were not enacted into law by the General Assembly, are not treated as binding authority by this Court.\u201d Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 657, 403 S.E.2d 291, 295 (1991). Accordingly, press releases and commission recommendations offered by defendant as evidence of the punitive purpose behind N.C.G.S. \u00a7 20-16.5 are in no manner binding authority on this Court.\nIn Henry v. Edmisten, 315 N.C. 474, 340 S.E.2d 720 (1986) and State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996), our Supreme Court interpreted the prior version of N.C.G.S. \u00a7 20-16.5. Both the Henry Court and the Oliver Court held that the 10-day driver\u2019s license revocation did not constitute punishment for purposes of double jeopardy analysis under either the Double Jeopardy Clause of the United States Constitution or the Law of the Land Clause of the North Carolina Constitution.\nIn Henry, our Supreme Court clearly established that the original legislative intent of N.C.G.S. \u00a7 20-16.5 was the promotion of highway safety. In Henry, the plaintiffs, both of whom were charged with driving while impaired, argued that the 10-day revocation prescribed by N.C.G.S. \u00a7 20-16.5 was \u201cnot reasonably related to the state\u2019s interest in shielding the public from the danger posed by a driver who fails a breath test.\u201d Henry, 315 N.C. at 489, 340 S.E.2d at 730. The Henry plaintiffs further argued that the \u201cten-day revocation [was] unnecessarily long if the purpose [was] to protect the public from the hazards of an impaired driver on the particular occasion for which he [was] arrested.\u201d Id. The plaintiffs then suggested that \u201ca twenty-four hour revocation would be sufficient to achieve this purpose.\u201d Id. Our Supreme Court disagreed, stating:\nAlthough one purpose of summary license revocation is to safeguard the public from an impaired driver on the particular occasion on which the driver is arrested, the revocation has a broader purpose. The statute authorizing revocation assumes implicitly that drivers who have driven impaired on one occasion pose an appreciable risk of repeating their conduct. We cannot say this assumption is so unreasonable as to prevent the state from summarily suspending a person\u2019s driving privileges.\nId. The Court then concluded that \u201cthe summary revocation procedure of \u00a7 16.5 is not a punishment but a highway safety measure . . . the bill as finally enacted reflects an intent by the legislature for the revocation provision to be a remedial measure.\u201d Id. at 495, 340 S.E.2d at 734.\nTen years later in Oliver, our Supreme Court again examined N.C.G.S. \u00a7 20-16.5. The Oliver Court first noted that \u201c[historically this Court has long viewed drivers\u2019 license revocations as civil, not criminal, in nature.\u201d Oliver, 343 N.C. at 207, 470 S.E.2d at 20. The Court also stated that \u201c[a]n impaired driver presents an immediate, emergency situation, and swift action is required to remove the unfit driver from the highways in order to protect the public.\u201d Id. at 209, 470 S.E.2d at 21. Because \u201c[s]uch a person . . . represents a demonstrated present as well as [an] appreciable future hazard to highway safety, [t]he safety of the impaired driver and other people using the [S]tate\u2019s highways depends upon immediately denying the impaired driver access to the public roads.\u201d Id. at 208, 470 S.E.2d at 20, (quoting Henry v. Edmisten, 315 N.C. 474, 494, 340 S.E.2d 720, 733 (1986)). Moreover, the Court stated,\n[our Court] has long held that a driver\u2019s license \u2018is not a natural or unrestricted right, nor is it a contract or property right in the constitutional sense. It is a conditional privilege, and the General Assembly has full authority to prescribe the conditions upon which licenses may be issued and revoked. The ten-day driver\u2019s license revocation . . . merely signifies the failure of the driver to adhere to the conditions imposed by the legislature on the driver\u2019s license. As such, it is not punishment.\nId. at 210, 470 S.E.2d at 21 (citations omitted).\nThe only relevant difference between N.C.G.S. \u00a7 20-16.5 when it was analyzed and interpreted in Henry and Oliver and the statute in its present form is that the revocation period has been increased from ten days to thirty days. The function of the legislation, however, did not change. The function and intent of the statute is to remove from our highways drivers who either cannot or will not operate a motor vehicle safely and soberly. The purpose of license revocation in N.C.G.S. \u00a7 20-16.5 is clearly to prevent unsafe and unfit drivers from operating vehicles and endangering the citizens of North Carolina. Moreover, neither Henry nor Oliver predicated their double jeopardy analysis upon the length of the revocation. Rather, both cases referred to driver\u2019s license revocations generally. Defendant has offered no compelling reason on appeal for us to depart from the legislative intent and purpose of N.C.G.S. \u00a7 20-16.5 as established by our Supreme Court in Henry and Oliver. Although we find no punitive purpose on the face of N.C.G.S. \u00a7 20-16.5, we are aware that, at some point, a further increase in the revocation period by the General Assembly becomes excessive, even when considered in light of the well-established goals of N.C.G.S. \u00a7 20-16.5. Whether it is a further doubling or tripling of the revocation period, there is a point at which the length of time can no longer serve a legitimate remedial purpose, and the revocation provision could indeed violate the Double Jeopardy Clause.\nWe must next examine whether the effect of N.C.G.S. \u00a7 20-16.5 is punitive in that it punishes a defendant twice for the same offense. In examining the effect of the law, the factors articulated in Kennedy \u201cprovide useful guideposts.\u201d Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459; see State v. Thompson, 349 N.C. 483, 508 S.E.2d 277 (1998). We therefore consider the seven Kennedy factors. However, because N.C.G.S. \u00a7 20-16.5, as enacted, reflects an \u201cintent by the legislature for the revocation provision to be a remedial measure,\u201d Henry, 315 N.C. at 495, 340 S.E.2d at 734, \u201c \u2018only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.\u201d Hudson, 522 U.S. at 100, 139 L. Ed. 2d at 459 (citation omitted).\nThe first Kennedy factor requires a review of \u201c[w]hether the sanction involves an affirmative disability or restraint.\u201d Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459 (citation omitted). In this case, defendant argues that the 30-day driver\u2019s license revocation and $50.00 revocation fee authorized by N.C.G.S. \u00a7 20-16.5 amount to an \u201caffirmative disability or restraint. \u201d We disagree.\nIn Hudson, the Court stated that an \u201caffirmative disability or restraint\u201d generally is some sanction \u201capproaching the \u2018infamous punishment\u2019 of imprisonment.\u201d Hudson, 522 U.S. at 104, 139 L. Ed. 2d at 462 (citations omitted). The Hudson Court concluded that the sanction at issue, indefinite prohibition from participating in the banking industry, did not involve an \u201caffirmative disability or restraint.\u201d Id. Likewise, in defendant\u2019s case, a 30-day driver\u2019s license revocation and $50.00 revocation fee cannot be said to \u201capproach the \u2018infamous punishment\u2019 of imprisonment.\u201d Id. (citation omitted).\nThe second Kennedy factor asks whether, from a historical perspective, the sanction has been viewed as punishment. Historically, punishment has taken the forms of incarceration and incapacitation. This form of punishment is available under N.C. Gen. Stat. \u00a7 20-138.1, the DWI criminal statute. Incarceration and incapacitation are not available under N.C.G.S. \u00a7 20-16.5. Moreover, \u201crevocation of a privilege voluntarily given,\u201d such as a driver\u2019s license in this case, \u201cis characteristically free of the punitive element.\u201d Hudson, 522 U.S. at 104, 139 L. Ed. 2d at 462, (quoting Helvering v. Mitchell, 303 U.S. 391, 399-400, 82 L. Ed. 917, 922 (1938)); see also Oliver, 343 N.C. at 210, 470 S.E.2d at 21 (stating that a driver\u2019s license is a conditional privilege for which the General Assembly may prescribe conditions upon which licenses may be issued and revoked). Finally, as previously noted in Oliver, our Supreme Court stated that \u201cthis Court has long viewed drivers\u2019 license revocations as civil, not criminal, in nature.\u201d Id. at 207, 470 S.E.2d at 20. Accordingly, defendant has failed to establish the second Kennedy factor.\nWe agree with the State and defendant that the third Kennedy factor, a finding of scienter, is not an element of the 30-day license revocation under N.C.G.S. \u00a7 20-16.5.\nThe fourth Kennedy factor asks whether the sanction promotes the \u201ctraditional aims of punishment \u2014 retribution and deterrence.\u201d Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459 (citation omitted). The Supreme Court in Hudson noted, however, that \u201call civil penalties have some deterrent effect.\u201d Id. at 102, 139 L. Ed. 2d at 461. \u201cIf a sanction must be \u2018solely\u2019 remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.\u201d Id. Moreover, the Court continued, \u201cthe mere presence of a [deterrent quality] is insufficient to render a sanction criminal [because] deterrence \u2018may serve civil, as well as criminal goals.\u2019 \u201d Id. at 105, 139 L. Ed. 2d at 463 (quoting United States v. Ursery, 518 U.S. 267, 292, 135 L. Ed. 2d 549, 570 (1996)).\nWe acknowledge that N.C.G.S. \u00a7 20-16.5 operates as a deterrent to driving while impaired. Certainly, persons who choose to drive while impaired know that if their actions are observed by law enforcement, they will be charged with DWI and face a temporary license revocation. However, \u201cany deterrent effect a driver\u2019s license revocation may have upon the impaired driver is merely incidental to the overriding purpose of protecting the public\u2019s safety.\u201d Oliver, 343 N.C. at 209-10, 470 S.E.2d at 21. Thus, we conclude that although N.C.G.S. \u00a7 20-16.5 does operate as a deterrent, the deterrent effect of N.C.G.S. \u00a7 20-16.5 is insufficient to implicate double jeopardy. Accordingly, this factor does not weigh in defendant\u2019s favor.\nThe fifth Kennedy factor asks \u201cwhether the behavior to which [the statute] applies is already a crime.\u201d Hudson, 522 U.S. at 99, 139 L. Ed. 2d at 459 (citation omitted). Violating the implied consent offense of driving with an alcohol concentration of 0.08 or more is a crime under N.C.G.S. \u00a7 20-138.1. However, \u201c[t]his fact is insufficient, to render\u201d the 30-day driver\u2019s license revocation and $50.00 revocation fee \u201ccriminally punitive, particularly in the double jeopardy context.\u201d Id. at 105, 139 L. Ed. 2d at 462 (citations omitted).\nThe final two factors under the Kennedy analysis require us to decide whether there is a remedial purpose behind N.C.G.S. \u00a7 20-16.5, and if so, whether the statute is excessive in relation to the remedial purpose. Defendant concedes that there is a remedial purpose behind the sanctions imposed by N.C.G.S. \u00a7 20-16.5, that is, removing impaired drivers from the highway while they are a risk to themselves and others. However, defendant argues that the sanction imposed is excessive in relation to the remedial purpose. We disagree.\nAs we have stated, N.C.G.S. \u00a7 20-16.5 serves the important purpose of protecting the public from impaired drivers. \u201cThe carnage caused by drunk drivers is well documented and needs no detailed recitation here.\u201d South Dakota v. Neville, 459 U.S. 553, 558, 74 L. Ed. 2d 748, 755 (1983). However, we are also mindful of the burdens N.C.G.S. \u00a7 20-16.5 places on defendant, burdens which may vary depending upon a defendant\u2019s economic status. Nonetheless, given the gravity of the State\u2019s interest in protecting the public from impaired drivers, we conclude that the sanctions imposed by N.C.G.S. \u00a7 20-16.5 are not excessive in relation to the remedial purpose.\nHaving examined N.C.G.S. \u00a7 20-16.5 in light of the two-part analysis established by Hudson, we reject defendant\u2019s argument that Hudson requires a conclusion that the driver\u2019s license revocation found in N.C.G.S. \u00a7 20-16.5 constitutes punishment for purposes of double jeopardy analysis under both the Double Jeopardy Clause of the United States Constitution and the Law of the Land Clause of the North Carolina Constitution. Because we conclude that N.C.G.S. \u00a7 20-16.5 is neither punitive in purpose nor effect, we need not reach defendant\u2019s remaining assignments of error in which he argues that the limited driving privilege provided for in N.C.G.S. \u00a7 20-16.5(p) does not negate the punitive nature of the statute because N.C.G.S. \u00a7 20-16.5 violates the United States and North Carolina Constitutions. Accordingly, we agree with the State that the trial court erred when it granted defendant\u2019s motion to dismiss. We reverse the 12 July 1999 order and remand for trial.\nReversed and remanded.\nJudges WYNN and TIMMONS-GOODSON concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T Avery, III and Associate Attorney General Stacey T. Carter, for the State.", "Amber A. Corbin, P.C., by Amber A. Corbin, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SCOTT EVANS\nNo. COA99-1527\n(Filed 7 August 2001)\nConstitutional Law\u2014 double jeopardy \u2014 driving while impaired \u2014 revocation of driver\u2019s license \u2014 civil penalty\nThe trial court erred in a driving while impaired case by concluding that the 30-day civil revocation of defendant\u2019s driver\u2019s license under N.C.G.S. \u00a7 20-16.5 constitutes a criminal penalty in violation of double jeopardy, because: (1) any deterrent effect a driver\u2019s license revocation may have upon the impaired driver is merely incidental to the overriding purpose of protecting the public\u2019s safety; (2) the sanctions imposed by the statute are not excessive in relation to the remedial purpose of removing impaired drivers from the highway while they are a risk to themselves and others; and (3) N.C.G.S. \u00a7 20-16.5 is neither punitive in purpose or effect.\nAppeal by the State from order entered 12 July 1999 by Judge Wade Barber in Superior Court, Chatham County. Heard in the Court of Appeals 17 August 2000.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T Avery, III and Associate Attorney General Stacey T. Carter, for the State.\nAmber A. Corbin, P.C., by Amber A. Corbin, for defendant-appellee." }, "file_name": "0324-01", "first_page_order": 354, "last_page_order": 365 }