{ "id": 8552164, "name": "IN THE MATTER OF THE CANCELLATION OR SUSPENSION OF THE OPERATOR'S LICENSE OF JOHN LINARD AUSTIN", "name_abbreviation": "In re the Cancellation or Suspension of the Operator's License of Austin", "decision_date": "1969-08-13", "docket_number": "No. 6929SC293", "first_page": "575", "last_page": "581", "citations": [ { "type": "official", "cite": "5 N.C. App. 575" } ], "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": "106 S.E. 2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "249 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617510 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/249/0472-01" ] }, { "cite": "164 S.E. 2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560662 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0473-01" ] } ], "analysis": { "cardinality": 479, "char_count": 14617, "ocr_confidence": 0.562, "pagerank": { "raw": 2.9198150227848606e-07, "percentile": 0.8465192372219384 }, "sha256": "04673e7550b014b1a9fcfc6b7da3b878c35da1bbf55757f691bed614052b3588", "simhash": "1:a70adef3001198e9", "word_count": 2384 }, "last_updated": "2023-07-14T22:58:43.915660+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Beitt and PabKee, JJ., concur." ], "parties": [ "IN THE MATTER OF THE CANCELLATION OR SUSPENSION OF THE OPERATOR\u2019S LICENSE OF JOHN LINARD AUSTIN" ], "opinions": [ { "text": "Mallard, C.J.\nG.S. 20-25 provides:\n\u201cAny person denied a license or whose license has been cancel-led, suspended or revoked by the Department, except where such cancellation is mandatory under the provisions of this article, shall have a right to file a petition within thirty (30) days thereafter for a hearing in the matter in the superior court of the county wherein such person shall reside, or to the resident judge of the district or judge holding court of that district, or special or emergency judge holding a court in such district in which the violation was committed, and such court of judge is hereby vested with jurisdiction and it shall be its or his duty to set the matter for hearing upon thirty (30) days\u2019 written notice to the Department, and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this article,\u201d (Emphasis added).\nDiscretionary revocation of a driver\u2019s license is reviewable under the provisions of G.S. 20-25, but mandatory revocations are not. Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 164 S.E. 2d 2 (1968). G.S. 20-17(2) provides that the Department of Motor Vehicles (Department) shall forthwith revoke the license of one whose conviction for driving under the influence of intoxicating liquor has become final.\n\u201cIt is mandatory under the provisions of G.S. 20-17(2) for the Department to revoke the license of any operator or chauffeur upon receiving a record of such operator\u2019s or chauffeur\u2019s conviction for \u2018driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug.\u2019 \u201d Carmichael v. Scheidt, Comr. of Motor Vehicles, 249 N.C. 472, 106 S.E. 2d 685 (1959).\nIn this case, it was mandatory that the Department of Motor Vehicles revoke the license of petitioner upon receipt of a record of his conviction for driving under the influence of intoxicating liquor. Where there is a mandatory revocation under the provisions of G.S. 20-17(2) \u201cthe period of revocation shall be as provided in G.S. 20-19.\u201d Carmichael v. Scheldt, Comr. of Motor Vehicles, supra. G.S. 20-19 (d) provides in part:\n\u201cWhen a license is revoked because of a second conviction for driving under the influence of intoxicating liquor or a narcotic drug, occurring within three years after a prior conviction, the period of revocation shall be four years; provided, that the Department may, after the expiration of two years, issue a new license upon satisfactory proof that the former licensee has been of good behavior for the past two years and that his conduct and attitude are such as to entitle him to favorable consideration and upon such terms and conditions which the Department may see fit to impose for the balance of said period of revocation; . . .\u201d\nIt is clear from the statute that the petitioner\u2019s lic\u00e9nse was mandatorily revoked for a period of four years. \u201cThere is no right of judicial review when the revocation is mandatory pursuant to the provisions of G.S. 20-17.\u201d Carmichael v. Scheldt, Comr. of Motor Vehicles, supra. Since the original revocation of petitioner\u2019s license was mandatory under the provisions of G.S. 20-17, the superior court was without authority to hear a petition and render a judgment revoking or modifying the mandatory revocation in this case; however, it appears that the petitioner also sought review by the Superior Court of the order of the Chief Hearing Officer of the North Carolina Department of Motor Vehicles after the hearing on 27 September 1968. This order, as alleged in the petition filed 8 October 1968 which allegation was not denied, reads as follows:\n\u201cAs a result of a recent hearing, the Department has decided that the revocation of the above mentioned person\u2019s driving privilege will remain \u2022 in effect until 12 September, 1970.\nSigned, J. Reece Welch,\nChief Hearing Officer.\u201d\nIn his petition to the Superior Court petitioner alleges and the respondent denies:\n\u201cThat more than three years has elapsed since the petitioner\u2019s license was revoked or suspended and that he presented to the Hearing Officer in Henderson County, North Carolina an affidavit of his good character and also produced evidence that he had not operated a motor vehicle on the highways of the State of North Carolina for more than three years. That the Department perfunctorily and arbitrarily, illegally and unlawfully continued the revocation of the petitioner\u2019s driving privilege until the 12th day of September, 1970, without considering any evidence of the petitioner whatsoever.\u201d\nWe think that if a petitioner is unlawfully and illegally denied a license upon a hearing on a petition for reinstatement of his license, the judge of the Superior Court, upon proper allegations in a petition and proper notice to the respondent as provided in G.S. 20-25 is authorized to take testimony, examine into the facts of the case, and determine whether the petitioner was illegally and unlawfully denied a license under the provisions of the Uniform Driver\u2019s .License Act.\nBefore the Department is permitted to issue to the former licensee a new license, two years must have elapsed from the beginning of the period of mandatory revocation and the Department must find \u201cupon satisfactory proof that the former licensee has been of good behavior for the past two years and that his conduct and attitude are such as to entitle him to favorable consideration.\u201d After that has been determined the Department may impose such terms and conditions as it sees fit for the remainder of the revocation period. Reinstatement, or the receipt of a new license during the revocation period, is not a legal right of the defendant but an act of grace which the General Assembly permits, but does not require, the Department to apply. The authority to exercise or apply this act of grace is granted to the Department, not to the courts. G.S. 20-19 (d).\nThe petitioner by alleging that he had produced an affidavit of his good character and also had produced evidence that he had not operated a motor vehicle on the highways of the State of North Carolina for more than three years does not support his conclusion that the Department \u201cperfunctorily and arbitrarily, illegally and unlawfully continued the revocation of the petitioner\u2019s driving privilege. . . .\u201d\nPetitioner offered no evidence in Superior Court in support of his allegations that the revocation was not mandatory or that he was unlawfully and illegally denied a license.\nIt was error for the Superior Court to enter the order rescinding the revocation of petitioner\u2019s license and requiring the Department to \u201cforthwith return to John Linden (sic)' Austin his operator\u2019s license.\u201d\nIt was also error for the judge of the Superior- Court to proceed to hear this matter without giving the Department notice of the hearing as required by G.S. 20-25. The letter of the petitioner\u2019s attorney informing the Chief Hearing Officer of the Department that the petitioner \u201cdesires to appeal to the Superior Court of Henderson County which convenes on December 16, 1968\u201d does not comply with the provisions of the statute requiring 30 days written notice to the Department.\nThe judgment of the Superior Court is\nReversed.\nBeitt and PabKee, JJ., concur.", "type": "majority", "author": "Mallard, C.J." } ], "attorneys": [ "Attorney General Robert Morgan, Assistant Attorney General William W. Melvin and Staff Attorney T. Buie Costen for the State.", "Arthur J. Redden for petitioner." ], "corrections": "", "head_matter": "IN THE MATTER OF THE CANCELLATION OR SUSPENSION OF THE OPERATOR\u2019S LICENSE OF JOHN LINARD AUSTIN\nNo. 6929SC293\n(Filed 13 August 1969)\n1. Automobiles \u00a7 2\u2014 revocation of driver\u2019s license \u2014 review\nDiscretionary revocation of a driver\u2019s license is reviewable under tbe provisions of G.S. 20-25, but mandatory revocations are not reviewable.\n2. Automobiles \u00a7 2\u2014 revocation of license \u2014 conviction of driving under influence\nRevocation of petitioner\u2019s driver\u2019s license for four years upon receipt of record of bis second conviction for driving under tbe influence of intoxicating liquor is mandatory. G.S. 20-17(2), G.S. 20-19.\nS. Automobiles \u00a7 2\u2014 mandatory revocation \u2014 review in superior court\nWhere tbe original revocation of petitioner\u2019s driver\u2019s license for a second conviction of driving under the influence of intoxicating liquor is mandatory under G.S. 20-17, tbe superior court is without authority to hear a petition and render a judgment revoking or modifying the revocation. G.S. 20-25.\n4. Automobiles \u00a7 3\u2014 illegal denial of license \u2014 review in superior court\nIf a petitioner is unlawfully and illegally denied a license upon a bearing on a petition for reinstatement of bis license, tbe judge of tbe superior court, upon proper allegations in a petition and proper notice to tbe respondent as provided in G.S. 20-25, is authorized to take testimony, examine tbe facts of tbe case, and determine whether petitioner was illegally and unlawfully denied a license under provisions of the Uniform Driver\u2019s License Act.\n5. Automobiles \u00a7 X\u2014 authority to issue license\nWhere driver\u2019s license is revoked for four years upon a second conviction for driving under the influence of intoxicating liquor, authority to issue a new license after the expiration of two years is granted to the Department of Motor Vehicles, not to the courts. G.S. 20-19 (d).\n6. Automobiles \u00a7 3\u2014 revocation of license \u2014 review in superior court \u2014 rescission of revocation\nIn the absence of evidence that the revocation of petitioner\u2019s driver\u2019s license upon a second conviction of driving while intoxicated was not mandatory or that petitioner was unlawfully and illegally denied a license, it was error for the superior court to enter an order rescinding the revocation of petitioner\u2019s license and requiring Department of Motor Vehicles to return petitioner\u2019s license forthwith.\n7. Automobiles \u00a7 3\u2014 revocation of license \u2014 review in superior court \u2014 notice to Department\nLetter of petitioner\u2019s attorney to the Chief Hearing ofiicer of the Department of Motor Vehicles informing him that petitioner \u201cdesires to appeal to the Superior Court of Henderson County which convenes on December 16, 1968\u201d the action of the Department in denying petitioner\u2019s application for reinstatement of his license, is held, not to comply with the provisions of G.S. 20-25 requiring 30 days written notice to the Department.\nOn certiorari to review judgment of Collier, J., 9 December 1968 Criminal Session of Superior Court held in HendeRSON County.\nFrom the record it appears that John Linard Austin\u2019s driver\u2019s license was revoked for a period of four years on 12 September 1966. The revocation was imposed for a second conviction of driving while under the influence of intoxicating liquor. On 27 September 1968, at Austin\u2019s request, a hearing was held by the Department of Motor Vehicles to consider reinstatement of petitioner\u2019s license. Austin\u2019s request for reinstatement of his license was denied for the reason that he had failed to provide satisfactory proof of good behavior for the period required by law and that his conduct and attitude were not such as to entitle him to favorable consideration for restoration of his driver\u2019s license. On 8 October 1968, Austin filed a petition.in the Superior Court to review the action of the Department of Motor Vehicles. This petition was filed allegedly pursuant to G.S. 20-25. By letter of 8 October 1968, petitioner\u2019s counsel forwarded a copy of the petition to the chief hearing officer of the Department of Motor Vehicles. The letter states that Austin \u201cdesires to appeal to the Superior Court of Henderson County which convenes on December 16, 1968.\u201d On 24 October 1968 respondent filed a reply to the petition denying the material allegation thereon and alleging, among other things, \u201cthat the petitioner herein was arrested and found guilty of public drunkenness in the City of Henderson-ville on May 18, 1968, June 9, 1968, and September 9, 1968,\u201d and praying for a dismissal of the action. On 18 December 1968, without notice to the respondent, the trial court undertook to hear this matter which was not on the court calendar. No notice was given to the respondent of the hearing other than the statement of petitioner\u2019s counsel in a letter dated 8 October 1968 to the Chief Hearing Officer of the N. C. Department of Motor Vehicles which reads as follows:\n\"Pursuant to your order dated September 30, 1968 regarding the cancellation or suspension of the driving privilege of John Lin-ard Austin, you will take notice that Mr. Austin desires to appeal to the Superior Court of Henderson County which convenes on December 16, 1968.\nI am enclosing copy of the petition which has been duly filed in the Superior Court, for your convenience, which I presume you will deliver to the Department of Justice for attention.\nI shall be glad to work with the Department of Justice and have this matter set for a day certain.\u201d\nRespondent did not take part in this proceeding. After receiving three affidavits in behalf of the petitioner, the trial court entered the following judgment:\n\u201cThis cause coming on to be heard before the undersigned judge presiding and holding the courts of the 29th Judicial District of North Carolina, and being heard upon the petition herein filed, and the answer or reply filed by the Department of Motor Vehicles, and being heard upon sworn testimony introduced in open court, it is therefore,\nCONSIDERED, ORDERED AND ADJUDGED that the order entered by the Department of Motor Vehicles of the State of North Carolina, revoking or suspending the operator\u2019s license of John Linden (sic) Austin be and the same is hereby recinded (sic); that the Department of Motor Vehicles shall immediately and forthwith return to John Linden (sic) Austin his operator\u2019s license. However, the operation of any motor vehicle by the said John Linden ( sic) Austin is hereby restricted in that he is permitted to operate a motor vehicle and drive same to his work and from his work and operate a motor vehicle in connection with his work, but he shall not operate any motor vehicle for pleasure or upon the highways of the State of North Carolina, except in the promotion and the operation of his business until September 12, 1970.\nThis the 18th day of December, 1968.\u201d\nThe Department of Motor Vehicles had no notice of the entry of this judgment until 8 January 1969 when it received a copy together with a letter from petitioner\u2019s counsel requesting a return of Austin\u2019s driver\u2019s license. The time for appeal having already expired, the respondent filed a petition for certiorari which was allowed.\nAttorney General Robert Morgan, Assistant Attorney General William W. Melvin and Staff Attorney T. Buie Costen for the State.\nArthur J. Redden for petitioner." }, "file_name": "0575-01", "first_page_order": 597, "last_page_order": 603 }