State v. Johnson

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-932 NORTH CAROLINA COURT OF APPEALS Filed: 17 December 2013 STATE OF NORTH CAROLINA v. Johnston County No. 09 CRS 55301 MACUS DONALD JOHNSON Appeal by defendant from judgment entered 17 January 2012 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 30 January 2013. Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Gerding Blass, appellant. PLLC, by Danielle Blass, for defendant- HUNTER, JR., Robert N., Judge. Macus Donald Johnson ( Defendant ) appeals the judgment entered after a jury convicted him of Driving While Impaired ( DWI ).1 1 Defendant contends that his trial for DWI following a In his appellate brief, Defendant describes his appeal of trial court s denial of his motion to dismiss. However, Notice of Appeal designates his appeal as stemming from trial court s judgment of conviction for DWI. According to the his the the -2one-year commercial driver s license ( CDL ) disqualification under N.C. Gen. Stat. § 20-17.4(a)(7) (2011) subjected him to double jeopardy. Upon review, we affirm. I. Facts & Procedural History Defendant was a truck driver for Logistics Recovery, a Federal Emergency Management Agency program that delivers heavy equipment and generators to storm victims. As part of his job, Defendant held a North Carolina Class A CDL. On 9 August 2009, Defendant a was driving his private vehicle, grey Chevrolet Silverado pickup truck. In the early morning hours of 9 August 2009, Lieutenant Kenneth Lunger ( Lieutenant Lunger ) was on patrol on Highway 70 West in Johnston County. Lieutenant Lunger observed Defendant make a U-turn from Highway 70 West onto Highway 70 East. Lieutenant traction Lunger with the saw Defendant road, he make followed a wide turn Defendant. and After lose Defendant proceeded less than a quarter-mile and turned into a shopping center, hitting a curb in the process. Lieutenant Lunger then North Carolina Rules of Appellate Procedure, the Notice of Appeal must designate the judgment or order from which appeal is taken[.] N.C. R. App. P. 3(d). Therefore, we construe the instant case as an appeal of the trial court s judgment of conviction for DWI. -3activated his lights, and Defendant pulled into a McDonald s parking lot. When Lieutenant Lunger approached began to talk to Defendant, he Lunger also noticed Defendant Defendant s smelled alcohol. had red, glazed truck and Lieutenant eyes. Upon questioning, Defendant told Lieutenant Lunger he had consumed several alcoholic beverages that night. Lieutenant Lunger then had sobriety Defendant Lieutenant undergo Lunger s several request, field Defendant Alco-Sensor portable breath test. also tests. submitted At to an The test indicated Defendant had a blood alcohol concentration above the legal limit. Based on the field sobriety tests and the preliminary breath test, Lieutenant Lunger arrested Defendant for DWI shortly after 1:00 A.M. Lieutenant Lunger took Defendant to the Clayton Police Department, where Defendant submitted to an Intoximeter breath test. This test indicated Defendant had a blood alcohol concentration of 0.09. Defendant then appeared before Johnston County Magistrate S.A. Wood ( Magistrate Wood ). Based on the breath test results, Magistrate Wood issued a Revocation Order When Person Present (the Revocation Order ) pursuant to N.C. Gen. Stat. § 20-16.5. Magistrate Wood then seized Defendant s personal -4driver s license and CDL. The Revocation Order remain[ed] in effect at least thirty (30) days from its issuance. According to the Revocation Order, Defendant could reclaim his license at the end of the thirty-day period if he paid a $100.00 civil revocation fee to the Johnston County Clerk of Superior Court. The Revocation Order also described Defendant s right to a hearing to contest the validity of this Revocation before a magistrate or judge. To do so, a written request must be made within ten (10) days of the effective date of the revocation. Defendant did not contest the 30-day revocation. At the end of the 30-day period, Defendant paid $100.00 to the Clerk of the Johnston County Superior Court and regained his personal driver s license and CDL. On 13 April 2010, the North Carolina Division of Motor Vehicles ( DMV ) notified Defendant that based on his 30-day civil license revocation, he was now disqualified from holding a CDL for one year pursuant to N.C. Gen. Stat. § 20-17.4(a)(7). The disqualification period ran from 23 April 2010 to 23 April 2011. The letter also stated a hearing is not authorized by statute. Based on his one-year CDL disqualification, Defendant subsequently lost his job as a truck driver. -5On 9 January 2012, Defendant filed a Motion to Dismiss his DWI charge in Johnston County Superior Court. He alleged that prosecution disqualification for DWI after a one-year CDL constituted impermissible double jeopardy. The Johnston County Superior Court denied his motion on 25 January 2012. Defendant received a jury trial during the 17 January 2012 Criminal Session of Johnston County Superior Court. January 2012, the jury found Defendant guilty of DWI. On 17 Defendant again received a 60-day suspended sentence with 12 months of unsupervised probation.2 On 17 January 2012, Defendant gave timely written notice of appeal. mero motu, On 2 May 2013 this Court, ex held the matter in abeyance until resolution of State v. McKenzie, 52A13, 2013 N.C. LEXIS 1019 (N.C. Oct. 4, 2013). II. This Court Jurisdiction & Standard of Review has jurisdiction to hear pursuant to N.C. Gen. Stat. § 7A-27(b) (2011). the instant case The standard of review for alleged violations of constitutional rights is de novo. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. rev. denied, 363 N.C. 2 As a special condition of probation, the superior court also required Defendant to: (i) obtain a substance abuse assessment; (ii) surrender his driver s license; and (iii) serve an active term of one day imprisonment on 21 January 2012. -6857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) ( [D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated. ). Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal. State v. Williams, 362 N.C. 628, 632 33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). III. Analysis On appeal, Defendant argues his DWI conviction after a oneyear CDL disqualification constitutes impermissible double jeopardy. Upon review, we affirm. Our Supreme Court decided the exact same legal issue in McKenzie, 52A13, 2013 N.C. LEXIS 1019. The Supreme Court, per curiam, adopted the dissent filed in this Court s opinion. Id. (citing State v. McKenzie, ___ N.C. App. ___, ___, 736 S.E.2d 591, 599, writ allowed, 366 N.C. 423, 736 S.E.2d 184 and rev d, 52A13, 2013 N.C. LEXIS 1019 (N.C. Oct. 4, 2013) (Hunter, J. Robert C., dissenting)). By adopting the dissent, the Supreme Court reversed our decision that prosecution for DWI after a one-year CDL disqualification constitutes impermissible double -7jeopardy. Id. determine: (i) The one-year dissent CDL applied the disqualification Hudson under test N.C. to Gen. Stat. § 20-17.4(a)(7) is a civil penalty; and (ii) one-year CDL disqualification is not so punitive as to become a criminal punishment for double jeopardy purposes. App. at ___, dissenting).3 736 S.E.2d at 601 03 McKenzie, ___ N.C. (Hunter, J. Robert C., See Hudson v. United States, 522 U.S. 93, 99 100 (1997) (quoting Kennedy v. Mendoza Martinez, 372 U.S. 144, 168 69 (1963)). Therefore, based on our Supreme Court s decision in McKenzie, we conclude Defendant s DWI conviction after a oneyear CDL disqualification did not constitute impermissible reasoning in double jeopardy. IV. Conclusion Based on our Supreme Court s State v. McKenzie, we affirm Defendant s conviction. AFFIRMED. 3 Hudson first requires us to ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. See Hudson v. United States, 522 U.S. 93, 99 (1997). Next, [e]ven in those cases where the legislature has indicated an intention to establish a civil penalty, we will consider seven factors to determine whether the penalty is so punitive it amounts to a criminal punishment. Id. -8Judges STEELMAN and GEER concur. Report per Rule 30(e).

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