52-93

Subject:

Motor Vehicles – limited driving privilege issuance where the judgment entered in the district court upon conviction for D.U.I. grants a limited driving privilege – defendant appeals to the superior court but case is later remanded to the district court for compliance and the trial judge is not available to issue the permit.

Requested By:

Honorable J. Patrick Exum Chief District Judge, 8th Judicial District

Question:

Where the trial judge is not available and a D.U.I. case appealed to the superior court is remanded to the district court for compliance:

(a)

May the Chief District Judge of the District in which the defendant was tried issue a limited driving privilege?

(b)

May the District Judge presiding in the same court in which the defendant was originally tried issue the limited driving privilege?

(c)

Must the trial judge, whomever he was and wherever he now is assuming he is alive and not disabled, issue the limited driving privilege?

(d)

If an assistant district attorney in the same district consents to the privilege and the conditions contained therein, and indicates by initialing the privilege, is that sufficient notice of intent to issue privilege?

Conclusions:

(a)

Yes.

(b)

Yes.

(c)

No.

(d)

Yes.

The Factual Situation given is that:

"A verdict of guilty and judgment entered in District Court for conviction of D.U.I., as part of the Judgment, defendant is to receive a Restricted Driver’s Privilege. However, in open court defendant takes an appeal to the Superior Court, and the Restricted Driving Privilege is never prepared according to G.S. 20-179, and signed by the trial judge. Further, no clear conditions are spelled out in the clerk’s minutes or in any other court records, although the Judgment does clearly show that the Court did approve a privilege. The case is subsequently remanded from Superior Court to District Court for Immediate Compliance with the District Court Judgment. The Trial Judge in District Court who tried the defendant is not available either because he was an emergency judge, from another Judicial District and cannot be readily reached; or, for other reason, such as death, disability, or retirement, is not available to sign the Restricted Driver’s Privileges. (No prior Restricted Driver’s Privilege has been issued for the defendant; hence, this is not a modification.)"

The applicable law reads in relevant part:

"20-179(b)(1) – Upon a first conviction only of any offense included in G.S. 20-138 or 20-139, and subject to the provisions of this subsection (b) the trial judge may issue a limited driving privilege when feasible and if the person convicted requests that he do so. . . .

(3)

If a person is convicted of another state or county or in a federal court of an offense that is equivalent to one of the provisions of G.S. 20-138(a), 20-138(b), 20-139(a), or 20-139(b), and if the person’s North Carolina driver’s license is revoked as a result of that conviction, the person so convicted may apply to the presiding or resident judge of the superior court or a district court judge of the district in which he resides for a limiting driving privilege. Upon such application the judge may issue a limited driving privilege in the same manner as if he were the trial judge.

(4)

A district court judge may modify a limited privilege if:

(a)

The holder of the limited privilege petitions the court for a modification of the privilege; and

(b)

The privilege was issued by a district court judge; and

(c)

The privilege was issued in the county in which the district judge is conducting court.

A superior court judge may modify a limited driving privilege if:

(a)

The holder of the limited privilege petitions the court for a modification of the privilege; and

(b)

The privilege was issued by a superior court judge; and

(c)

The privilege was issued in the county in which the superior court judge is conducting court."

Though the provisions of G.S. 20-179(b)(1) state "the trial judge may issue a limited driving privilege", subsection (3) permits a judge of the Superior Court or District Court to issue a limited driving privilege to a North Carolina operator convicted of D.U.I. in another state or county and subsection (4) permits modification of a limited driving privilege by any judge of the same division as that issuing the privilege. If these sections of the statute are construed in pari materia it appears the wording "the trial judge may issue a limited driving privilege" is an enabling phrase rather than jurisdictional limitation since any judge of the Superior Court or District Court may issue such permit on out of state convictions as well as modify an existing permit.

As to Conclusion (a) and (b), though it would appear that under the factual situation set out the trial judge in the same court may issue the limited driving privilege, the better practice would be for the Chief District Judge to handle such cases as it would assure uniformity and avoid confusion. Since the original judgment allowed the permit, we see nothing to prevent the issuances by the Chief District Judge of the district or the trial judge of the same court.

RUFUS L. EDMISTEN ATTORNEY GENERAL

William W. Melvin Senior Deputy Attorney General