State v. Hughes , 6 N.C. App. 287 ( 1969 )

PARKER, J.

Defendant appeals from judgment imposed on his conviction of violating G.S. 20-28 (a) and assigns as error the overruling of his motions for nonsuit made at the close of the State’s evidence and renewed at the close of all the evidence! G.S. 20-28 (a) in pertinent part provides:

“Any person whose operator’s or chauffeur’s license has been suspended or revoked other than permanently, as provided in this chapter, who shall drive any motor vehicle upon the highways of the State while such license is suspended or revoked shall be guilty of a misdemeanor; . . .”

Interpreting this statute, our North Carolina Supreme Court has stated that “(t)o constitute a violation of G.S. 20-28 (a) there must be (1) operation of a motor vehicle by a person (2) on a public highway (3) while his operator’s license is suspended or revoked.” State v. Cook, 272 N.C. 728, 731, 158 S.E. 2d 820, 822. In the present case there is no question as to the first two elements; appellant admits that on 28 July 1968, the date charged in the warrant, he drove his automobile on a public highway. Defendant challenges the sufficiency of the State’s evidence to establish the third element, that on the date in question his operator’s license was suspended.

All of the evidence is to the effect that on 28 July 1968 defendant had in his possession a valid North Carolina driver’s license which was not expired. The only evidence offered by the State to establish that defendant’s license was suspended on that date was the State’s Exhibit 1. This was a copy, certified by an authorized official of the North Carolina Department of Motor Vehicles to be a true copy, of the driver’s license record of defendant on file with the North Carolina Department of Motor Vehicles. [The copy of this exhibit filed with the record on appeal does not indicate whether it was under the seal of the Department of Motor Vehicles. If it was, then by virtue of G.S. 20-42 (b) it was “admissible in any proceeding in any court in like manner as the original thereof, without further certification.” Appellant has raised no question as to its being under seal and has conceded it was admissible.] Exactly what this exhibit establishes is, however, not altogether clear. It requires considerable interpretation to establish anything. The North Carolina Supreme Court, in an opinion by Winborne, C.J., in the case of State v. Moore, 247 N.C. 368, 101 S.E. 2d 26, had the following to say concerning a somewhat similar exhibit which had been introduced in evidence in that case:

“The language of the Exhibit is susceptible of the inference that it is a certified copy of the record of the North Carolina Department of Motor Vehicles Highway Patrol, signed by a proper official and bearing the seal of the Department, which is ‘admissible in any proceeding in any court in like manner as the original thereof, without further certification.’

“(Nevertheless, note is taken of the figures in the record, for instance figures 1, 2 and 3 each appearing 4 times on the left margin presumably relating to first, second and third revocations, and other figures separated by dashes, such as ‘11-10-49’ presumably indicating date of ‘November 10, 1949.’ This practice in judicial records ought not to be followed, and it is not approved. A form sufficiently clear to dispense with necessity of interpretation should be adopted by the Department.)” (Emphasis added.)

Examination of the State’s Exhibit 1 in the present case would indicate that the North Carolina Department of Motor Vehicles has not yet heeded the admonition of the Supreme Court that it should adopt a “form sufficiently clear to dispense with necessity of interpretation.”

Giving the State’s Exhibit 1 in the present case the benefit of a liberal interpretation, it is susceptible of the inference that the records in the North Carolina Department of Motor Vehicles indicate that defendant’s driver’s license had been suspended effective 1 July 1968, that the license would become eligible for reinstatement on 1 July 1969, and that the reason for the suspension was that defendant had failed a re-examination given him on 12 June 1968 pursuant to G.S. 20-29.1. The question remains as to whether the exhibit will support an inference that the license had been suspended as provided in Chapter 20 of the General Statutes, which is required before a conviction under G.S. 20-28 (a) may be sustained.

G.S. 20-29.1 in pertinent part provides:

“The Commissioner of Motor Vehicles, having good and sufficient cause to believe that a licensed operator or chauffeur is incompetent or otherwise not qualified to be licensed, may, upon written notice of at least five days to such licensee, require him to submit to a re-examination to determine his competency to operate a motor vehicle. Upon the conclusion of such examination, the Commissioner shall take such action as may be appropriate, and may suspend or revoke the license of such person or permit him to retain such license, or may issue a license subject to restrictions. . . .”

This section does not expressly require the Commissioner of Motor Vehicles, prior to suspending a license under its provisions, to give notice of such suspension to the operator. Such a requirement for notice is made by G.S. 20-16 (d) in all cases in which a license is suspended under the authority of that section. Even though a similar requirement for notice does not appear in G.S. 20-29.1, a reading of Chapter 20 of the General Statutes, in which both sections appear, makes it clear that the Legislature intended that notice be given to the licensee when the Commissioner suspends a license under G.S. 20-29.1 as well as when suspension is made under the authority of G.S. 20-16. For instance, G.S. 20-20 provides that whenever any vehicle operator’s license is suspended under the terms of Chapter 20, “the licensee shall surrender to the Department all vehicle operator’s licenses and duplicates thereof issued to him by the Department which are in his possession.” It is difficult to see how the licensee could be called upon to surrender his license because it had been suspended unless he is given notice of the suspension. Further, G.S. 20-25 provides that any person whose license has been suspended shall have a right to file a petition within 30 days thereafter for a hearing on the matter in the superior court. Again, the right to court review of the Department’s action in suspending a license would be futile if the licensee received no notification that the license had been suspended. Therefore we think it clear, and so hold, that in any case in which a license is suspended under the authority of G.S. 20-29.1, the Commissioner of Motor Vehicles is required to notify the licensee of such suspension. That such notice is required is made more apparent when it is realized that even a failure to pass a re-examination conducted under G.S. 20-29.1 does not necessarily result in suspension of the license; the Commissioner may permit the person to retain his license and take such other “action as may be appropriate.” In the present case the examiner on 12 June 1968 permitted the defendant to retain his license even after informing him he had failed the examination.

G.S. 20-48 provides:

“Whenever the Department is authorized or required to give any notice under this chapter or other law regulating the operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the Department. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Department or affidavit of any person over twenty-one years of age, naming the person to whom such notice was given and specifying the time, place, and manner of the giving thereof.”

The North Carolina Supreme Court in Carson v. Godwin, 269 N.C. 744, 153 S.E. 2d 473, expressed dissatisfaction with the use of ordinary mail as a means of notification of Departmental actions with reference to driver’s licenses. In that case, the Court said:

“An open letter to a former address may or may not be delivered, especially if there is a change of address. If the mails are to be employed for the transmission of notice, it would seem that a registered letter or a return receipt showing delivery would be a more complete compliance with the requirements of notice — essential of due process” (Emphasis added.)

Our Supreme Court in Carson v. Godwin, supra, made no reference to G.S. 20-48 and did not rule definitively whether, in view of that statute, notification by ordinary mail would be considered as an acceptable, even if minimal, compliance with the requirements of due process. Nor do we find it necessary to make such a determination in the case now before us. Moreover, in the present case we do not find it necessary to decide, and we do not decide, the question argued in the briefs of the parties as to whether in a prosecution for violation of G.S. 20-28(a) the State must in any event prove that defendant, at the time he drove a motor vehicle on the public highways of the State, had actual knowledge that his license had been suspended. [For decisions of courts of other states interpreting their statutes making it a criminal offense to drive after license is revoked or suspended and holding that actual knowledge of revocation or suspension is not required to sustain a conviction where proper notice by mail has been given, see: State v. Baltromitis, 5 Conn. Cir. 72, 242 A. 2d 99 (certified mail); State v. Garst, 175 Neb. 731, 123 N.W. 2d 638 (registered or certified mail); State v. Wenof, 102 N.J. Super. 370, 246 A. 2d 59 (ordinary mail); State v. Johnson, (Supreme Ct. of N.D.), 139 N.W. 2d 157 (opinion does not specify whether ordinary, certified or registered mail); State v. Hebert, 124 Vt. 377, 205 A. 2d 816 (certified mail).]

Even if it be conceded arguendo that proof of actual knowledge is not required and that constructive notice by ordinary mail is sufficient, there was in the present case no competent evidence that any notice of the license suspension had been given to defendant, by ordinary mail or otherwise, on or prior to the date on which he was charged with having committed the offense. The only evidence which even remotely bears on this question was the notation in the State’s Exhibit 1 of the figures “06 26 68” which appear in the column headed “Mail Date of Suspension Mth Day Yr.” It would require far too many inferences drawn from other inferences to conclude from this evidence that notice had been given to the defendant “by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person (defendant) at Ms address as shown by the records of the Department.” G.S. 20-48.

Defendant has been charged with a criminal offense, punishment for which is a mandatory fine of $200.00 and a possible prison sentence in the discretion of the court for as long as two years. Conviction also rejuires a further suspension of his driver’s license for an additional year. G.S. 20-28(a). Our Legislature went a long way just for the purpose of easing administrative burdens of the Department of Motor Vehicles when, in G.S. 20-48, it authorized notification by ordinary mail. It would be harsh enough to hold, as courts of other states have held in the cases cited supra, that the defendant might lawfully be found guilty of driving while his license was suspended in the absence of evidence that at the time he is alleged to have committed the offense he had actual knowledge that his license was suspended. To hold in addition that a conviction might be sustained in the absence of competent evidence of adequate constructive notice would be unconscionable. There was no such competent evidence in this case, and defendant’s motions for nonsuit should have been sustained.

The judgment appealed from is

Reversed.

Mallard, C.J., and Britt, J., concur.