Carmichael v. Scheidt , 249 N.C. 472 ( 1959 )

106 S.E.2d 685 (1959) 249 N.C. 472

Frank Wilson CARMICHAEL
v.
Edward SCHEIDT, Commissioner of Motor Vehicles of North Carolina.

No. 742.

Supreme Court of North Carolina.

January 28, 1959.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Lucius W. Pullen, for Department of Motor Vehicles, respondent.

Joe M. Cox, Laurinburg, for petitioner.

DENNY, Justice.

The question presented on this appeal is whether or not the court below committed error in sustaining the respondent's demurrer ore tenus.

This Court held in In re Wright, 228 N. C. 301, 45 S.E.2d 370 and in same case on rehearing, 228 N.C. 584, 46 S.E.2d 696, that a petitioner is entitled to a review whenever the suspension, cancelation, or revocation is made in the discretion of the Department, whether under G.S. §§ 20-16, 20-23, or any other provision of the statute.

It 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's or chauffeur's conviction for "driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug." This mandatory provision applies only to a conviction in a North Carolina court.

G.S. § 20-23 provides: "The Department is authorized to suspend or revoke the license of any resident of this State upon receiving notice of the conviction of such person in another state of any offense therein which, if committed in this State, would be grounds for the suspension or revocation of the license of an operator or chauffeur."

The Department was clearly within its rights when it permanently revoked the license of the petitioner based on the information before it with respect to the Laurinburg conviction, the Virginia conviction, and the Union County conviction. In re Wright, 228 N.C. 301, 45 S.E.2d 370. However, it must be kept in mind that the Department, under the provisions of G.S. § 20-23, is merely authorized, not directed, to suspend or revoke the license of any resident of this State upon receiving notice of the conviction of such person in another state of any offense therein which, if committed in this State, would be grounds for the suspension or revocation of the license of an operator or chauffeur.

The fact that the Department in the exercise of its discretion accepted the certification of the Virginia conviction at its face value, did not foreclose the petitioner's right to review as provided in G.S. § 20-25. In re Wright, supra, on rehearing. In other words, our General Assembly has never made it mandatory on the Department to suspend or revoke the license of a resident of this State based on the conviction of such person in another state of any offense therein which, if committed in this State, would make the revocation mandatory.

The petitioner has the right to show, if he can, that the Virginia proceedings were irregular, invalid, and insufficient to support the reported conviction. If he succeeds in doing so, he would be entitled to have the permanent revocation canceled and the revocation limited to a period of three years, as provided in G.S. § 20-19 (d), unless, at that time, it should be determined that the petitioner had been convicted three times for driving while under the influence of intoxicating liquor or a narcotic drug, exclusive of the Virginia conviction.

If upon review in the Superior Court it is determined that the reported Virginia conviction is valid, the order of the Department should be affirmed. Barnhill, J., later C. J., in In re Wright, supra, on rehearing, said [228 N.C. 584, 46 S.E.2d 699]: "A license to operate a motor vehicle is a privilege in the nature of a right of which the licensee may not be deprived save in the manner and upon the conditions prescribed by statute. These, under express provisions of the Act, include full de novo review by a Superior Court judge, at the election of the licensee, in all cases except where the suspension or revocation is mandatory. State v. McDaniels, 219 N.C. 763, 14 S.E.2d 793."

It is mandatory under the provisions of G.S. § 20-17(2) for the Department to revoke the license of a citizen of this State who has been convicted in a court of competent jurisdiction in North Carolina, and whose conviction is final, of driving a motor vehicle upon a public highway or street in this State while under the influence of intoxicating liquor or a narcotic drug. In such case the period of revocation shall be as provided in G.S. § 20-19.

There is no right of judicial review when the revocation is mandatory pursuant to the provisions of G.S. § 20-17. Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259.

There is no merit in the petitioner's contention that if the Virginia conviction is held to be valid that the date of the permanent revocation of his license should be from 29 August 1956 instead of 29 October 1956. A revocation based on a second offense for driving while under the influence of intoxicating liquor or a narcotic drug must be for a period of three years, and the effective date of the revocation for such period should not begin prior to the date of the second conviction. Likewise, when a license is permanently revoked, the effective date of such revocation should not be earlier than the date of the conviction for the third offense.

In our opinion the court below committed error in sustaining the respondent's demurrer ore tenus, and we so hold. Hence, the ruling is

Reversed.