GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2017

H D

HOUSE BILL DRH40257-TT-2 (01/31)

Short Title: Fail to Obtain DL/Increase Punishment.		(Public)
Sponsors:	Representatives Millis, Destin Hall, Cleveland, and Burr (Primary Sponsors).
Referred to:

A BILL TO BE ENTITLED

AN ACT to increase the punishment for certain offenses of failing to obtain a drivers license before driving a motor vehicle.

The General Assembly of North Carolina enacts:

SECTION 1. G.S. 20‑35 reads as rewritten:

"§ 20‑35. Penalties for violating Article; defense to driving without a license.

(a) Penalty. – Except as otherwise provided in ~~subsection (a1) or (a2)~~ subsections (a1) through (a3) of this section, a violation of this Article is a Class 2 misdemeanor unless a statute in the Article sets a different punishment for the violation. If a statute in this Article sets a different punishment for a violation of the Article, the different punishment applies.

(a1) The following offenses are Class 3 misdemeanors:

~~(1)~~ ~~Failure to obtain a license before driving a motor vehicle, in violation of G.S. 20‑7(a).~~

(2) Failure to comply with license restrictions, in violation of G.S. 20‑7(e).

(3) Permitting a motor vehicle owned by the person to be operated by an unlicensed person, in violation of G.S. 20‑34.

…

(a3) Failure to obtain a license before driving a motor vehicle, in violation of G.S. 20‑7(a), is a Class 3 misdemeanor. In addition to any other penalty authorized by law, a person convicted of a second or subsequent offense shall be fined four hundred dollars ($400.00). If a person is convicted of a third or subsequent offense, the vehicle that was driven by the person at the time of the offense shall become property subject to forfeiture in accordance with the procedure set out in G.S. 20‑28.2, 20‑28.3, 20‑28.4, and 20‑28.5. Nothing in this subsection shall be construed as applying to a person driving a motor vehicle with a revoked or suspended license.

…."

SECTION 2. G.S. 20‑28.2 reads as rewritten:

"§ 20‑28.2. Forfeiture of motor vehicle for impaired driving after impaired driving license ~~revocation; forfeiture for~~ revocation, felony speeding to elude ~~arrest.~~arrest, or certain offenses of failure to obtain a license before driving a motor vehicle.

(a) Meaning of "Impaired Driving License Revocation". – The revocation of a person's drivers license is an impaired driving license revocation if the revocation is pursuant to:

(1) G.S. 20‑13.2, 20‑16(a)(8b), 20‑16.2, 20‑16.5, 20‑17(a)(2), 20‑17(a)(12), or 20‑138.5; or

(2) G.S. 20‑16(a)(7), 20‑17(a)(1), 20‑17(a)(3), 20‑17(a)(9), or 20‑17(a)(11), if the offense involves impaired driving; or

(3) The laws of another state and the offense for which the person's license is revoked prohibits substantially similar conduct which if committed in this State would result in a revocation listed in subdivisions (1) or (2).

(a1) Definitions. – As used in this section and in G.S. 20‑28.3, 20‑28.4, 20‑28.5, 20‑28.7, 20‑28.8, 20‑28.9, 20‑35(a3), 20‑54.1, and 20‑141.5, the following terms mean:

(1) Fair Market Value. – The value of the seized motor vehicle, as determined in accordance with the schedule of values adopted by the Commissioner pursuant to G.S. 105‑187.3.

(1a) Impaired Driving Acknowledgment. – A written document acknowledging that:

a. The motor vehicle was operated by a person charged with an offense involving impaired driving, and:

1. That person's drivers license was revoked as a result of a prior impaired drivers license revocation; or

2. That person did not have a valid drivers license, and did not have liability insurance.

b. If the motor vehicle is again operated by this particular person, and the person is charged with an offense involving impaired driving, then the vehicle is subject to impoundment and forfeiture if (i) the offense occurs while that person's drivers license is revoked, or (ii) the offense occurs while the person has no valid drivers license, and has no liability insurance.

c. A lack of knowledge or consent to the operation will not be a defense in the future, unless the motor vehicle owner has taken all reasonable precautions to prevent the use of the motor vehicle by this particular person and immediately reports, upon discovery, any unauthorized use to the appropriate law enforcement agency.

(2) Innocent Owner. – A motor vehicle owner:

a. Who, if the offense resulting in seizure was an impaired driving offense, did not know and had no reason to know that (i) the defendant's drivers license was revoked, or (ii) that the defendant did not have a valid drivers license, and that the defendant had no liability insurance; or

b. Who, if the offense resulting in seizure was an impaired driving offense, knew that (i) the defendant's drivers license was revoked, or (ii) that the defendant had no valid drivers license, and that the defendant had no liability insurance, but the defendant drove the vehicle without the person's expressed or implied permission, and the owner files a police report for unauthorized use of the motor vehicle and agrees to prosecute the unauthorized operator of the motor vehicle, or who, if the offense resulting in seizure was a felony speeding to elude arrest offense, did not give the defendant express or implied permission to drive the vehicle, and the owner files a police report for unauthorized use of the motor vehicle and agrees to prosecute the unauthorized operator of the motor vehicle; or

c. Whose vehicle was reported stolen; or

d. Repealed by Session Laws 1999‑406, s. 17.

e. Who is (i) a rental car company as defined in G.S. 66‑201(a) and the vehicle was driven by a person who is not listed as an authorized driver on the rental agreement as defined in G.S. 66‑201; or (ii) a rental car company as defined in G.S. 66‑201(a) and the vehicle was driven by a person who is listed as an authorized driver on the rental agreement as defined in G.S. 66‑201 and if the offense resulting in seizure was an impaired driving offense, the rental car company has no actual knowledge of the revocation of the renter's drivers' license at the time the rental agreement is entered, or if the offense resulting in seizure was a felony speeding to elude arrest offense, the rental agreement expressly prohibits use of the vehicle while committing a felony; or

f. Who is in the business of leasing motor vehicles, who holds legal title to the motor vehicle as a lessor at the time of seizure and, if the offense resulting in seizure was an impaired driving offense, who has no actual knowledge of the revocation of the lessee's drivers license at the time the lease is ~~entered.~~entered; or

g. Who, if the offense resulting in seizure was a failure to obtain a license before driving a motor vehicle punishable by G.S. 20‑35(a3), did not know and had no reason to know that the defendant did not have a drivers license; or

h. Who, if the offense resulting in seizure was a failure to obtain a license before driving a motor vehicle punishable by G.S. 20‑35(a3), knew that the defendant did not have a drivers license, but the defendant drove the vehicle without the person's expressed or implied permission, and the owner files a police report for unauthorized operation of the motor vehicle and agrees to prosecute the unauthorized operator of the motor vehicle.

(2a) Insurance Company. – Any insurance company that has coverage on or is otherwise liable for repairs or damages to the motor vehicle at the time of the seizure.

(2b) Insurance Proceeds. – Proceeds paid under an insurance policy for damage to a seized motor vehicle less any payments actually paid to valid lienholders and for towing and storage costs incurred for the motor vehicle after the time the motor vehicle became subject to seizure.

(3) Lienholder. – A person who holds a perfected security interest in a motor vehicle at the time of seizure.

(3a) Motor Vehicle Owner. – A person in whose name a registration card or certificate of title for a motor vehicle is issued at the time of seizure.

(3b) No Drivers License Acknowledgment. – A written document acknowledging that:

a. The motor vehicle was operated by a person charged with an offense of failure to obtain a license before driving a motor vehicle in violation of G.S. 20‑7(a) and that person has at least two prior convictions for the same offense.

b. If the motor vehicle is again operated by this particular person and the person is charged with an offense of failure to obtain a license before driving a motor vehicle in violation of G.S. 20‑7(a), then the vehicle is subject to impoundment and forfeiture.

(4) Order of Forfeiture. – An order by the court which terminates the rights and ownership interest of a motor vehicle owner in a motor vehicle and any insurance proceeds or proceeds of sale in accordance with G.S. 20‑28.2.

(5) Repealed by Session Laws 1998‑182, s. 2.

(6) Registered Owner. – A person in whose name a registration card for a motor vehicle is issued at the time of seizure.

(7) Repealed by Session Laws 1998‑182, s. 2.

(8) Speeding to Elude Arrest Acknowledgment. – A written document acknowledging that:

a. The motor vehicle was operated by a person charged with felony speeding to elude arrest pursuant to G.S. 20‑141.5(b) or (b1).

b. If the motor vehicle is again operated by this particular person and the person is charged with felony speeding to elude arrest pursuant to G.S. 20‑141.5(b) or (b1), then the vehicle is subject to impoundment and forfeiture.

c. A lack of knowledge or consent to the operation will not be a defense in the future unless the motor vehicle owner has taken all reasonable precautions to prevent the use of the motor vehicle by this particular person and immediately reports upon discovery any unauthorized use to the appropriate law enforcement agency.

…

(b3) When a Motor Vehicle Becomes Property Subject to Order of Forfeiture; Failure to Obtain a License Before Driving a Motor Vehicle. – A judge may determine whether the vehicle driven by a person without a license at the time of the offense becomes subject to an order of forfeiture. The determination may be made at any of the following times:

(1) A sentencing hearing for the offense of failure to obtain a license before driving a motor vehicle.

(2) A separate hearing after conviction of the defendant.

(3) A forfeiture hearing held at least 60 days after the defendant failed to appear at the scheduled trial for the underlying offense, and the defendant's order of arrest for failing to appear has not been set aside.

The vehicle shall become subject to an order of forfeiture if the greater weight of the evidence shows that the defendant is guilty of failure to obtain a license before driving a motor vehicle in violation of G.S. 20‑7(a) and has at least two prior convictions of the same offense.

…

(e) Release of Vehicle to Innocent Motor Vehicle Owner. – At a forfeiture hearing, if a nondefendant motor vehicle owner establishes by the greater weight of the evidence that: (i) the motor vehicle was being driven by a person who was not the only motor vehicle owner or had no ownership interest in the motor vehicle at the time of the underlying offense and (ii) the petitioner is an "innocent owner", as defined by this section, a judge shall order the motor vehicle released to that owner, conditioned upon payment of all towing and storage charges incurred as a result of the seizure and impoundment of the motor vehicle.

Release to an innocent owner shall only be ordered upon satisfactory proof of:

(1) The identity of the person as a motor vehicle owner;

(2) The existence of financial responsibility to the extent required by Article 13 of this Chapter or by the laws of the state in which the vehicle is registered; and

(3) Repealed by Session Laws 1998‑182, s. 2, effective December 1, 1998.

(4) The execution ~~of:~~of one of the following:

a. An impaired driving acknowledgment as defined in subdivision (a1)(1a) of this section if the seizure was for an offense involving impaired ~~driving; or~~driving.

b. A speeding to elude arrest acknowledgment as defined in subdivision (a1)(8) of this section if the seizure was for violation of G.S. 20‑141.5(b) or (b1).

c. A no drivers license acknowledgment as defined in subdivision (3b) of subsection (a1) of this section if the seizure was for a violation of G.S. 20‑7(a) punishable pursuant to G.S. 20‑35(a3).

If the nondefendant owner is a lessor, the release shall also be conditioned upon the lessor agreeing not to sell, give, or otherwise transfer possession of the forfeited motor vehicle to the defendant or any person acting on the defendant's behalf. A lessor who refuses to sell, give, or transfer possession of a seized motor vehicle to the defendant or any person acting on the behalf of the defendant shall not be liable for damages arising out of the refusal.

No motor vehicle subject to forfeiture under this section shall be released to a nondefendant motor vehicle owner if the records of the Division indicate the motor vehicle owner had previously signed an impaired driving ~~acknowledgment or~~ acknowledgment, a speeding to elude arrest acknowledgment, or a no drivers license acknowledgment, as required by this section, and the same person was operating the motor vehicle at the time of the current seizure unless the innocent owner shows by the greater weight of the evidence that the motor vehicle owner has taken all reasonable precautions to prevent the use of the motor vehicle by this particular person and immediately reports, upon discovery, any unauthorized use to the appropriate law enforcement agency. A determination by the court at the forfeiture hearing held pursuant to subsection (d) of this section that the petitioner is not an innocent owner is a final judgment and is immediately appealable to the Court of Appeals.

…."

SECTION 3. G.S. 20‑28.3 reads as rewritten:

"§ 20‑28.3. Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving while license revoked or without license and insurance, ~~and~~ for felony speeding to elude ~~arrest.~~arrest, and for certain offenses of failure to obtain a license before driving a motor vehicle.

(a) Motor Vehicles Subject to Seizure for Impaired Driving Offenses. – A motor vehicle that is driven by a person who is charged with an offense involving impaired driving is subject to seizure if:

(1) At the time of the violation, the drivers license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation as defined in G.S. 20‑28.2(a); or

(2) At the time of the violation:

a. The person was driving without a valid drivers license, and

b. The driver was not covered by an automobile liability policy.

For the purposes of this subsection, a person who has a complete defense, pursuant to G.S. 20‑35, to a charge of driving without a drivers license, shall be considered to have had a valid drivers license at the time of the violation.

(a1) Motor Vehicles Subject to Seizure for Felony Speeding to Elude Arrest. – A motor vehicle is subject to seizure if it is driven by a person who is charged with the offense of felony speeding to elude arrest pursuant to G.S. 20‑141.5(b) or (b1).

(a2) Motor Vehicles Subject to Seizure for Certain Offenses of Failure to Obtain a License Before Driving a Motor Vehicle. – A motor vehicle is subject to seizure if it is driven by a person who is charged with a third or subsequent offense of failure to obtain a license before driving a motor vehicle that is punishable pursuant to G.S. 20‑35(a3).

…

(e) Release of Motor Vehicle Pending Trial. – A motor vehicle owner, other than the driver at the time of the underlying offense resulting in the seizure, may apply to the clerk of superior court in the county where the charges are pending for pretrial release of the motor vehicle.

The clerk shall release the motor vehicle to a nondefendant motor vehicle owner conditioned upon payment of all towing and storage charges incurred as a result of seizure and impoundment of the motor vehicle under the following conditions:

(1) The motor vehicle has been seized for not less than 24 hours;

(2) Repealed by Session Laws 1998‑182, s. 3, effective December 1, 1998.

(3) A bond in an amount equal to the fair market value of the motor vehicle as defined by G.S. 20‑28.2 has been executed and is secured by a cash deposit in the full amount of the bond, by a recordable deed of trust to real property in the full amount of the bond, by a bail bond under G.S. 58‑71‑1(2), or by at least one solvent surety, payable to the county school fund and conditioned on return of the motor vehicle, in substantially the same condition as it was at the time of seizure and without any new or additional liens or encumbrances, on the day of any hearing scheduled and noticed by the district attorney under G.S. 20‑28.2(c), unless the motor vehicle has been permanently released;

(4) Execution of ~~either:~~one of the following:

a. An impaired driving acknowledgment as described in G.S. 20‑28.2(a1)(1a) if the seizure was for an offense involving impaired ~~driving; or~~driving.

b. A speeding to elude arrest acknowledgment as defined in G.S. 20‑28.2(a1)(8) if the seizure was for violation of G.S. 20‑141.5(b) or (b1).

c. A no drivers license acknowledgment as defined in G.S. 20‑28.2(a1)(3b) if the seizure was for a violation of G.S. 20‑7(a) punishable pursuant to G.S. 20‑35(a3).

(5) A check of the records of the Division indicates that the requesting motor vehicle owner has not previously executed an acknowledgment naming the operator of the seized motor vehicle; and

(6) A bond posted to secure the release of this motor vehicle under this subsection has not been previously ordered forfeited under G.S. 20‑28.5.

In the event a nondefendant motor vehicle owner who obtains temporary possession of a seized motor vehicle pursuant to this subsection does not return the motor vehicle on the day of the forfeiture hearing as noticed by the district attorney under G.S. 20‑28.2(c) or otherwise violates a condition of pretrial release of the seized motor vehicle as set forth in this subsection, the bond posted shall be ordered forfeited and an order of seizure shall be issued by the court. Additionally, a nondefendant motor vehicle owner or lienholder who willfully violates any condition of pretrial release may be held in civil or criminal contempt.

…

(e2) Pretrial Release of Motor Vehicle to Defendant Owner. –

(1) If the seizure was for an offense involving impaired driving, a defendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the defendant's license was not revoked pursuant to an impaired driving license revocation as defined in G.S. 20‑28.2(a). The clerk shall schedule a hearing before a judge of the division in which the underlying criminal charge is pending for a hearing to be held within 10 business days or as soon thereafter as may be feasible. Notice of the hearing shall be given to the defendant, the district attorney, and the attorney for the county board of education. The clerk shall forward a copy of the petition to the district attorney for the district attorney's review. If, based on available information, the district attorney determines that the defendant's motor vehicle is not subject to forfeiture, the district attorney may note the State's consent to the release of the motor vehicle on the petition and return the petition to the clerk of court who shall enter an order releasing the motor vehicle to the defendant upon payment of all towing and storage charges incurred as a result of the seizure and impoundment of the motor vehicle, subject to the satisfactory proof of the identity of the defendant as a motor vehicle owner and the existence of financial responsibility to the extent required by Article 13 of this Chapter, and no hearing shall be held. The clerk shall send a copy of the order of release to the attorney for the county board of education. At any pretrial hearing conducted pursuant to this subdivision, the court is not required to determine the issue of the underlying offense of impaired driving only the existence of a prior drivers license revocation as an impaired driving license revocation. Accordingly, the State shall not be required to prove the underlying offense of impaired driving. An order issued under this subdivision finding that the defendant failed to establish that the defendant's license was not revoked pursuant to an impaired driving license revocation as defined in G.S. 20‑28.2(a) may be reconsidered by the court as part of the forfeiture hearing conducted pursuant to G.S. 20‑28.2(d).

(2) If the seizure was for a felony speeding to elude arrest offense, a defendant motor vehicle owner may apply to the clerk of superior court in the county where the charges are pending for pretrial release of the motor vehicle. The clerk shall release the motor vehicle to the defendant motor vehicle owner conditioned upon payment of all towing and storage charges incurred as a result of seizure and impoundment of the motor vehicle under the following conditions:

a. The motor vehicle has been seized for not less than 24 hours;

b. A bond in an amount equal to the fair market value of the motor vehicle as defined by G.S. 20‑28.2 has been executed and is secured by a cash deposit in the full amount of the bond, by a recordable deed of trust to real property in the full amount of the bond, by a bail bond under G.S. 58‑71‑1(2), or by at least one solvent surety, payable to the county school fund and conditioned on return of the motor vehicle, in substantially the same condition as it was at the time of seizure and without any new or additional liens or encumbrances, on the day of any hearing scheduled and noticed by the district attorney under G.S. 20‑28.2(c), unless the motor vehicle has been permanently released;

c. A bond posted to secure the release of this motor vehicle under this subdivision has not been previously ordered forfeited under G.S. 20‑28.5.

In the event a defendant motor vehicle owner who obtains temporary possession of a seized motor vehicle pursuant to this subdivision does not return the motor vehicle on the day of the forfeiture hearing as noticed by the district attorney under G.S. 20‑28.2(c) or otherwise violates a condition of pretrial release of the seized motor vehicle as set forth in this subdivision, the bond posted shall be ordered forfeited, and an order of seizure shall be issued by the court. Additionally, a defendant motor vehicle owner who willfully violates any condition of pretrial release may be held in civil or criminal contempt.

(3) If the seizure was for an offense of failure to obtain a license before operating a motor vehicle, a defendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the defendant does not have at least two prior convictions of failure to obtain a license before operating a motor vehicle. The clerk shall schedule a hearing before a judge of the division in which the underlying criminal charge is pending for a hearing to be held within 10 business days or as soon thereafter as may be feasible. Notice of the hearing shall be given to the defendant, the district attorney, and the attorney for the county board of education. The clerk shall forward a copy of the petition to the district attorney for the district attorney's review. If, based on available information, the district attorney determines that the defendant's motor vehicle is not subject to forfeiture, the district attorney may note the State's consent to the release of the motor vehicle on the petition and return the petition to the clerk of court who shall enter an order releasing the motor vehicle to the defendant upon payment of all towing and storage charges incurred as a result of the seizure and impoundment of the motor vehicle, subject to the satisfactory proof of the identity of the defendant as a motor vehicle owner and the existence of financial responsibility to the extent required by Article 13 of this Chapter, and no hearing shall be held. The clerk shall send a copy of the order of release to the attorney for the county board of education. At any pretrial hearing conducted pursuant to this subdivision, the court is not required to determine the issue of the underlying offense of failure to obtain a license before driving a motor vehicle, only the existence of two or more prior convictions of failure to obtain a license before operating a motor vehicle. Accordingly, the State shall not be required to prove the underlying offense of failure to obtain a license before operating a motor vehicle. An order issued under this subdivision finding that the defendant failed to establish that the defendant did not have two or more prior convictions for failure to obtain a license before operating a motor vehicle may be reconsidered by the court as part of the forfeiture hearing conducted pursuant to G.S. 20‑28.2(d).

…."

SECTION 4. G.S. 20‑28.8 reads as rewritten:

"§ 20‑28.8. Reports to the Division.

In any case in which a vehicle has been seized pursuant to G.S. 20‑28.3, in addition to any other information that must be reported pursuant to this Chapter, the clerk of superior court shall report to the Division by electronic means the execution of an impaired driving acknowledgment as defined in G.S. 20‑28.2(a1)(1a), a speeding to elude arrest acknowledgment as defined in G.S. 20‑28.2(a1)(8), a no drivers license acknowledgment as defined in G.S. 20‑28.2(a1)(3b), the entry of an order of forfeiture as defined in G.S. 20‑28.2(a1)(4), and the entry of an order of release as defined in G.S. 20‑28.3 and G.S. 20‑28.4. Each report shall include any of the following information that has not previously been reported to the Division in the case: the name, address, and drivers license number of the defendant; the name, address, and drivers license number of the nondefendant motor vehicle owner, if known; and the make, model, year, vehicle identification number, state of registration, and vehicle registration plate number of the seized vehicle, if known."

SECTION 5. G.S. 20‑54.1 reads as rewritten:

"§ 20‑54.1. Forfeiture of right of registration.

(a) Upon receipt of notice of conviction of a violation of an offense involving impaired driving while the person's license is revoked as a result of a prior impaired driving license revocation as defined in G.S. 20‑28.2, the Division shall revoke the registration of all motor vehicles registered in the convicted person's name and shall not register a motor vehicle in the convicted person's name until the convicted person's license is restored, except in such cases to abide by the ignition interlock installation requirements of G.S. 20‑17.8. Upon receipt of notice of revocation of registration from the Division, the convicted person shall surrender the registration on all motor vehicles registered in the convicted person's name to the Division within 10 days of the date of the notice.

(a1) Upon receipt of notice of conviction of a felony speeding to elude arrest offense under G.S. 20‑141.5(b) or (b1), the Division shall revoke the registration of all motor vehicles registered in the convicted person's name and shall not register a motor vehicle in the convicted person's name until the convicted person's license is restored. Upon receipt of notice of revocation of registration from the Division, the convicted person shall surrender the registration on all motor vehicles registered in the convicted person's name to the Division within 10 days of the date of the notice.

(a2) Upon receipt of notice of conviction of failure to obtain a license before driving a motor vehicle in violation of G.S. 20‑7(a) and notice the convicted person was punished pursuant to G.S. 20‑35(a3), the Division shall revoke the registration of all motor vehicles registered in the convicted person's name and shall not register a motor vehicle in the convicted person's name until the convicted person has obtained a valid license. Upon receipt of notice of revocation of registration from the Division, the convicted person shall surrender the registration on all motor vehicles registered in the convicted person's name to the Division within 10 days of the date of the notice.

(b) Upon receipt of a notice of conviction under subsection ~~(a) or (a1)~~ (a), (a1), or (a2) of this section, the Division shall revoke the registration of the motor vehicle seized, and the owner shall not be allowed to register the motor vehicle seized until the convicted operator's drivers license has been restored. The Division shall not revoke the registration of the owner of the seized motor vehicle if the owner is determined to be an innocent owner. The Division shall revoke the owner's registration only after the owner is given an opportunity for a hearing to demonstrate that the owner is an innocent owner as defined in G.S. 20‑28.2. Upon receipt of notice of revocation of registration from the Division, the owner shall surrender the registration on the motor vehicle seized to the Division within 10 days of the date of the notice."

SECTION 6. This act becomes effective December 1, 2017, and applies to offenses committed on or after that date.