NORTH CAROLINA                                                            IN THE GENERAL COURT OF JUSTICE

____________ COUNTY                                            SUPERIOR COURT DIVISION

                                                                                    FILE NUMBER:       



                        vs.                                                       MOTION TO DISMISS

                                                                                   (DOUBLE JEOPARDY)



            The defendant, by and through undersigned counsel and pursuant to N.C.G.S. 15A-954, hereby moves the Court to dismiss the charge now pending in the above-referenced matter on the grounds that the continued prosecution of this matter constitutes “Double Jeopardy” in violation of the “Double Jeopardy Clause” of the Fifth Amendment to the Constitution of the United States and the “Law of the Land” Clause in Article 1, Section 19, of the North Carolina Constitution. 

In support of this Motion, the defendant would show unto the Court the following:

  • The defendant was charged with driving while impaired on xxx.
  • The defendant’s DWI did not involve a commercial vehicle for which a CDL would be necessary.  Instead, this defendant is accused in this case of driving a 2001 Ford pickup truck while impaired.
  • In connection with his DWI arrest, the defendant was given a purported chemical analysis test. A copy of the rights form (per N.C.G.s. 20-16.2(a)) that was read to and signed by the defendant in connection with that test is attached hereto is Exhibit 1.  Those rights included rights relating to a “one-year refusal revocation” and a “thirty-day revocation” if the defendant refused or registered .08 or more on the test.  Those rights did not include any notice to the defendant that he would be disqualified from having a Commercial Drivers License for one year if the defendant refused or registered a .08 or more on the chemical analysis test.
  • The defendant registered a .17 on that purported chemical analysis test.
  • As a result of the defendant’s chemical analysis test results, the Magistrate entered a Revocation Order, revoking the defendant’s driving privilege for 30 days.  A copy of that Revocation Order is attached hereto as Exhibit 2.  The Revocation Order did not include any notice to or provision that the defendant would, in addition to the 30 day revocation, be disqualified from having a Commercial Drivers License for one year.
  • The defendant then served his 30 day driving privilege revocation as ordered.
  • On April 9, 2010, almost 11 months after the defendant’s arrest, after the defendant’s initial 30 day revocation ended, and while the defendant’s DWI case was still pending, N.C. DMV sent to the defendant indicating that DMV, for the State of North Carolina, was disqualifying the defendant’s CDL for one year based solely upon the fact of the entry of the initial 30-day Revocation Order entered at the time of the defendant’s DWI arrest on May 23, 2009, which was entered as a result of the defendant registering above .08 on the chemical analysis.  DMV’s letter also indicated that the defendant was not entitled to a hearing on this revocation.  A copy of DMV’s letter is attached hereto as Exhibit 3.
  • There is no type of limited driving privilege available for a CDL.  As a result, DMV’s disqualification of the defendant’s CDL was an absolute revocation.
  • As a result of the State’s action through DMV, the defendant’s CDL has been revoked and disqualified since April 19, 2011.
  • The defendant’s privilege to possess a CDL is a protected property right.  The State must provide due process before lawfully taking the defendant’s protected property.  In this case, the State afforded the defendant no warning, no due process, and no remedy or relief related to its revocation of the defendant’s CDL.
  • Further, the State’s one-year revocation and disqualification of the defendant’s CDL, after the defendant already completed a 30 day revocation following his arrest, and before the defendant was convicted of this DWI, is punitive and constitutes a punishment against the defendant.
  • Further, given that this alleged DWI does not involve a commercial vehicle for which a CDL is required, the State’s one-year revocation and disqualification of the defendant’s CDL does not serve any legitimate remedial purpose.
  • Despite having already punished the defendant in this matter, as set forth above, the State now intends to prosecute, convict and have the Court further punish the defendant for driving while impaired in this case.  This Court should dismiss these pending charges, as “Double Jeopardy” prohibits the State from prosecuting the defendant further.  See State v. Gardner, 340 S.E.2d 701, 315 N.C. 444 (1986) citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

            This the _________ day of ________, 2011.


                                                                                    TEAGUE & GLOVER, P.A.

                                                                                    Attorneys at Law

                                                                                    408 E. Colonial Avenue

                                                                                    P.O. Box 785

                                                                                    Elizabeth City, N.C.  27907-0785

                                                                                    Telephone:       (252) 335-0878

                                                                                    Facsimile:        (252) 335-1373

                                                                                    By: ________________________________

                                                                                                            Danny Glover, Jr.

                                                                                                            Attorney for the defendant


            This is to certify that the undersigned this date served this document upon all parties to this cause by mailing it to ___________________________, Assistant District Attorney at 202 E. Colonial Avenue, Elizabeth City, North Carolina.

            This the ______ day of ________, 2011.


                                                                                    By: _________________________________

                                                                                                            Danny Glover, Jr.