If a North Carolina court expunges a DWI charge that was dismissed, does the Division of Motor Vehicles have to wipe out the 30-day civil license revocation too?
Plain-English summary
Mike Bryant, the Director of the DMV's Driver License Section, asked the AG to settle a recurring question. When someone is charged with DWI and the criminal court later dismisses the charge, the dismissed driver sometimes asks the court for an expungement order under N.C. Gen. Stat. § 15A-146. The driver then takes the expungement order to DMV and asks DMV to also wipe out the 30-day civil license revocation imposed earlier under N.C. Gen. Stat. § 20-16.5. Bryant wanted to know whether the criminal expungement order legally reached DMV's separate civil record.
Senior Deputy AG Reginald Watkins and Special Deputy AG Hal Askins answered no.
The 30-day revocation and the criminal case are two distinct proceedings. As the North Carolina Supreme Court put it in Joyner v. Garrett, "[e]ach action proceeds independently of the other, and the outcome of one is of no consequence to the other." A drivers license is a "conditional privilege," not a constitutional right, and the General Assembly may set whatever conditions it wants on holding the license.
When a person is charged with an implied consent offense and either refuses chemical analysis or registers an alcohol concentration over the legal limit, N.C. Gen. Stat. § 20-16.5 imposes an automatic 30-day civil revocation. Section 20-16.5(o) states the proceedings under that section "are civil actions." The driver has a 10-day window to challenge the revocation under § 20-16.5(g); if the driver does not challenge, or loses the challenge, the revocation must be served. By the time the driver shows up with an expungement order, the 30-day record at DMV is an accurate record of a revocation already served.
The criminal expungement statute, § 15A-146, lets courts expunge "from all official records any entries relating to [the person's] apprehension or trial." A 30-day civil revocation record relates to the driver's failure to comply with the conditions of license use, not to apprehension or trial on a criminal charge. Strictly construed, as expungement statutes must be, § 15A-146 does not reach DMV's civil revocation record.
The AG reinforced this with the rule from State v. Bellar that courts have inherent power to make their own records speak the truth, but no power to annul or expunge an accurate record of another government agency without statutory authority. DMV must, under § 20-26(a), keep a record of all license revocations. Courts cannot strip those records without legislative direction, and § 15A-146 does not give that direction.
Other state courts addressing similar issues have agreed. Louisiana, Minnesota, Missouri, and Nevada appellate decisions all hold that criminal expungement statutes do not, by themselves, wipe out separate civil drivers license revocation records.
The bottom line: a DWI dismissal and a criminal expungement order do not automatically clear the 30-day civil license revocation. To erase the DMV record, the driver would have had to win a § 20-16.5(g) hearing within the original 10-day window, not collect a later expungement.
Currency note
This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. North Carolina's expungement statutes have been amended many times since 2001, the implied consent statutes in Chapter 20 have been revised, and the General Assembly has periodically expanded or contracted expungement availability. Anyone with a current 30-day revocation question should consult the current text of §§ 15A-145 et seq., § 20-16.5, and § 20-26, plus current North Carolina appellate decisions, before relying on this opinion.
Background and statutory framework
Two proceedings from one set of facts. A DWI arrest can produce both a criminal case (the State prosecuting under Chapter 20 DWI offenses) and a civil license revocation (the DMV acting under § 20-16.5). The civil revocation rests on the magistrate or judge's finding that there were reasonable grounds to believe the driver committed an implied consent offense and that the driver either refused chemical analysis or registered above the legal limit. The criminal case rests on the State proving the elements of the crime beyond a reasonable doubt.
Why dismissals do not retroactively unwind the civil revocation. Joyner v. Garrett (1971) settled the principle that the civil and criminal tracks proceed independently. The General Assembly built that separation into the implied consent statute itself, stating in § 20-16.5(o) that proceedings under § 20-16.5 are civil. The civil revocation does not depend on conviction; it depends on the magistrate's finding. A dismissal of the criminal charge does not invalidate the magistrate's earlier civil finding.
The narrow text of § 15A-146. Section 15A-146(a), as the AG read it in 2001, allowed expungement "from all official records any entries relating to [the person's] apprehension or trial." Expungement is a statutory exception to the general rule that government records cannot be altered, so courts construe expungement statutes strictly. The DMV's revocation record is not an "apprehension or trial" entry; it is an administrative record of a civil disposition.
The inherent-records doctrine. State v. Bellar and the 1996 AG opinion to SBI Director James Coman together stand for the proposition that courts have inherent power to fix their own records, but not to reach into another agency's records without statutory authority. DMV is required by § 20-26(a) to keep a complete record of license revocations. Without an express expungement statute reaching civil revocations, courts have no power to compel DMV to delete an accurate record.
Persuasive out-of-state authority. The AG cited cases from Louisiana, Minnesota, Missouri, and Nevada. The shared logic is that criminal expungement statutes do not, by themselves, extend to administrative civil license actions. Each state's decision rests on its own statute, but the structural argument (criminal proceeding and license action are separate, expungement statutes are strictly construed, agency records may not be erased without authority) is the same.
The narrow path to clearing the civil record. A driver who wanted to keep the 30-day revocation off the DMV record had to use § 20-16.5(g) and request a hearing within 10 days of the effective date of the revocation. If a magistrate or judge ordered the revocation rescinded, the DMV record would reflect that rescission. After that 10-day window closed, and especially after the 30 days had been served, criminal expungement was not a back-door mechanism.
Common questions
Q: What if the magistrate's revocation finding itself was wrong?
A: The opinion did not address collateral attack on a final civil revocation. The statutory route was the § 20-16.5(g) hearing, taken within 10 days. After that, the AG treated the civil record as final.
Q: Did the AG say the DMV could voluntarily wipe out the revocation record?
A: No. DMV was bound by § 20-26(a) to maintain a complete record of all revocations. The AG's analysis rested on DMV's statutory duty to keep, not delete, accurate records.
Q: Did this opinion address whether the criminal expungement also applied to FBI or SBI criminal record systems?
A: Not directly, but it cited the 1996 AG opinion to SBI Director James Coman addressing the SBI's role. The general principle is the same: courts can expunge what statute authorizes, and only what statute authorizes.
Q: Did a later conviction matter to the civil revocation?
A: The opinion noted that the civil revocation and the criminal case proceed independently. A later conviction would not invalidate the already-served 30-day civil revocation, nor would a later acquittal. The 30 days is its own consequence under § 20-16.5.
Citations from the opinion
- N.C. Gen. Stat. § 15A-145
- N.C. Gen. Stat. § 15A-146(a)
- N.C. Gen. Stat. § 20-16.5(b), (e), (g), (o)
- N.C. Gen. Stat. § 20-26(a)
- Joyner v. Garrett, 279 N.C. 226, 182 S.E.2d 553 (1971)
- State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996)
- State v. Bellar, 16 N.C. App. 339, 192 S.E.2d 86 (1972)
- Opinion of the Attorney General to James J. Coman, Director, State Bureau of Investigation, ___ N.C.A.G. ___ (January 3, 1996)
- King v. State, 742 So. 2d 44 (La. Ct. App. 1999)
- Barlow v. Comm'r of Public Safety, 365 N.W.2d 232 (Minn. 1985)
- Director of Revenue v. Klenke, 29 S.W.3d 391 (Mo. Ct. App. 2000)
- State v. Frangul, 867 P.2d 397 (Nev. 1994)
Source
Original opinion text
June 13, 2001
Mr. Mike Bryant Director, Driver License Section
N.C. Division of Motor Vehicles 1100 New Bern Avenue Raleigh, N.C. 27697
Re: Advisory Opinion; Expungement pursuant to N.C. Gen. Stat. § 15A-146 of a 30-day drivers license revocation under N.C. Gen. Stat. § 20-16.5.
Dear Mr. Bryant:
You have requested an advisory opinion concerning whether an order of expungement pursuant to N.C. Gen. Stat. § 15A-146 requires the Division of Motor Vehicles to expunge records of a 30-day drivers license revocation under N.C. Gen. Stat. § 20-16.5 based on the same operation of a vehicle that gave rise to a criminal charge against the driver which is subsequently dismissed. As explained more fully below, N.C. Gen. Stat. § 15A-146, which prescribes procedures for expunction of criminal records, does not apply to records of civil drivers license revocations maintained by the Division of Motor Vehicles.
The same operation of a motor vehicle may give rise to two separate and distinct proceedings, a civil license revocation procedure and a criminal action. However, "[e]ach action proceeds independently of the other, and the outcome of one is of no consequence to the other." Joyner v. Garrett, 279 N.C. 226, 238, 182 S.E.2d 553, 562 (1971). A drivers license "is not a natural or unrestricted right, nor is it a contract or property right in the constitutional sense. It is a conditional privilege, and the General Assembly has full authority to prescribe the conditions upon which licenses may be issued and revoked." Id. at 235, 182 S.E.2d at 559.
The General Assembly, in enacting N.C. Gen. Stat. § 20-16.5, has determined that a person charged with an implied consent offense based on reasonable grounds, who either refuses to submit to chemical analysis or who has an alcohol concentration in excess of the level allowed by law, shall have his driving privileges revoked for a period of 30 days, or more in some instances. See N.C. Gen. Stat. § 20-16.5(b) & (e). The revocation under N.C. Gen. Stat. § 20-16.5 "merely signifies the failure of the driver to adhere to the conditions imposed by the legislature on the driver's license." State v. Oliver, 343 N.C. 202, 210, 470 S.E.2d 16, 21 (1996). Revocations pursuant to N.C. Gen. Stat. § 20-16.5 are separate and distinct from any criminal proceedings and are clearly civil in nature. See N.C. Gen. Stat. § 20-16.5(o) ("Proceedings under this section are civil actions . . .").
Upon a finding by a judicial official that a person is subject to revocation under N.C. Gen. Stat. § 20-16.5, the person must serve the period of revocation unless he successfully challenges the validity of the revocation. The General Assembly has provided in N.C. Gen. Stat. § 20-16.5(g) a specific means for challenging and removing a revocation under N.C. Gen. Stat. § 20-16.5. Pursuant to N.C. Gen. Stat. § 20-16.5(g), a person may request a hearing to challenge the revocation within 10 days of the effective date of the revocation. A magistrate or judge may either uphold the revocation or order it be rescinded. If the revocation is upheld, or if the person does not challenge the revocation, the person must serve the revocation before his or her license will be restored.
Records of the Division only show a 30-day revocation period for persons who failed to challenge the revocation, or lost their challenge after the hearing allowed by statute. Any such record is an accurate record of a revocation actually served by a driver. Further, the Division must keep a record of all license revocations. N.C. Gen. Stat. § 20-26(a). "[W]hile courts have the inherent power and duty to take such action as is necessary to make their records speak the truth, they are without authority to annul or expunge an accurate record, or the records of another agency of government, absent the authority of statute." Opinion of the Attorney General to James J. Coman, Director, State Bureau of Investigation, ___ N.C.A.G. ___ (January 3, 1996) (citing State v. Bellar, 16 N.C. App. 339, 192 S.E.2d 86 (1972)). (A copy of this Opinion is attached for reference.)
N.C. Gen. Stat. §§ 15A-145 and 15A-146 are part of the Criminal Procedure Act. Since these expungement statutes operate as exceptions to the general prohibition against altering records, the rules of statutory construction require they be strictly construed. See ___ N.C.A.G. ___ (January 3, 1996), supra. N.C. Gen. Stat. § 15A-146(a) allows the expungement "from all official records any entries relating to [the person's] apprehension or trial." (emphasis added) Records of the Division concerning civil revocations under N.C. Gen. Stat. § 20-16.5 relate to drivers' failure to adhere to conditions imposed by the legislature, and not to their apprehension or trial on a criminal charge. Therefore, we conclude that N.C. Gen. Stat. § 15A-146, when strictly construed, does not authorize expungement of the record of a civil license revocation. Although there are no reported North Carolina appellate cases directly addressing this issue, the courts of several other states have reached similar conclusions when faced with the same or a similar issue. See, e.g., King v. State, 742 So. 2d 44 (La. Ct. App. 1999) (expungement of criminal arrest record did not affect suspension of drivers license for blood alcohol level above legal limit); Barlow v. Comm'r of Public Safety, 365 N.W.2d 232 (Minn. 1985) (absent express statutory authority, court has no power to expunge license revocation record); Director of Revenue v. Klenke, 29 S.W.3d 391 (Mo. Ct. App. 2000) (statute providing for expungement of all official records of individual's DWI arrest, plea, trial, or conviction did not allow expungement of administrative license revocation); State v. Frangul, 867 P.2d 397 (Nev. 1994) (civil administrative license revocation proceeding is separate and distinct from DUI arrest, and statute providing for expungement of all proceedings related to the arrest held not to allow expungement of civil license revocation).
For the foregoing reasons, we conclude that the criminal expungement statutes do not authorize the expungement of a record of a civil revocation under N.C. Gen. Stat. § 20-16.5.
Very truly yours,
Reginald L. Watkins Senior Deputy Attorney General
Hal F. Askins Special Deputy Attorney General