Failure to Appear/Failure to Comply

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There is a direct link between not appearing in court for a traffic violation or not paying your court costs and fines an your privilege to drive a motor vehicle.  The following article is a very good explanation of the connection.  However, it does not state that if you have a failure to appear and your case is dismissed, you not have to pay the $200 FTA fee but you will have to pay the $50 reinstatement fee to the DMV if your license has been suspended.  Please read the following article which comes from the North Carolina School of Government Criminal Law Blog.

The Link Between License Revocations and Failures to Appear

September 19th, 2011

By Shea Denning

In 1985, the General Assembly reclassified certain minor traffic violations as a new type of non-criminal violation, termed an infraction. S.L. 1985-764. Though the legislation provided that infractions were to be processed in much the same manner as misdemeanor criminal charges (they were to be calendared and prosecuted by the district attorney, proved beyond a reasonable doubt, and persons found responsible for infractions in district court were afforded the right to a de novo jury trial in superior court), their non-criminal nature distinguished them from criminal offenses in a few critical ways. A law enforcement officer could not arrest a person for an infraction. A court could not issue an order for arrest if a person served with a citation for an infraction failed to appear in court. Infractions were punishable by a fine and costs only; no active or probationary sentence could be imposed.
Because persons charged with infractions could not be arrested, and persons found responsible for infractions could not be placed on probation or ordered to jail, the legislature recognized the need for other measures commensurate with the petty nature of such offenses to ensure that persons charged with infractions appeared in court and that those found responsible complied with court-ordered sanctions.  See Report of the Courts Commission to the North Carolina General Assembly 15, 16 (1985). Appearances for infractions and compliance with court-ordered sanctions were thus tied to a person’s ability to remain licensed to drive. Failure to appear in court or comply with sanctions triggered an administrative license revocation. As the Courts Commission pointed out, the new “revocation procedure basically treats residents the same for in-state violations as they are treated when they are ticketed outside the state.” Id.; see also G.S. 20-4.20(b) (requiring DMV to suspend a person’s North Carolina driver’s license when the licensing authority of a reciprocating state reports that the person has failed to comply with a citation issued in that state). Today, the administrative license revocation provisions enacted in 1985 are codified, as amended, at G.S. 20-24.1 and G.S. 20-24.2. Here is what they currently provide:
If a person charged with a motor vehicle offense (be it a felony, misdemeanor or infraction) fails to appear on his or her court date and does not appear or “pay off” a citation for a waivable offense within 20 days thereafter, the clerk of court must report this failure to appear to DMV. G.S. 20-24.2. (The failure to appear also triggers imposition of a $200 court cost pursuant to G.S. 7A-304(a)(6).) The clerk must likewise report the failure of a person “charged with a motor vehicle offense” to pay a fine, penalty or costs within 20 days of the date specified in the court’s judgment. G.S. 20-24.2. Though this provision does not so specify, presumably it applies only when the conviction or adjudication of responsibility—in addition to the charge—is for a Chapter 20 motor vehicle offense. (A related provision of G.S. 7A-304(a)(6)—not limited to motor vehicle offenses—imposes court costs of $50 upon a defendant who fails to pay a fine, penalty, or costs within 20 days of the date specified in the court’s judgment.)
When it receives notice from the clerk pursuant to G.S. 20-24.2, DMV must mail or personally deliver to the person an order revoking his or her driver’s license, effective on the sixtieth day after the order is mailed or delivered. G.S. 20-24.1(b). If the person resolves the matter before the effective date of the revocation, the revocation never becomes effective and any entries on the person’s driving record related to the revocation are deleted. To resolve the matter, the person must do one of four things, depending upon the circumstances giving rise to the court’s report to DMV: (1) dispose of the charge in the trial division in which he or she failed to appear when the case was last called for trial or hearing; (2) demonstrate to the court that he or she is not the person charged with the offense; (3) pay the penalty, fine, or costs ordered by the court; or (4) demonstrate that his or her failure to pay the penalty, fine, or costs was not willful and that he or she is making a good faith effort to pay or that the penalty, fine or costs should be remitted.
Once the person has resolved the matter in court, the court so notifies DMV. G.S. 20-24.2. The clerk must provide the person upon request with a copy of the notice sent to DMV.  If the person resolves the matter before the effective date of the revocation, the notice must indicate that the person is eligible to drive if he or she is otherwise validly licensed. If the revocation order becomes effective before the charge is resolved, the person’s license remains revoked until he or she resolves the matter by completing the necessary act of the four listed above and pays a $50 license restoration fee. G.S. 20-24.2.
If a clerk sends an order to DMV “through clerical mistake or other inadvertence,” the clerk’s office that sent the report of noncompliance must withdraw the report and send notice to DMV, which corrects its records. G.S. 20-24.2(b). When this occurs, the person is able to have his or her driver’s license reinstated without paying the restoration fee. In contrast, if the failure to appear is stricken but no notice is sent to DMV withdrawing the G.S. 20-24.2 report, the person must pay the $50 restoration fee to regain his or her driver’s license. A related provision in G.S. 7A-304(a)(6) requires the court to waive the $200 fee for failing to appear if the person demonstrates that he or she failed to appear because of an error or omission of a judicial official, a prosecutor or a law enforcement officer. (Courts also have discretionary authority to waive such costs upon upon a written finding of just cause. See G.S. 7A-304(a).)
I’d be curious to hear from readers who litigate motor vehicle charges as to whether both types of relief (withdrawal of the report and waiver of the $200 fee) typically are granted simultaneously or whether courts frequently determine that relief under one provision, but not the other, is warranted.

Prayer for Judgment Continued

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Every day, whether in court or in the office on the phone, I hear a very wrong explanation of what a Prayer for Judgment is, how it affect your driving and insurance records and what happens if you receive another ticket in the next 3 years.  I have decided it is time to write a lengthy blog entry to explain the law and how it works.

A prayer for judgment (PJC) is not a judgment.  Pursuant to NCCS 15A01-1(4a), Prayer for Judgment Continued upon payment of cost, without more, does not constitute the entry of Judgment. 

Here is what I hear:

"If you get another ticket within 3 years of receiving a Prayer for Judgment, the old ticket will reappear on your record."  This is not accurate.  The second ticket within a 3 year period will not automatically cause the old ticket to appear on your record absent a judge setting that requirement on your first ticket and the District Attorney filing a motion to have the original judgment reinstated.

"Just get a Prayer for Judgment.  Then the ticket will not go on your record and you will not have to pay anything."  First, there are limitations on the number of Prayer for Judgment's available to a person.  For insurance purposes, each policy gets one Prayer for Judgment every three (3) years.  This includes everyone on the policy.  However, for driving record purposes, each person gets two (2) Pray for Judment's every five (5) years.  While using the second Prayer for Judgment will result in taking the insurance points from both tickets, it could save you from losing your license.  In addition, even with a Prayer for Judgment, you are still required to pay the court costs.


Also, there are several charges that cannot be disposed of with a Prayer for Judgment.  One for example is Passing a Stopped School Bus.  NCGS 20-217(e) states:  Except as provided in subsection (g) of this section, any person violating this section shall be guilty of a Class 1 misdemeanor and shall pay a minimum fine of five hundred dollars ($500.00). A person who violates subsection (a) of this section shall not receive a prayer for judgment continued under any circumstances.

These are just a few misconceptions about a Prayer for Judgment.  As a result, you should always consult an attorney before requesting one from the court. Keep in mind that even a lot of attorneys do not understand this correctly.  I just read a blog by an attorney who was just wrong about how a prayer for Judgment works.  As I looked at his web site more, I discovered that he mostly practices "beer law".  I will admit I do not know what beer law is, but I do know that it is not traffic law.  I would advise anyone to limit who they take their advise from on traffic tickets to someone who spends most of his time dealing with traffic tickets, not someone who does a few tickets on the side because they can not get the major portion of their practice to be profitable.

Traffic Control Device Violation

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In North Carolina, it is an infraction punishable by court costs and a fine for going through private property to avoid a traffic control devise.  This offense carries two, (2) driving points and one (1) insurance point  In counties such as Wake County, the district attorney will not dismiss the charge or reduce it to a non moving violation.  As a result, you must use a Prayer for Judgment to avoid the the insurance point.  If you do not have a Prayer for Judgment available to you, someone else on your policy has used one in the past 3 years, you will end up with an insurance increase.

While a lot of people think this offense applies only in gas stations, it applies to all private property.

The question now is if it apples to public property.  Under the statute, you may not even go through public property, such as a park, to avoid a traffic control devise.  See the statute below for more.

§ 20-158.  Vehicle control signs and signals.

(a)        The Department of Transportation, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to control vehicles:

(1)        At intersections, by erecting or installing stop signs requiring vehicles to come to a complete stop at the entrance to that portion of the intersection designated as the main traveled or through highway. Stop signs may also be erected at three or more entrances to an intersection.

(2)        At appropriate places other than intersections, by erecting or installing stop signs requiring vehicles to come to a complete stop.

(3)        At intersections and other appropriate places, by erecting or installing steady-beam traffic signals and other traffic control devices, signs, or signals. All steady-beam traffic signals emitting alternate red and green lights shall be arranged so that the red light in vertical-arranged signal faces shall appear above, and in horizontal-arranged signal faces shall appear to the left of all yellow and green lights.

(4)        At intersections and other appropriate places, by erecting or installing flashing red or yellow lights.

(b)        Control of Vehicles at Intersections. -

(1)        When a stop sign has been erected or installed at an intersection, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto and yield the right-of-way to vehicles operating on the designated main-traveled or through highway. When stop signs have been erected at three or more entrances to an intersection, the driver, after stopping in obedience thereto, may proceed with caution.

(2)       a.         When a traffic signal is emitting a steady red circular light controlling traffic approaching an intersection, an approaching vehicle facing the red light shall come to a stop and shall not enter the intersection. After coming to a complete stop and unless prohibited by an appropriate sign, that approaching vehicle may make a right turn.

b.         Any vehicle that turns right under this subdivision shall yield the right-of-way to:

1.         Other traffic and pedestrians using the intersection; and

2.         Pedestrians who are moving towards the intersection, who are in reasonably close proximity to the intersection, and who are preparing to cross in front of the traffic that is required to stop at the red light.

c.         Failure to yield to a pedestrian under this subdivision shall be an infraction, and the court may assess a penalty of not more than five hundred dollars ($500.00) and not less than one hundred dollars ($100.00).

d.         The Department of Transportation shall collect data regarding the number of individuals who are found responsible for violations of sub-subdivision b. of this subdivision and the number of pedestrians who are involved in accidents at intersections because of a driver's failure to yield the right-of-way while turning right at a red light. The data shall include information regarding the number of disabled pedestrians, including individuals with visual or mobility-related disabilities, who are involved in right turn on red accidents. The Department shall report the data annually to the Joint Legislative Transportation Oversight Committee beginning January 1, 2006.

(2a)      When a traffic signal is emitting a steady yellow circular light on a traffic signal controlling traffic approaching an intersection or a steady yellow arrow light on a traffic signal controlling traffic turning at an intersection, vehicles facing the yellow light are warned that the related green light is being terminated or a red light will be immediately forthcoming. When the traffic signal is emitting a steady green light, vehicles may proceed with due care through the intersection subject to the rights of pedestrians and other vehicles as may otherwise be provided by law.

(3)        When a flashing red light has been erected or installed at an intersection, approaching vehicles facing the red light shall stop and yield the right-of-way to vehicles in or approaching the intersection. The right to proceed shall be subject to the rules applicable to making a stop at a stop sign.

(4)        When a flashing yellow light has been erected or installed at an intersection, approaching vehicles facing the yellow flashing light may proceed through the intersection with caution, yielding the right-of-way to vehicles in or approaching the intersection.

(5)        When a stop sign, traffic signal, flashing light, or other traffic-control device authorized by subsection (a) of this section requires a vehicle to stop at an intersection, the driver shall stop (i) at an appropriately marked stop line, or if none, (ii) before entering a marked crosswalk, or if none, (iii) before entering the intersection at the point nearest the intersecting street where the driver has a view of approaching traffic on the intersecting street.

(6)        When a traffic signal is not illuminated due to a power outage or other malfunction, vehicles shall approach the intersection and proceed through the intersection as though such intersection is controlled by a stop sign on all approaches to the intersection. This subdivision shall not apply if the movement of traffic at the intersection is being directed by a law enforcement officer, another authorized person, or another type of traffic control device.

(c)        Control of Vehicles at Places other than Intersections. -

(1)        When a stop sign has been erected or installed at a place other than an intersection, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto and yield the right-of-way to pedestrians and other vehicles.

(2)        When a traffic signal has been erected or installed at a place other than an intersection, and is emitting a steady red light, vehicles facing the red light shall come to a complete stop. When the traffic signal is emitting a steady yellow light, vehicles facing the light shall be warned that a red light will be immediately forthcoming and that vehicles may not proceed through such a red light. When the traffic signal is emitting a steady green light, vehicles may proceed subject to the rights of pedestrians and other vehicles as may otherwise be provided by law.

(3)        When a flashing red light has been erected or installed at a place other than an intersection, approaching vehicles facing the light shall stop and yield the right-of-way to pedestrians or other vehicles.

(4)        When a flashing yellow light has been erected or installed at a place other than an intersection, approaching vehicles facing the light may proceed with caution, yielding the right-of-way to pedestrians and other vehicles.

(5)        When a traffic signal, stop sign, or other traffic control device authorized by subsection (a) requires a vehicle to stop at a place other than an intersection, the driver shall stop at an appropriately marked stop line, or if none, before entering a marked crosswalk, or if none, before proceeding past the traffic control device.

(d)       No failure to stop as required by the provisions of this section shall be considered negligence or contributory negligence per se in any action at law for injury to person or property, but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether a party was guilty of negligence or contributory negligence.

(e)        Defense. - It shall be a defense to a violation of sub-subdivision (b)(2)a. of this section if the operator of a motorcycle, as defined in G.S. 20-4.01(27)d., shows all of the following:

(1)        The operator brought the motorcycle to a complete stop at the intersection or stop bar where a steady red light was being emitted in the direction of the operator.

(2)        The intersection is controlled by a vehicle actuated traffic signal using an inductive loop to activate the traffic signal.

(3)        No other vehicle that was entitled to have the right-of-way under applicable law was sitting at, traveling through, or approaching the intersection.

(4)        No pedestrians were attempting to cross at or near the intersection.

(5)        The motorcycle operator who received the citation waited a minimum of three minutes at the intersection or stop bar where the steady red light was being emitted in the direction of the operator before entering the intersection. (1937, c. 407, s. 120; 1941, c. 83; 1949, c. 583, s. 2; 1955, c. 384, s. 1; c. 913, s. 7; 1957, c. 65, s. 11; 1973, c. 507, s. 5; c. 1191; c. 1330, s. 22; 1975, c. 1; 1977, c. 464, s. 34; 1979, c. 298, s. 1; 1989, c. 285; 2004-141, ss. 1, 2; 2004-172, s. 2; 2006-264, s. 6; 2007-260, s. 1; 2007-360, ss. 2, 3.)

Civil Revocation for younger drivers

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Drivers under 18 and with limited drivers licenses can now have their licenses suspended for being charged with certain offenses even if they are ultimately found not guilty or the charges are dropped.  This is similar to a 30 day civil revocation for an impaired driving charge. This only happens with the most serious offenses and only when drivers are young and have limited driving privileges due to their age or lack of experience.  Below is more on the law .
By Shea Denning

Want to frighten your 16 or 17-year-old this Halloween?  Tell her that if she is charged with speeding more than 15 mph over the speed limit, she’ll be arrested and she’ll lose her license.  It may sound scary, but, after January 1, 2012, it is true.  I’ve written before about the new civil license revocation for provisional licensees.  Since the effective date for new G.S. 20-13.3 recently was amended and folks have raised numerous questions about the new law, I thought I’d follow up with a post addressing how and when the new civil license revocation applies.
If you have questions that aren’t addressed here, ask away. Many thanks to Matt Osborne, Associate Legal Counsel for the Administrative Office of the Courts, who prepared the list of covered offenses and whose insights as to other aspects of the law informed this post.
Which drivers may be subjected to the new civil license revocation?
Drivers who are 16 or 17 years old who have a limited learner’s permit or a provisional license issued by NC DMV pursuant to G.S. 20-11. These drivers are defined as “provisional licensee[s].” G.S. 20-13.3(a)(4).
Persons who are 15 years old who have a limited learner’s permit issued by NC DMV also are considered provisional licensees. Such persons are not, however, subject to civil license revocation under G.S. 20-13.3 because, pursuant to the Juvenile Code, Chapter 7B of the North Carolina General Statutes, persons under 16 may not be arrested.  Furthermore, there is no initial appearance for a juvenile alleged to be delinquent.
Which offenses trigger this license revocation?
The revocation is triggered by commission of a criminal moving violation, defined as a violation of Part 9 or 10 of Article 3 of Chapter 20 that is punishable as a misdemeanor or felony offense. G.S. 20-13.3(a)(2). Offenses listed in G.S. 20-16(c) for which no points are assessed are not included.  Equipment violations codified in Part 9 of Article 3 of Chapter 20 likewise are not included.
The following offenses are criminal moving violations:

• G.S. 20-137.4: Operating a school bus while using a mobile phone
• G.S. 20-137.4A: Operating a school bus while using a mobile phone to text or access electronic email
• G.S. 20-138.1:  Driving while impaired
• G.S. 20-138.2:  Driving while impaired in a commercial vehicle
• G.S. 20-138.2A: Operating a commercial vehicle after consuming
• G.S. 20-138.2B: Operating a school bus, school activity bus, or child care vehicle after consuming alcohol
• G.S. 20-138.3:  Operating a motor vehicle by person less than 21 after consuming alcohol or drugs
• G.S. 20-138.5:  Habitual impaired driving
• G.S. 20-138.7(a):  Operating a motor vehicle while there is an open container of alcohol in the passenger area and while the driver is consuming or has consumed alcohol
• G.S. 20-140:  Reckless driving
• G.S. 20-141(j1):  Speeding more than 15 mph over limit or more than 80 mph
• G.S. 20-141(j3):  Speeding in a commercial motor vehicle carrying a load that is subject to the permitting requirements of G.S. 20-119 and (i) driving 15 mph or more over the posted speed, or (ii) driving 15 mph or more over the permit speed
• G.S. 20-141.3:  Operating a motor vehicle willfully in a prearranged speed competition, or operating a motor vehicle willfully in speed competition, or allowing one’s vehicle to be operated in a prearranged speed competition, or wagering on a prearranged speed competition
• G.S. 20-141.4:  Felony death by vehicle, misdemeanor death by vehicle, felony serious injury by vehicle, aggravated felony serious injury by vehicle, aggravated felony death by vehicle, repeat felony death by vehicle
• G.S. 20-141.5:  Speeding to elude arrest
• G.S. 20-141.6: Aggressive driving
• G.S. 20-149(b): Improper operation by an overtaken driver causing a collision resulting in serious bodily injury, bodily injury, or property damage
• G.S. 20-157(a), (h), (i):  Failing to move over for law enforcement or emergency vehicle giving warning signal, or violating G.S. 20-157 and causing damage to property or injury, or violating G.S. 20-157 and causing serious injury or death
• G.S. 20-166(a), (a1), (b), (c), (c1): Failing to stop and remain after a crash resulting in serious bodily injury or death, or failing to stop and remain after a crash resulting in injury, or failing to provide information or render assistance following a crash, or failing to stop and remain after a crash resulting in damage to property or non-apparent injury
• G.S. 20-166.1:  Failing to notify law enforcement or other owner following crash, or failing to provide proof of insurance to DMV upon request
• G.S. 20-166.2: Failing, when a passenger in a vehicle involved in a crash, to remain at the scene, or provide information, or render assistance
• G.S. 20-167.1:  Transporting spent nuclear fuel without notifying NCSHP in advance

(Note:  The offenses in bold type are implied consent offenses that trigger a separate civil license revocation pursuant to G.S. 20-16.5. A judicial official may not enter a G.S. 20-13.3 revocation if the provisional licensee is subject to a G.S. 20-16.5 civil revocation for the same underlying conduct. The offense of misdemeanor death by vehicle is classified as an implied consent offense for offenses committed on or after December 1, 2011. See S.L. 2011-119.)
When is a provisional licensee’s license subject to civil revocation?
A provisional licensee’s permit or license is subject to revocation under G.S. 13-3 if: (1) a law enforcement officer has reasonable grounds to believe that the provisional licensee has committed a criminal moving violation, (2) the provisional licensee is charged with that offense, and (3) the provisional licensee is not subject to a civil revocation pursuant to G.S. 20-16.5 for the same underlying conduct.
What is the procedure for ordering the civil revocation of a provisional licensee’s license?
If a provisional licensee’s permit or license is subject to revocation under G.S. 20-13.3, the law enforcement officer must execute a revocation report (new AOC-CVR-12) and take the provisional licensee before a judicial official for an initial appearance. The law enforcement officer must expeditiously file the revocation report with the judicial official conducting the initial appearance.
If a properly executed revocation report concerning a provisional licensee is filed before a judicial official when that person is present before that official, the judicial official must, after completing any other proceedings involving the provisional licensee, determine whether there is probable cause to believe the conditions requiring civil license revocation are met. If the judicial official finds probable cause that the conditions in G.S. 20-13.3(b) are met, he or she must enter an order (new AOC-CVR-13) revoking the provisional licensee’s permit or license.
How long does the provisional licensee civil revocation last?
The period of revocation is 30 days. G.S. 20-13.3(d). Since the civil license revocation is a civil action, see G.S. 20-13.3(g), the civil counting rules of G.S. 1A-1, Rule 6(a) apply. Pursuant to Rule 6(a), the revocation ends at 12:01 a.m. on the thirtieth day after the revocation order is entered unless that date falls on a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions, in which case the revocation remains in effect until the next day that the courthouse is open for transactions.

Is a written revocation order required?
Yes. The judicial official must give the provisional licensee a copy of the revocation order (new AOC-CVR-13). G.S. 20-13.3(d). The order must state the date on which the provisional licensee’s permit or license again becomes valid.
Is the provisional licensee required to surrender his or her license or permit?
No. The provisional licensee keeps his or her license or permit. G.S. 20-13.3(d). The provisional licensee is not, however, authorized to drive during the revocation period.
Must the court inform DMV of the revocation?
Yes. The clerk must notify DMV of the issuance of a provisional licensee civil revocation within two business days of the issuance of the revocation order. G.S. 20-13.3(e). The notice must specify the beginning and end date of the revocation period.
May a provisional licensee be awarded a limited driving privilege?

No. G.S. 20-13.3(f) provides that a person whose license is revoked pursuant to G.S. 20-13.3 is not eligible for a limited driving privilege.
Must the licensee pay a fee to end the civil revocation?

No. The person’s permit or license becomes valid by operation of law at the conclusion of the revocation period. Payment of a fee is not required.
Are driver’s license or insurance points assessed for such revocations?
No. G.S. 20-13.3(h) provides that no driver’s license or insurance surcharge may be assessed for a G.S. 20-13.3 revocation.
What is the effective date of G.S. 20-13.3?
S.L. 2011-385 (S 636) enacted new G.S. 20-13.3, effective for offenses committed on or after October 1, 2011. The effective date was amended by H 335, ratified by the General Assembly on September 14, 2011 and presented to the governor on September 15, 2011. The bill, chaptered as S.L. 2011-412, became law without the governor’s signature on October 15, 2011. S.L. 2011-412 made new G.S. 20-13.3 effective January 1, 2012 for offenses committed on or after that date.
To carry out the legislature’s intent as reflected in H 335 and to avoid the confusion that would be caused by implementing the provisional licensee civil revocation as of October 1, 2011 and, shortly thereafter suspending it until January 1, 2012, the Administrative Office of the Courts elected not to implement S.L. 2011-385 on October 1, 2011, instead delaying its implementation until January 1, 2012.