LEGAL GUIDE
Written by attorney Bill Powers | Oct 11, 2013

Double Jeopardy in North Carolina - TYPES OF OFFENSES - Inclusion

Double Jeopardy in North Carolina includes;

  1. CRIMINAL OFFENSES

  2. CRIMINAL CONTEMPT Imposed after a plenary hearing. United States v. Dixon, 509 U.S. 688 (1993).

  3. INFRACTIONS, State v. Hamrick, 110 N.C. App. 60 (1993).

Punishments imposed for criminal offenses, criminal contempt imposed after a plenary hearing, and infractions are included within double jeopardy. In addition, some civil remedies may also constitute punishment within double jeopardy. To determine whether a civil remedy is punishment, see Hudson v. United States, 522 U.S. 93 (1997). The Court in Hudson disavowed the method of analysis used in Halper v. United States, 490 U.S. 435 (1989), to determine whether a civil remedy constitutes punishment under the Double Jeopardy Clause that would bar a later criminal prosecution based on the same conduct. Instead, the Court stated that it would use the seven factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Court noted that these factors must be considered with the particular civil remedy statute at issue (not the actual civil remedy imposed in the case), and “only the clearest proof" will suffice to override legislative intent and transform into a criminal punishment what has been denominated a civil remedy. The Court ruled that civil monetary penalties and occupational debarment imposed against bankers for violating banking laws did not bar later criminal charges based on the same violations.

Sample cases:

State v. Bradley, ___ N.C. App. ___, 640 S.E.2d 432 (6 February 2007) [habitual DWI offense is not unconstitutional under the Double Jeopardy Clause based on the rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), or Blakely v. Washington, 542 U.S. 296 (2004)].

State v. Streckfuss, 171 N.C. App. 81 (2005) (seizing defendant’s out-of-state driver’s license in conjunction with pretrial thirty-day revocation under G.S. 20-16.5 was not punishment under Double Jeopardy Clause to bar later prosecution of DWI).

State ex rel. Albright v. Arellano, 165 N.C. App. 609 (2004) (double jeopardy did not bar district attorney’s civil nuisance action under Chapter 19 of General Statutes based on defendants’ prostitution business after defendants had previously been convicted of prostitution offenses).

In re O’Neal, 160 N.C. App. 409 (2003) (no double jeopardy violation when state prosecuted juvenile in juvenile court for simple assault after using that conduct in juvenile probation violation hearing).

State v. Reid, 148 N.C. App. 548 (2002) (pretrial thirty-day disqualification with no limited driving privilege for commercial motor vehicle license was not punishment under Double Jeopardy Clause to bar later prosecution for DWI).

State v. Beckham, 148 N.C. App. 282 (2002). The defendant stole property from a business. In response to a demand for payment by the business under G.S. 1-538.2 (civil liability for larceny, shoplifting, etc.), the defendant paid $200.00 to the business. The court ruled, applying the standard set out in Hudson v. United States, 522 U.S. 93 (1997), that the payment of money to the business did not bar under the Double Jeopardy Clause his later prosecution for larceny of the property.

Rate this guide


Can’t find what you’re looking for?


Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer