Baggett v. Peters , 49 N.C. App. 435 ( 1980 )

VAUGHN, Judge.

The sole issue in this appeal is whether petitioner accumulated as many as three points in traffic violations during the probationary period. Respondent’s chief exception is to the court’s conclusion as a matter of law

That the provisions of North Carolina General Statute 20-16(c) providing for the assignment of points as of the date of the commission of the offense, applies only to the provisions of North Carolina General Statute 20-16(a)(5) through (a)(ll), and does not apply to the accumulation of three or more points during a period of probation, which constitutes a violation of the conditions of probation.

This ruling was erroneous, and we reverse.

Petitioner’s contention is that where the legislature “intended a sanction to be based on commission dates, they also clearly expressed so.” This is true. G.S. 20-16(a)(l), (7); see also Snyder v. Scheidt, Comr. of Motor Vehicles, 246 N.C. 81, 97 S.E. 2d 461 (1957). It is also true that the legislature speaks in terms of conviction dates for other offenses. G.S. 20-16(a)(8)-(10a). We are not, however, concerned with the authority of the Division of Motor Vehicles to suspend the license of an operator under G.S. 20-16(a) in this case. It is uncontested that petitioner’s license was duly subject to suspension on 22 June 1978 because he had been convicted, within a period of twelve months, of speeding in excess of 55 m.p.h. and reckless driving. G.S. 20-16(a)(9). In that situation, the Division could not order suspension unless there were two convictions within the period. It is to be distinguished from the question at bar where the Division seeks only to enforce the unexpired period of the original suspension because of a probation violation. In this context, G.S. 20-16(c) is the controlling authority.

It is an elementary rule of statutory construction that words must be given their clear and plain meaning in light of discernible legislative intent. Mazda Motors v. Southwestern Motors, 296 N.C. 357, 250 S.E. 2d 250 (1979); Food House, Inc. v. Coble, Sec. of Revenue, 289 N.C. 123, 221 S.E. 2d 297 (1976). In precise language, G.S. 20-16(c) requires the Division to assign points to a driver’s record for traffic convictions as of the date of the commission of the offense. The statute simply prevents assessment of points until after conviction so the driver may first contest the charge. Nevertheless, upon conviction, the assessment of points relates back to the date the offense was committed.

G.S. 20-16(c) also provides that the Division, in its discretion, may substitute a period of probation for suspension. Specifically, it states that “[a]ny violation of probation during the probation period shall result in a suspension for the unexpired remainder of the suspension period. Any accumulation of three or more points under this subsection during a period of probation shall constitute a violation of the condition of probation.” Respondent argues that for purposes of finding a probation violation, points accumulate in the same way that they are assigned. We agree. The statute refers to the accumulation of points “under this subsection.” Subsection (c) assigns points as of the commission date. The legislature has, therefore, plainly indicated that during probation, points accumulate as they are assigned.

Petitioner committed two traffic offenses well within the period of probation. It is irrelevant that the second conviction was not entered until after his probation had expired. When the conviction was entered, points were assigned to his record as of the commission date under G.S. 20-16(c). Four points were assigned to his driving record which were effective for the probationary period. Thus, petitioner violated the probation condition that he not accumulate as many as three points. The Division of Motor Vehicles properly suspended his driving privileges for the unexpired remainder of the suspension period, and it was error for the court to order restoration of those privileges.

In conclusion, we note that our interpretation of the statute is consistent with its policy. The hearing officer decided to place petitioner “on strict probation that it might serve as a deterrent to any further Motor Vehicle violations.” It does not seem that petitioner was effectively deterred. We must agree with respondent that if points accumulated as of the conviction date, “individuals during probation who were arrested for a traffic violation, could postpone their trials to a date beyond the period of probation, and thus escape the effect of the sanction.” Such a result would surely erode the policy of G.S. 20-16(c) which is to encourage the Division to order probation instead of suspension when it is a reasonable enforcement alternative.

The judgment appealed from is reversed.

Reversed.

Judges Martin (Harry C.) and Wells concur.