Magistrate’s Order for DWI Does Not Toll Statute of Limitations

February 3, 2017 – Published by Robinson Law Firm

In State v. Turner, *** N.C. App. ***, 793 S.E.2d 287 (2016), filed 6 December 2016, the Court of Appeals held that a Magistrate’s Order for DWI did not toll the two-year statute of limitations in G.S. § 15-1.  The Court concluded that the trial court erred when it denied defendant’s motion to dismiss when the state did not take any action within the two-year statute of limitation.  On the same day, the Supreme Court granted a motion to stay Turner.

Practitioners from both sides of the courtroom appeared surprised by Turner. Despite this surprise, the Court’s decision reflects a correct and fundamental application of the basic rules of statutory construction to the plain and unambiguous language of G.S. § 15-1.

G.S. § 15-1.  Statute of limitations for misdemeanors.

G.S. § 15-1 states:

The crimes of deceit and malicious mischief, and the crime of petit

larceny where the value of the property does not exceed five dollars

($5.00), and all misdemeanors except malicious misdemeanors, shall

be presented or found by the grand jury within two years after the

commission of the same, and not afterwards: Provided, that if any

indictment found within that time shall be defective, so that no judgment

can be given thereon, another prosecution may be instituted for the same

offense, within one year after the first shall have been abandoned by the


G.S. § 15-1 was first enacted in 1826, with revisions in 1907 and 1943.  In 1973, the General Assembly enacted Chapter 15A.  Chapter 15A repealed, transferred and amended numerous sections of Chapter 15.  G.S. § 15A-921 provides for seven different types of criminal pleadings. Despite the revisions noted, the enactment of Chapter 15A, and specifically G.S. § 15A-921, G.S. § 15-1 has remained essentially unchanged.  It appears that the General Assembly has never considered any Bill to amend G.S. § 15-1 to include any of the seven different types of pleadings set forth in G.S. § 15A-921.  However, that may soon change!

Seven Principles of Statutory Construction.

There are eight principles that govern the proper construction and interpretation of G.S. § 15-1. 

First, statutory construction and interpretation are questions of law.  State v. Largent, 197 N.C. App. 614, 677 S.E.2d 514 (2009).  Second, statutory analysis begins with an examination of the plain words of the statute.  State v. Narron, 193 N.C. App. 76, 666 S.E.2d 860 (2008).  Third, when the language of the statute is clear and unambiguous, there is no room for judicial construction, and the Court must give the statute its plain and definite meaning.  State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998).  Fourth, the Court is without power to interpolate, or superimpose provisions and limitations not contained therein.  In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978); and State v. Williams, 218 N.C. App. 450, 725 S.E.2d 7 (2012).  Fifth, if a statute plainly expresses a legislative purpose on its face, it must be enforced exactly as it stands, and without any regard to the result which will flow from it.  People’s Bank v. Loven, 172 N.C. 666, 90 S.E. 948 (1916).  Sixth, the General Assembly is presumed to have acted advisedly, and with a knowledge of the legal meaning of language and of existing law.  State v. Lee, 164 N.C. 533, 80 S.E. 405 (1913).  Seventh, the caption of a statute may be considered in aid of construction, but it cannot control the text, when the text itself is clear.  In re Chisholm’s Will, 176 N.C. 211, 96 S.E. 1031 (1918).  Eight, the term “shall” connotes that the action referred to is mandatory.  State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979).

Application of the Rules of Statutory Construction.

[A]ll misdemeanors except malicious misdemeanors, shall be presented or found by the grand jury within two years after the commission of the same, and not afterwards:…” is the pertinent language from G.S. § 15-1 that guided the Court in Turner

These words are plain, clear and unambiguous. As such, there is no room for judicial construction and the Court must enforce the statute as written.  State v. Moraitis, 141 N.C. App. 538, 540 S.E.2d 756 (2000).  The Court cannot insert or add words and phrases to reach a desired result under the guise of statutory construction.  Bates, supra.  The words “shall” and “not afterwards” are mandatory in their directives.

In 1973, the General Assembly repealed, transferred and amended numerous sections of Chapter 15, and provided for seven different types of criminal pleadings in Chapter 15A.  Yet, in the ensuing period of almost 44 years, the General Assembly never amended G.S. § 15-1 to include any of these pleadings.  The Court was clearly correct to apply G.S. § 15-1 as it was written.

Pertinent Case Law.

In State v. Hedden, 187 N.C. 803, 123 S.E. 65 (1924), the defendant was arrested and charged with abandonment on 11 September 1921; a magistrate’s warrant was issued on 25 October 1922; and an indictment issued on 1 November 1923. The Supreme Court held that the indictment violated the statute of limitations, and that the trial court erred when it denied defendant’s motion to dismiss.  In doing so, the Court stated:

There is no saving clause in this statute as to the effect of

preliminary warrants before a justice of the peace or other

committing magistrate, and in our opinion on the facts of this

record the law must be construed and applied as written. There

must be a presentment or indictment within two years from the

time of the offense committed and not afterwards.  Hedden at 66.

In Turner, the State relied on State v. Underwood, 244 N.C. 68, 92 S.E. 461 (1956) to support its position that the statute of limitations was tolled upon issuance of a criminal pleading.  The Turner Court was quick to point out that the State’s reliance was misplaced, and for good reason. First, Hedden and Underwood are factually distinguishable.  Hedden was not tried or indicted within two years while Underwood was tried within the two-year statute of limitations and thereafter, appealed to superior court.  Second, the magistrate in Hedden did not have final jurisdiction whereas the court in Underwood had final jurisdiction from which he appealed.  Third, the State’s argument ignores the language of Hedden noted above regarding the absence of a saving clause in G.S. § 15-1 for orders issued by the magistrate.

The State has previously found itself in a similar position where the plain and unambiguous language of a statute dictated a result contrary to the one the State desired in a DWI case.  See, State v. Williams, 113 N.C. App. 686, 440 S.E.2d 324 (1994).  Williams construed and interpreted the plain and unambiguous language of G.S. § 20-135.2A(d) to determine whether the statute created an evidentiary privilege against the admission into evidence of the absence of wearing a seat belt except when prosecuting the seat belt infraction.  The Court concluded it did using the principles noted above.

Does The Stay Stop The Precedential Value of Tuner?

The State’s position is that Turner has no precedential value because a stay has been issued.  The best legal precedent the State can cite in support of its position is an obscure and unsupported statement by the Court of Appeals in a footnote.  See, State v. Isenhour, 194 N.C. App. 539, 670 S.E.2d 264 (2008)(Footnote 1).  This statement is not supported by cite to any legal precedent.  The State’s position is expressly contradicted by case law

“An opinion of [the Court of Appeals] is binding on this Court [of Appeals] and all lower courts until it is overturned by a higher court.”  State v. Terrell, 160 N.C. App. 710 (2003)(unpublished); See also, State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004) and State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371 (2012).  In Boyett, the Court acknowledged that State v. Carter, 216 N.C. App. 453, 718 S.E.2d 687 (2011), cited by the defendant, was pending before the Supreme Court for review, but stated it was bound by it until and if it was overturned by the Supreme Court.  The Court of Appeals routinely relies on its prior opinions as controlling authority, even when a temporary stay is in place pending further review by the Supreme Court.  See, State v. Ward, *** N.C. App. ***,  792 S.E.2d 579 (2016); State v. Osterhoudt, 222 N.C. App. 620, 731 S.E.2d 454 (2012); State v. Young, 721 S.E.2d 410 (2012)(unpublished); State v. Jones, 216 N.C. App. 519, 718 S.E.2d 415 (2011); State v. Hartley, 212 N.C. App. 1, 710 S.E.2d 385 (2011); State v. Garnett, 209 N.C. App. 537, 706 S.E.2d 280 (2011); and David v. Ferguson, 153 N.C. App. 482, 571 S.E.2d 230 (2002).

On 30 December 2016, Troy D. Page, Assistant Legal Counsel for the North Carolina Administrative Office of Courts issued a memorandum to Judicial Branch Officials to advise of the particulars of Turner.  In that memorandum he indicated that because Turner was stayed it was not binding upon the trial courts.  Mr. Page retracted this position in a subsequent memorandum dated 4 January 2017 because it was not a correct statement of the law.


The decision in Turner should come as no surprise when the plain and unambiguous language of G.S. § 15-1 is interpreted using long-standing rules of statutory construction and interpretation.  Any argument that the language is other than clear and unambiguous cannot be made in good faith.  It would be improper for any court to attempt to insert words or phrases into G.S. § 15-1 under the guise of statutory construction.  To do so would be an attempt to legislate from the bench in violation of the separation of powers.  G.S. § 15-1 must be enforced exactly as its plain and unambiguous language directs, without regard to any result that might flow from it.  The Turner Court was correct in its holding.  The Supreme Court should reach the same conclusion if it accepts Turner for review. 

It is doubtful that holding in Turner will affect any great number of cases.  The State, in almost all situations, controls the speed at which a case is prosecuted.  There should be great concern when a misdemeanor case approaches its “expiration date”.  If the State is concerned with a magistrate’s order reaching its “expiration date”, has alternatives to avoid this situation.

The Robinson Law Firm has over 30 years experience defending DWI cases.

Since 1995, Founder Les Robinson has been teaching other lawyers how to defend clients charged with DWI

Contact The Robinson Law Firm immediately and get the help you need and deserve if you have been charged with DWI.

Categories: ,