Let’s pretend

Some Wake County DUI offenders benefit from the recording of imaginary conviction dates.

July 28, 2012 

The investigation that has ensnared a well-regarded Wake County judge spotlights some courthouse nitty-gritty that may have been common knowledge to insiders but that seems to have been off the general public’s radar. Off the radar, that is, unless someone has been convicted of drunken driving – in which case this little maneuver for shortening a drivers license suspension, or wriggling out of it altogether, might be a matter of burning interest.

The maneuver involves changing the recorded date of the conviction. It’s a pretense, using a type of court order that experts say is intended to correct clerical mistakes.

Since the mandatory year-long loss of driving privileges is supposed to begin when the defendant is convicted, or when his or her appeal is dropped, entering a conviction date earlier than the real one means the suspension can be shortened or eliminated.

The N&O’s reporting has determined that the Wake County courts lead the state in issuance of these backdating “nunc pro tunc” orders (the Latin means “now for then”). Yes, Wake is a populous county. But of 424 DWI cases throughout North Carolina during the past five years giving rise to these orders, a state database shows at least 273 of the cases in Wake.

What that suggests is that nunc pro tuncs are being misused, if not abused. Otherwise, one could only conclude that defense lawyers, prosecutors and judges in other counties simply don’t have the intelligence and good sense to bring these orders into play. More likely, they’re properly leery of using them to rewrite history.

Ouch! That hurts

Penalties for drunk driving are indeed severe, as they should be. Along with the license suspension go much higher insurance rates. And loss of driving privileges can be more than an inconvenience if it interferes with someone’s livelihood.

With those hardships in mind, some prosecutors and judges are receptive in certain cases, no doubt a small minority, to requests for leniency. That’s where a nunc pro tunc might come in. A defense lawyer would ask for a conviction date to be backdated, get the district attorney’s office to agree and have a judge sign the order.

Where then-Judge Kristen Ruth of Wake District Court is accused of blundering is in having signed nunc pro tunc orders that altered conviction dates entered by other judges. Ruth, who acknowledged having signed orders presented to her by attorney James Crouch, said she had failed to read the orders because she trusted Crouch. She then stepped down from her post.

Ruth, Crouch and the attorney’s paralegal face charges in connection with their handling of the orders. District Attorney Colon Willoughby faults the defendants for changing conviction dates without his office being in the loop. Yes, that would be a problem.

Pulling those strings

It isn’t hard to imagine the occasional case – say, a first-time DWI offender whose job or education hinges on being able to drive – where all could agree that a shortened license suspension would be fair. Using nunc pro tunc orders as a means to an end could be, and is, defended on those grounds.

But abuses could arise. For example, an attorney with the right connections could work the system to get DWI clients back behind the wheel, even with an obvious risk that they’d just drive drunk again. That would smack of special treatment for those who could scope out and afford to hire the right lawyer, whether they had any legitimate claim to leniency or not – making people even more cynical about the courts’ evenhandedness.

Now that the numbers are out there for all to see, with Wake County exposed as nunc pro tunc central, it’s time for some hard reflection on the part of those who have allowed backdating of convictions to become a relatively routine practice.

That means especially the D.A.’s office, on which the public depends for rigorous enforcement of DWI laws, and the county’s District Court bench. Judges should not allow themselves to be used as rubber stamps just because defense attorneys and prosecutors find it mutually expedient to cut a DWI offender some slack. Stiff penalties, fairly and uniformly enforced, are an indispensible deterrent to drunk driving. “Nunc pro tunc” should not come to mean “not that drunk.”

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