|Subject: Issues Involving False Documents
Date: Thu, 28 Aug 2003 09:44:56 –0400
From: “Wayne J. Hurder” firstname.lastname@example.org Director of DMV
Organization: North Carolina Department of Transportation
To: Devin W Drye email@example.com
CC: Dwight Godwin firstname.lastname@example.org
“Terry A. Blevins” Blevins@dot.state.nc.us
Bobbie Holloman email@example.com
Patricia Robertson Glenn firstname.lastname@example.org
Sylvia Spain email@example.com, Barbara Webb firstname.lastname@example.org
We have received a variety of faxes from you concerning persons whose licenses you recommend for cancellation per NCGS 20-15. The information you are providing is out of line with my previous comments on this issue.
To start with, a number of your comments say the person was “was here illegally,” by which I presume you mean the person is an illegal alien or undocumented alien. As I stated for the last 9 years, the fact that a person is in the United States without the permission of the Department of Homeland Security (formerly INS) is irrelevant as far as North Carolina DMV is concerned, as per NCGS 20-7 and NCGS 4.01. The fact that you continue to make these references to a person's immigration status is cause for concern. If a person from the outside, such as a lawyer or a reporter, were to review the documents you sent us (as would be their legal right) then they might jump to the conclusion that DMV is targeting people due to their illegal status.
If local law enforcement wants to make an issue of their legal status, that obviously is their right and responsibility depending on the statutes under which they operate. But let me make it clear – for the umpteenth time – North Carolina General Statutes Chapter 20 does not involve itself with a person's legal status in determining their eligibility to apply for a license.
The second issue involves the false documents or information used as a basis for cancellation under NCGS 20-15. If that information is coming from law enforcement, you need to state the name of the law officer that brought you the information and the fact that that law officer told you a certain document was false. You need to name the type of false document. One fax you sent me states that a person “was arrested by Off. Wiley Used false passport & was here illegally.” I am left trying to figure out whether Officer Wiley said it was a false passport. You need to be very specific. In addition, we can cancel the license only if the false documents was used to obtain the license. Law enforcement rightfully can arrest someone for carrying a false passport, but we can cancel the license only if the false passport was one of the two ID documents presented to us. It is not clear in your statements that the false documents are connected to the issuance process.
On one of your faxes (for customers Uricino and Cruz) you wrote “Both used BC.” I am not sure what the purpose of that statement is; I assume you meant to say that the BCs were false, but that is not what it says and I could not legally cancel their licenses based on that statement.
Now if it was a DL person who made the determination of the false document, then that needs to be said and it needs to be specifically documented in SADLS what aspect of the document was false and how the examiner reached that conclusion. If it was a DLE who made the determination and then summoned the law enforcement officer, then that DLE will need to be able to cite specifics in court as to why they reached that conclusion. You as Sr. Examiner should be in the loop on that and you have the responsibility to document that action and make sure the examiner has proper documentation of the issue.
Chapter 3, Section E of the Examiner's Manual has very critical information in this regard. This chapter was written on advice of the “Attorney General's office in 1994 soon after we were sued for a false arrest in March 1994. As long as you and your staff follow the policy and procedure in that Chapter, you should be on safe ground. If you deviate from the requirements of Chapter 3, Section E of the Examiner's Manual, you are asking for trouble. So you may want to read this carefully and make sure your staff understand the requirements of it.
In addition, while the Chapter does not specifically say this, you should know that we have a federal and state mandate to apply our policies and procedures fairly and equitably to all customers, regardless of race, sex, language, ethnicity, etc. The consequences for anyone who targets certain individuals (e.g. racial profiling) for arrest, cancellation of license, etc. because of these factors alone can be extremely serious. Obviously, Hispanics are not the only customers who may be presenting us false documents. We did a study last year of 100 cases of ID Theft/Fraud investigated by DMV Enforcement, and only 16% of the cases involved Hispanics. So we have to keep our eyes open to the potential from fraud from all customers, and in detecting fraud, we need to be consistent in our handling of the cases.
By this e-mail, I am requesting Dwight Godwin to work with you to ensure that all of your procedures on these issues are done consistent with the guidelines stated here and in the Examiner's Manual.
“Margaret C. Perry” email@example.com
Marsha Harris firstname.lastname@example.org
Nikki Broome email@example.com
Nadine Barnes firstname.lastname@example.org
Judy F Cowen email@example.com
Barbara Stancil Ford firstname.lastname@example.org
Gail Smith email@example.com
Jacqueline Florence firstname.lastname@example.org
Kirk Freeman email@example.com
“Martha S. Hipp” firstname.lastname@example.org
“Jere E. Hyder” email@example.com, Page Partin firstname.lastname@example.org
John Wilburn Williamson email@example.com
“Robert Black Quinn, Jr.” firstname.lastname@example.org
“Samuel O. Blue” email@example.com
Susanne Ashley Byrd firstname.lastname@example.org
Brenda C Johnson email@example.com
Kevin Brantley firstname.lastname@example.org
“Dolphus R. Marshburn” email@example.com
Judy Long firstname.lastname@example.org
Statutory Requirements on Matricula Consular, Confiscation of Documents & Legal Presence
In the last week, several issues have come up regarding service we provide to persons from foreign countries or persons who do not speak English. Please review each of these three issues. Please make sure each examiner in your office gets a copy of this e-mail. It is our responsibility to make sure that we follow the law on each of these issues, regardless of what our personal feelings are and regardless of what persons outside of DMV would like for us to do.
1. Acceptance of the Matricula Consular as Proof of Residence (NCGS20-7(b3) and (b4)—The Driver License Section accepts the Matricula Consular as proof of residency. It is specified in statute that the “matricula consular or substantially similar document issued by the Mexican Consulate for North Carolina” is to be considered a “reasonably reliable” indicator of residency. There are no ifs, ands or buts about the statutory language. It is not an issue for statutory interpretation as to what proof of residence the Mexican consulate used before issuing the Matricula, just as it is not an issue what proof of residence a bank used before setting up a bank account. In reality, most agencies, businesses, banks, etc. rely on the customer's statement of address when conducting business. We have heard allegations that some examiners have rejected the matricula consular because the Consulate did not require proof of residence address before issuing the card. If that were our standard, we would have to reject a lot more than just the Matricula as proof of residence address. In fact, the standard that we apply is the North Carolina General Statutes, and the General Statutes specify we will accept the Matricula Consular.
We do realize that we have customers who provide us fraudulent addresses. This past year, we tried to get Expansion Budget funding for hardware and software systems that would allow us to systematically check all customers address – not just those persons of a certain ethnicity. We will continue to try to obtain funds to implement this technology. We will continue to look at ways to address this issue as it involves ALL of our customers.
2. Confiscation of Customer Documents (NCGS 20-7(b1))-- North Carolina law says “The Division may copy the identification presented or hold it for a brief period of time to verify its authenticity.” We do not have any statutory authority to confiscate a customer's documents. According to interpretation by the Attorney General, a “brief period of time” can be considered up to 30 minutes. During that time, you can photocopy it, make an optical scan of it, or call someone in your chain of command to discuss it. But do not confiscate any customer's documents. Only law enforcement agencies have the authority to confiscate documents. Do not confiscate documents even if requested to do so by law enforcement agencies. In 1994, the Driver License Section was sued because in several instances examiners had confiscated documents at the request of INS agents. It subsequently turned out that the INS documents were legitimate. It created considerable embarrassment to the Section because (1) in confiscating the document, we violated the law; (2) the INS was wrong in its initial assessment of the validity of the document.
3. Proof of Legal Presence—North Carolina law (20-7(b1) says “To obtain a drivers license from the Division, a person shall…be a resident of this State…” The definition of a resident under 20-4.01(34) does not say you have to be a U.S. citizen or that you have to be legally present in the United States. The legal definition says you are presumed to be a resident of the state if you reside here longer than 6 months “for other than a temporary or transitory purpose” but it does not specify a minimum amount of time that you have to live here in order to be a resident. Since about 1989, the Attorney General's office has interpreted the statute to mean that a person does not have to be legally present in the state to qualify for a license. North Carolina is one of 20 states in the United States that do not require proof of legal presence. Thirty states do require proof of legal presence.
As you well know, the fact that the General Statutes do not require proof of legal presence upsets some people who wish we would decline to serve people here without proof of legal presence. Whichever way you may feel, or whichever way your friends or associates feel, we are required to follow General Statutes. For that reason, we do not require customers to prove legal presence. In requesting customers to provide identification documentation, you should not be requesting that the customer prove legal presence. Contrary to what some people say, there is nothing in federal law that says a person must be legally present in the country to receive a driver license. You should not make statements to the customers accusing them of being here “illegally” or without proper immigration documentation. It is your responsibility to follow the laws of the State of North Carolina. If and when the General Assembly changes the laws of the State, we will change our policies and procedures accordingly.
U.S. law requires that we serve all of our customers without discrimination based on race, religion, ethnicity, national origin, language, etc. That does not mean customers are excused from meeting the statutory requirements of North Carolina law, but that does mean we cannot impose our personal standards based on opinion of their legal status, their religion, their national origin, etc. This is a standard that we expect all examiners to adhere to.