Edelstein & Payne Case Results

Wake County "Called and Failed" stricken, case returned to court calendar

February 2021

Yesterday I was able to get a young man's case back on a court docket. The charges, "hit and run" and reckless driving were in "VL" status after the man missed a court date last summer. He had a good reason for missing court and thinking the case would be continued, apparently based upon a conversation with someone at the District Attorney's office, but he was "called and failed". He learned about this when he was pulled over and charged with Driving While License Revoked; the license was revoked for failure to appear on the traffic violations. I was able to discuss the matter with a prosecutor and get their agreement to put the case on a calendar.

So now he has three pending criminal cases, which is actually better than what his situation was yesterday. Prior to my motion, his case was in VL status. VL, apparently, means "Voluntary (dismissal) with Leave (to reinstate)". It is essentially legal limbo, and for traffic cases results in a license revocation that can't be fixed without handling the VL case.While the case is technically dismissed, it can be reinstated at the prosecutor's pleasure. However, and very unfortunately, for many years it has been difficult to get a case out of VL status. Apparently this has been up to the sole discretion of the prosecuting authority, and depending on who and when you asked, VL cases would not be returned to a calendar unless the Defendant agreed to plead guilty; refusal to plead guilty would result in a return of the case to "VL" status.

This, of course, is extremely problematic and would appear to blatantly trample on the right of a criminal defendant to due process of law, including a trial at which the prosecution bears the burden to prove each element of the crime beyond a reasonable doubt. The underlying rationale for this, that the ability of the state to prove the crime has been prejudiced or harmed by the defendant's refusal to address the charges, makes a certain amount of sense for cases that have been in FTA status for years and witnesses and evidence have disappeared. However, cases are currently being sent to VL status for relatively minor matters such as traffic matters, in merely a matter of months. It is unreasonable and unnecessary to add procedural barriers to resolve these issues in a fair manner, especially for traffic matters and in the context of the widespread agreement that having valid licensed drivers is good public policy.

In most cases, a Wake County DWLR charge will be dismissed (permanently) if the defendant gets re-licensed. Often this requires resolving any outstanding failure to appear or failure to comply (pay) on traffic matters. In this case, getting the called and failed stricken as in error, and the case placed on a calendar should allow for the young man to get his license (probably he will have to pay a re-license fee to DMV) so he can get that charge dismissed and then just has to deal with the hit and run and reckless driving charges. Getting the case removed from VL status and put back on a calendar is probably the most important thing that will happen to secure his right to a reasonably fair resolution of his charges.

As far as I know, the question of the lawfulness of a prosecuting authority's refusal to reinstate a VL case is pending before the state Supreme Court. I may update this writing when there is a resolution of that dispute.

If you have a charge that is stuck in VL limbo, it is worth talking to an attorney to see if something can be done to get the case back on a docket. I always provide free consultations, and can be reached at 919-828-1456 x5.

Practice area(s): Criminal Defense

Sean Cecil

Sean is an experienced advocate dedicated to justice for all people. He believes that individual human rights outweigh the freedom to make an easy dollar.

Experienced and Successful

Edelstein & Payne has been dedicated to individual and workers' rights for over 30 years. Our attorneys have consistently been named on best lawyer and superlawyer lists, and have received numerous awards and recognitions for community contributions.

Dedicated to North Carolina Communities

With nearly 80 years of combined experience serving the working people of North Carolina, the lawyers at Edelstein & Payne have proven their dedication to justice for all people.