The Law of Impaired Driving

The Law of Impaired Driving and Related Implied Consent Offenses in North Carolina 2014 Shea Riggsbee Denning

Chapter 6 Refusal s, Limited Driving s, and License Restoration I. Introduction 209 II. for Willfully Refusing a Chemical Test 209 A. NC DMV Hearing 210 B. Right to Hearing in Superior Court 211 C. for Willful Refusal by Person under 21 211 III. Commercial Driver s License Disqualifications 212 IV. Limited Driving s 213 A. Generally 213 B. Willful Refusal 213 1. Eligibility Requirements 214 2. Application and Hearing 215 3. Permissible Driving 215 a. Driving for Work-Related Purposes in Willful Refusal Cases 215 i. Driving for Work during Nonstandard Hours 216 b. Maintenance of Household Driving in Willful Refusal Cases 216 c. Alcohol Restriction in Willful Refusal Cases 216 d. Ignition Interlock 217 e. Form Order 217 C. Civil License 217 1. s for Minimum Periods of 30 or 45 Days 217 2. Indefinite Civil License 218 3. Application for 218 4. Authorized Driving 218 a. Driving for Work-Related Purposes 219 i. Driving for Work during Nonstandard Hours 219 b. Alcohol Restriction 220 c. Form Petition and Order 220 D. Following DWI Conviction 220 1. Generally 220 2. Application for 220 207

208 Contents 3. Eligibility 221 a. Person Convicted of DWI in North Carolina 221 b. Drivers under 21 Not Eligible 221 c. DWI Convictions in Another State or in Federal Court 221 4. s Extended Pursuant to G.S. 20-17.6 224 5. Authorized Driving 224 a. Driving for Work-Related Purposes 224 i. Driving for Work during Nonstandard Hours 225 b. Alcohol Restriction 225 c. Form Petition and Order 225 6. High-Risk Drivers 225 a. Limited Driving Requirements for High-Risk Drivers 226 b. Form Order 226 c. Exception for Employer-Owned Motor Vehicles 226 E. Following Driving after Consuming Conviction 226 1. Eligibility Requirements 227 F. Following Second or Subsequent Open Container Conviction 227 V. License Restoration 228 A. Generally 228 B. Alcohol Concentration Restrictions 228 1. 0.04 Restriction 229 2. 0.00 Restriction 229 3. Chemical Testing and Duration of Restriction 230 4. Reports of Violation 230 5. NC DMV Action and Hearing on Reported Alcohol Concentration Violation 230 C. Ignition Interlock Restriction 231 D. Conditional Restoration after Specified Number of Years 233 1. Four-Year s 233 E. Permanent 233 1. Restoration after Three Years 234 2. Restoration after Twenty-Four Months 234 F. Conditional Restoration Following Conviction of Habitual Impaired Driving 235 G. Conditional Restoration Following Impaired Driving and a Fatality 235

Chapter 6: Refusal s, Limited Driving s, and License Restoration 213 In addition, a person who is convicted for a first offense of driving a commercial motor vehicle after consuming alcohol under G.S. 20-138.2A is disqualified from driving a commercial motor vehicle for ten days. 22 A person who has been disqualified from driving a commercial motor vehicle for a conviction or refusal set forth in G.S. 20-17.4(a) who, as the result of a separate incident, is subsequently convicted of an offense or commits an act, such as refusal, requiring disqualification under G.S. 20-17.4(a) is disqualified from driving a commercial motor vehicle for life, though the North Carolina Division of Motor Vehicles (NC DMV) may adopt guidelines under which the disqualification can be reduced to ten years. 23 IV. Limited Driving s A. Generally The North Carolina Division of Motor Vehicles (NC DMV) has the exclusive power to issue, suspend, or revoke a person s North Carolina driver s license. 24 The General s confer upon the courts, however, the authority to issue limited driving privileges judgments that authorize a person with a revoked driver s license to drive for certain essential purposes. To be eligible for a limited driving privilege, a person must satisfy eligibility requirements defined by statute and demonstrate good cause for the issuance of the privilege. Thus, a limited driving privilege is a judgment issued in the discretion of the court authorizing a person with a revoked driver s license to drive, for limited purposes and at limited times, during the period of the revocation. The limited driving privileges available to counteract implied consent revocations are summarized in Table 6.1 at the end of this chapter. Copies of all limited driving privileges that are issued must be sent to NC DMV. 25 Upon receiving a privilege that is invalid on its face, NC DMV must immediately notify the court and the holder of the privilege that it considers the privilege void and that NC DMV records will not indicate that the holder has a limited driving privilege. 26 B. Willful Refusal As noted earlier, the penalty of having one s license revoked for failure to submit to chemical testing in an implied consent case is intended to encourage suspects to participate in testing. Obviously, the incentive to submit to testing would be greatly reduced if the ensuing refusal-based revocation had [G.S. 20-17.4(a)] and the offense or act occurred while the person was transporting a hazardous material that required the motor vehicle driven to be placarded. 22. Id. 20-17.4(a1). 23. Id. 20-17.4(b). 24. See Joyner v. Garrett, 279 N.C. 226 (1971); Smith v. Walsh, 34 N.C. App. 287 (1977). 25. G.S. 20-179.3(k). 26. Id. The North Carolina Court of Appeals held in State v. Bowes, 159 N.C. App. 18 (2003), that the provision in G.S. 20-179.3(k) allowing NC DMV to declare void a limited privilege a judgment of the court gave NC DMV the power to reverse the district court. The court of appeals concluded that this grant of authority violated the separation of powers clause in the state constitution, though it agreed with NC DMV s determination that Bowes, who was under 21 at the time of the impaired driving offense, was ineligible for a limited driving privilege. However, the state supreme court vacated the court of appeals decision and dismissed the appeal as moot. See 360 N.C. 55 (2005). Thus, NC DMV continues to abide by the provisions of G.S. 20-179.3(k).

220 The Law of Impaired Driving and Related Implied Consent Offenses in North Carolina b. Alcohol Restriction The limited driving privilege also must prohibit the driver from consuming alcohol while driving and from driving at any time while he or she has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts. 60 c. Form Petition and Order The form petition for a limited driving privilege to allow driving during a civil license revocation is AOC-CVR-09. The form for a limited driving privilege to allow driving during the period of a 30- or 45-day civil license revocation is AOC-CVR-10, and the form for a privilege to allow driving during an indefinite civil license revocation is AOC-CVR-11. D. Following DWI Conviction 1. Generally As discussed in chapter 2, G.S. 20-17(a)(2) requires NC DMV to revoke the license of any driver convicted for impaired driving under G.S. 20-138.1. The revocation may be for one or four years or may be permanent, depending upon whether the person previously has been convicted of an offense involving impaired driving, when that offense occurred, and the level at which a person is sentenced. 2. Application for A person convicted of impaired driving may apply for a limited driving privilege at the time judgment is entered or at a later time during the revocation period. 61 If the person applies after sentencing, he or she must file the application with the clerk in duplicate. 62 The clerk may not schedule a hearing on the matter until a reasonable time after the clerk files a copy of the application with the district attorney s office. 63 The hearing must be scheduled before the presiding judge at the applicant s trial if that judge is assigned to a court in the district court district or superior court district in which the conviction for impaired driving was imposed. 64 If the presiding judge is not available within the district and the conviction was imposed in superior court, the hearing must be scheduled before the senior regular resident superior court judge of the superior court district. 65 If the presiding judge is not available within the district and the conviction was imposed in district court, the hearing must be scheduled before the chief district court judge. 66 The hearing may be scheduled in any county within the district. 67 60. Id. 20-179.3(h). 61. Id. 20-179.3(c). 62. Id. 20-179.3(d). 63. Id. 64. Id. 20-179.3(d)(1). 65. Id. 20-179.3(d)(2). 66. Id. 20-179.3(d)(3). 67. Id. 20-179.3(d).

Chapter 6: Refusal s, Limited Driving s, and License Restoration 221 3. Eligibility a. Person Convicted of DWI in North Carolina A person whose license is revoked for impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege only if he or she is sentenced at Level Three, Four, or Five under G.S. 20-179. 68 The person also must satisfy each of the following additional conditions: The person must be revoked solely under G.S. 20-17(a)(2). At the time of the offense, the person must have been validly licensed or have had a license that had been expired for less than a year. The person must not have been convicted of an offense involving impaired driving within the seven years preceding the offense. Subsequent to the offense, the person must not have been convicted of or have an unresolved charge of an offense involving impaired driving. The person must have obtained and filed with the court a substance abuse assessment of the type required by G.S. 20-17.6. 69 Finally, the person must furnish proof of financial responsibility, or establish that he or she is exempt from this requirement, 70 and must, upon issuance of the privilege, pay a processing fee of $100. 71 b. Drivers under 21 Not Eligible A person who is under the age of 21 at the time he or she committed the offense of impaired driving that resulted in the revocation of his or her license under G.S. 20-17(a)(2) is not eligible for a limited driving privilege. This is because such persons also are revoked under G.S. 20-13.2(b), 72 and G.S. 20-179.3 authorizes a limited driving privilege for a person whose license is revoked solely under G.S. 20-17(a)(2). 73 Thus, limited driving privileges may not be issued under G.S. 20-179.3 for drivers whose licenses are revoked upon conviction of impaired driving for an offense committed when the person had not yet attained 21 years of age. 74 c. DWI Convictions in Another State or in Federal Court A person whose North Carolina driver s license is revoked because of a conviction in another jurisdiction that is substantially similar to impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege if he or she would have been eligible for it had the conviction occurred in North Carolina. 75 The eligibility requirements for such a privilege are set forth above in section IV.D.3.a. 68. Id. 69. Id. 20-179.3(b)(1). 70. See id. 20-179.3(l). 71. See id. 20-20.2. 72. This revocation applies regardless of whether the driver is charged with or convicted of the separate offense of driving after consuming by a person under 21. A separate provision, G.S. 20-13.2(a), requires NC DMV to revoke the license of a person convicted of violating G.S. 20-138.3(a). 73. G.S. 20-179.3(e). 74. The North Carolina Court of Appeals held in State v. Bowes, 159 N.C. App. 18 (2003), that NC DMV could not declare void a limited driving privilege granted by the court, though it agreed with NC DMV s determination that Bowes, who was under 21 at the time of the impaired driving offense, was ineligible for a limited driving privilege. However, the state supreme court vacated the court of appeals decision and dismissed the appeal as moot. See 360 N.C. 55 (2005). Thus, NC DMV continues to abide by the provisions of G.S. 20-179.3(k), which permit it to void a limited driving privilege that is invalid on its face. 75. G.S. 20-179.3(b).

222 The Law of Impaired Driving and Related Implied Consent Offenses in North Carolina In general, they require that the person (1) have been punished at Level Three, Four, or Five, (2) have been validly licensed at the time of the offense, (3) not have a qualifying prior impaired driving conviction, (4) not have a subsequent conviction or unresolved charge for impaired driving, (5) have a substance abuse assessment, and (6) furnish proof of financial responsibility. Even if a person s outof-state conviction satisfies the substantially similar criteria and the person meets the enumerated eligibility requirements, the person still must demonstrate that his or her North Carolina driving privileges were revoked, a requirement that significantly reduces the universe of eligible persons. A few examples may help demonstrate the impact of this limitation. Howard Henderson: An N.C. Resident with an Out-of-State DWI Conviction. Suppose that Howard Henderson, a North Carolina resident with a North Carolina driver s license, drives while impaired while vacationing in Pennsylvania. Henderson subsequently is convicted in Pennsylvania of driving while impaired. Pennsylvania, one of the 46 states 76 that is a member of the Drivers License Compact, 77 reports 78 the conviction to NC DMV. 79 After receiving the report, NC DMV revokes Henderson s driver s license pursuant to G.S. 20-4.24(b), which requires that North Carolina give the same effect to a report of a conviction in a member state of driving a motor vehicle while impaired that it would give to a North Carolina conviction of impaired driving, and G.S. 20-17(a)(2), which requires NC DMV to revoke the license of any driver upon receiving a record for his or her conviction of impaired driving under G.S. 20-138.1. 80 Given that Henderson s North Carolina driver s license was revoked, he is eligible for a limited driving privilege under G.S. 20-179.3 if he meets the other eligibility requirements noted above. Henderson must file his application for a privilege with the clerk in duplicate, and a hearing on his application may be held a reasonable time after the clerk files a copy of the application with the district attorney s office. 81 Since Henderson was convicted of impaired driving in a jurisdiction other than North Carolina, the hearing must be scheduled before the chief district court judge of the district court district in which Henderson resides. 82 If the Pennsylvania court imposed a term of nonoperation of a motor vehicle, then Henderson may apply for the limited driving privilege only after having completed at least 60 days of that term. 83 76. Pa. Dep t of Transp., Driver License Compact Fact Sheet (July 2011), www.dmv.state.pa.us/ pdotforms/fact_sheets/fs-dlc.pdf. 77. G.S. Chapter 20, Article 1C. 78. See Driver License Compact Fact Sheet, supra note 76. 79. See 75 Pa. Cons. Stat. 1581, Art. III (requiring the licensing authority of a party state [to] report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee ); cf. G.S. 20-4.24(a) (requiring that member states report a conviction for [d]riving a motor vehicle while impaired ). 80. Cf. Hoenisch v. Pa. Dep t of Transp., Bureau of Driver Licensing, 785 A.2d 969, 973 (Pa. 2001) (concluding that a conviction under G.S. 20-138.1 provides a sufficient basis for a reciprocal driver s license suspension in Pennsylvania). 81. G.S. 20-179.3(d). 82. Id. 83. Id. 20-179.3(c).

Chapter 6: Refusal s, Limited Driving s, and License Restoration 223 Howard Henderson: An N.C. Resident with an Out-of-State DWI Conviction in His Former Home State. Suppose instead that Henderson was a Pennsylvania resident licensed in Pennsylvania at the time he drove while impaired in Pennsylvania. Assume further that Henderson s alcohol concentration at the time he drove while impaired was 0.10, which resulted in a one-year revocation of his Pennsylvania driver s license. 84 Pennsylvania will not report Henderson s conviction to any other state, since Henderson is a Pennsylvania resident with a Pennsylvania driver s license. Suppose Henderson moves to North Carolina two months after his Pennsylvania conviction for impaired driving. Henderson is ineligible to obtain a North Carolina driver s license because of the Pennsylvania revocation. 85 And Henderson will not be eligible for a limited driving privilege under G.S. 20-179.3 because, even though he has no North Carolina driver s license and no reciprocal privilege to drive in North Carolina, his North Carolina driving privileges have not been revoked. 86 Charlene Connor: An N.C. Resident with a DWI Conviction in Federal Court. Consider next the circumstances of Charlene Connor, a North Carolina resident with a North Carolina driver s license who is convicted in federal court of driving while impaired on the U.S. Army base at Fort Bragg in Fayetteville, North Carolina. 87 Upon receiving notice of Connor s conviction, NC DMV is authorized to revoke Connor s license. 88 As a person whose North Carolina driver s license is revoked because of a conviction in another jurisdiction, Connor is eligible, upon satisfying other requirements, to obtain a limited driving privilege under G.S. 20-179.3. Her application, like Henderson s in the first example above, must be filed with the chief district court judge in the district in which she resides. Charlene Connor: An Out-of-State Resident with a DWI Conviction in Federal Court. Next, suppose that Connor is an active-duty soldier stationed at the Army base at Fort Bragg in Fayetteville, North Carolina. Connor is licensed to drive by her home state of Texas. In this example, Connor is ineligible to obtain a limited driving privilege under G.S. 20-179.3 following her conviction of impaired driving in federal court because her North Carolina driving privileges have not been revoked. 89 84. See 75 Pa. Cons. Stat. 3804(e). 85. See G.S. 20-4.25 (prohibiting member state from issuing a license if the applicant has held a license in another member state that has been revoked and the revocation period has not ended). 86. Cf. id. 20-22(a) (permitting NC DMV to revoke the driving privileges of nonresidents in like manner and for like cause as a driver s license issued by NC DMV); 20-23.1 (permitting NC DMV to revoke the operating privileges of a person who does not have a driver s license in like manner as it could suspend or revoke his license if such person held a driver s license ). Perhaps Henderson could spur NC DMV to act to revoke his driving privileges under G.S. 20-23.1 and thereby render himself eligible for a privilege under G.S. 20-179.3, but this seems an impractical solution. 87. See 18 U.S.C. 13 (assimilating state law crimes for areas within federal jurisdiction). 88. See G.S. 20-23.2. 89. Perhaps Connor could spur NC DMV to act to revoke her driving privileges as a nonresident under G.S. 20-22 and thereby render herself eligible for a privilege under G.S. 20-179.3, but this seems an impractical solution.

224 The Law of Impaired Driving and Related Implied Consent Offenses in North Carolina 4. s Extended Pursuant to G.S. 20-17.6 Even if the requisite revocation period passes, the license revocation for a person convicted of impaired driving in violation of G.S. 20-138.1 may not end until NC DMV receives a certificate of completion reflecting that the person obtained a substance abuse assessment and completed the recommended education or treatment. 90 A person whose license remains revoked pursuant to the provisions of G.S. 20-17.6 solely because NC DMV has not obtained a certificate of completion is not eligible for a limited driving privilege. 91 5. Authorized Driving A limited driving privilege issued to a person pursuant to G.S. 20-179.3 may authorize driving of a non-commercial motor vehicle within the State of North Carolina for essential purposes related to the person s employment, maintenance of the person s household, the person s education, the person s court-ordered treatment or assessment. community service ordered as a condition of the person s probation, and emergency medical care. 92 Driving that is not related to these purposes is unlawful even if done at times and on routes authorized by the privilege. 93 a. Driving for Work-Related Purposes A limited driving privilege may authorize driving for work-related purposes during standard working hours 6:00 a.m. to 8:00 p.m. on Monday through Friday without specifying the times and routes during/on which the driving must occur. 94 If the applicant is not required to drive for essential workrelated purposes except during standard working hours, the limited driving privilege must prohibit driving during nonstandard working hours unless the driving (1) is for emergency medical care or (2) is authorized as essential to the completion of any community work assignments, course of instruction at an Alcohol and Drug Education Traffic School, or substance abuse assessment or treatment that is ordered by the court as a condition of probation for the impaired driving conviction. 95 Thus, a person may not drive for any of the other permissible essential purposes, such as for maintenance of his or her household, outside of standard working hours. 96 The limited driving privilege must state the name and address of the applicant s place of work or employer, and it may include other information and restrictions applicable to work-related driving in the discretion of the court. 90. See G.S. 20-17.6(b), (c). This statute also applies to any person whose license was revoked as a result of a conviction of G.S. 20-138.2; 20-138.3; 20-138.2A (if the person s driver s license was revoked under G.S. 20-17(a)(13)); and 20-138.2B (if the person s driver s license was revoked under G.S. 20-17(a)(14)). 91. G.S. 20-17.6(e). 92. Id. 20-179.3(a). 93. Id. 20-179.3(f). 94. Id. 20-179.3(g). 95. Id. 96. Id.; id. 20-179.3(g2) (stating that a limited driving privilege may not allow driving for maintenance of the household except during standard working hours). The judge may exercise his or her discretion to further restrict driving for maintenance of the household.

Chapter 6: Refusal s, Limited Driving s, and License Restoration 225 i. Driving for Work during Nonstandard Hours If the person is required to drive for an essential work-related purpose outside of standard working hours, he or she must present documentation of that fact before the judge may authorize driving for this purpose during those hours. If the person is self-employed, the documentation must be attached to or made a part of the limited driving privilege. If the judge determines that it is necessary for the applicant to drive during nonstandard hours for a work-related purpose, he or she may authorize such driving subject to the following limitations: If the person is required to drive to and from a specific place of work at regular times, the limited driving privilege must specify the general times and routes during/on which the person will be driving to and from work and restrict driving to those times and routes. If the person is required to drive to and from work at a specific place but is unable to specify the times at which that driving will occur, the limited driving privilege must specify the general routes on which the person will be driving to and from work and restrict the driving to those general routes. If the person is required to drive to and from work at regular times but is unable to specify the places at which work is to be performed, the limited driving privilege must specify the general times and geographic boundaries during/in which the applicant will be driving and restrict driving to those times and within those boundaries. If the person can specify neither the times nor places during/to which he or she will be driving for work, or if the person is required to drive during nonstandard working hours as a condition of employment, the limited driving privilege must specify the geographic boundaries in which the person will drive and restrict driving to within those boundaries. 97 b. Alcohol Restriction The limited driving privilege also must prohibit the driver from consuming alcohol while driving and from driving at any time while he or she has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts. 98 c. Form Petition and Order The form order for a limited driving privilege for a person convicted of impaired driving under G.S. 20-138.1 is AOC-CR-312. The form petition for seeking a limited privilege for a person revoked for an out-of-state or federal conviction of impaired driving is AOC-CV-350. The form privilege for such out-of-state convictions is AOC-CV-352. 6. High-Risk Drivers As is the case for any person convicted of impaired driving in violation of G.S. 20-138.1, a person so convicted based on an alcohol concentration of 0.15 is subject to a license revocation of at least one year. 99 And if evidence that the person had an alcohol concentration of 0.15 or more was presented at trial or sentencing, the limited privilege must contain additional restrictions that reflect the person s status as a high-risk driver. 100 97. Id. 20-179.3(g1)(1) (4). 98. Id. 20-179.3(h). 99. Id. 20-17(a)(2); 20-19(c1). 100. Id. 20-179.3(c1).

226 The Law of Impaired Driving and Related Implied Consent Offenses in North Carolina For purposes of determining whether the person qualifies as a high-risk driver, G.S. 20-179.3(c1) provides that the results of a chemical analysis presented at trial or sentencing are sufficient to prove a person s alcohol concentration, are conclusive, and are not subject to modification by any party, with or without approval of the court. a. Limited Driving Requirements for High-Risk Drivers A limited privilege issued to a person whose license is revoked upon conviction of impaired driving in violation of G.S. 20-138.1 and who had an alcohol concentration of 0.15 is subject to the following restrictions: 1. The limited driving privilege may not become effective until at least 45 days after the final conviction under G.S. 20-138.1. 2. The limited driving privilege must restrict the driver to operating only a designated motor vehicle. 3. The limited driving privilege must require that the designated motor vehicle be equipped with a functioning ignition interlock system of a type approved by NC DMV, which is set to prohibit driving with an alcohol concentration greater than 0.00. 4. The limited driving privilege must require that the driver personally activate the ignition interlock system before driving the motor vehicle. 5. Finally, the limited driving privilege must restrict the applicant to driving only to and from the applicant s place of employment, the place the applicant is enrolled in school, any courtordered treatment or substance abuse education, and any ignition interlock service facility. 101 b. Form Order AOC-CR-340 is the form for such privileges. c. Exception for Employer-Owned Motor Vehicles The ignition interlock restrictions for a limited driving privilege that are set forth as requirements (2), (3), and (4) above do not apply to a motor vehicle that is owned by the driver s employer and that the driver operates solely for work-related purposes. 102 For this exception to apply, the owner of the vehicle must file with the court a written document authorizing the driver to drive the motor vehicle for work-related purposes under the authority of the limited driving privilege. 103 This exception to ignition interlock requirements is unique to the limited privilege; there is no such exception to ignition interlock requirements that apply after the period of revocation ends and a person s license is restored. 104 E. Following Driving after Consuming Conviction When a person is convicted of driving after consuming while under age 21 in violation of G.S. 20-138.3, the person s license is revoked pursuant to G.S. 20-13.2(a). s under G.S. 20-13.2 endure for one year and run concurrently with any other revocations. The statute is somewhat misleadingly captioned Grounds for revoking provisional license, though its license revocation provisions apply to persons under 21, rather than exclusively to provisional license-holders, all of whom are 101. Id. 20-179.3(c1); 20-179.3(g5). 102. Id. 20-179.3(g4). 103. Id. 104. See id. 20-17.8.

Chapter 6: Refusal s, Limited Driving s, and License Restoration 227 under 18. 105 The incongruous reference resulted from the General Assembly s failure to amend the title of G.S. 20-13.2, which formerly applied only to provisional licensees, when it raised from 18 to 21 the age below which a person is prohibited from driving after consuming. 106 1. Eligibility Requirements A person whose driver s license is revoked solely for conviction of driving by a person under 21 after consuming alcohol or drugs in violation of G.S. 20-138.3 is eligible for a limited driving privilege if he or she meets all of the following eligibility requirements: The person must have been 18, 19, or 20 years old on the date of the offense. The person must not previously have been convicted of a violation of G.S. 20-138.3. At the time of the offense, the person must have held a valid driver s license or a license that had been expired for less than a year. At the time of the offense, the person must not have been convicted within the preceding seven years of an offense involving impaired driving. Subsequent to the offense, the person must not have any unresolved pending charges for or convictions for an offense involving impaired driving. The person must have obtained and filed with the court a substance abuse assessment of the type required by G.S. 20-17.6. The person must furnish proof of financial responsibility or establish that he or she is exempt from this requirement. 107 A person convicted of impaired driving based upon the same incident of driving that led to the driving after consuming conviction is ineligible for a limited driving privilege because his or her license also will be revoked pursuant to G.S. 20-17(a)(2). Other than G.S. 20-138.3(d), there is no limited privilege that authorizes driving during a period of revocation imposed pursuant to G.S. 20-13.2. Indeed, G.S. 20-138.3(d) provides that G.S. 20-179.3, rather than this subsection, governs the issuance of a limited driving privilege to a person who is convicted of [driving by a person under 21 after consuming] and of driving while impaired as a result of the same transaction. As previously noted, G.S. 20-179.3, in turn, authorizes a privilege only when a person is revoked solely under G.S. 20-17(a)(2). F. Following Second or Subsequent Open Container Conviction NC DMV must revoke a person s license upon receiving notice of a second or subsequent conviction of transporting an open container of alcoholic beverage under G.S. 20-138.7. 108 The term s econd or subsequent is not defined for purposes of this revocation or for the underlying offense. It is, however, defined in G.S. 20-138.2A (prohibiting driving a commercial motor vehicle after consuming alcohol) and 20-138.2B (prohibiting driving a school bus, school activity bus, or child care vehicle after consuming alcohol) as a previous conviction that occurred in the seven years immediately preceding the date of the current offense. 109 Perhaps this definition from similar statutes likewise applies here. 105. See id. 20-4.01(31a). 106. See S.L. 1995-506. 107. G.S. 20-138.3(d) (incorporating eligibility requirements of G.S. 20-179.3). 108. Id. 20-17(a)(12). 109. Id. 20-138.2A(d); 20-138.2B(d). See also id. 20-17(a)(16) (defining second or subsequent conviction of larceny of motor fuel under G.S. 14-72.5 as a prior conviction in the seven years immediately preceding the

Table 6.1. Type of Conviction of Impaired Driving under G.S. 20-138.1 Limited Driving s for Implied Consent Offense s (continued) Limited G.S. 20-17(a)(2) G.S. 20-179.3 The person was sentenced at Level Three, Four, or Five The person is revoked solely under G.S. 20-17(a)(2) At the time of the offense, the person was validly licensed or had a license that had been expired for less than a year The person has not been convicted of an offense involving impaired driving within the seven years preceding the instant offense Subsequent to the offense, the person has not been convicted of, or had an unresolved charge of an offense involving, impaired driving The person has obtained and filed with the court a substance abuse assessment The person furnishes proof of financial responsibility or establishes exemption from that requirement Eligibility Requirements for Limited Driving Authorized Driving Judge Who May Issue Driving for essential purposes related to employment maintenance of household education court-ordered treatment or assessment community service ordered as a condition of probation emergency medical care Generally, privilege may permit driving only during standard working hours; exceptions apply to driving for emergencies and other specifically authorized purposes Must restrict the person from driving while consuming alcohol or driving at any time while the person has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts Trial judge if judge is assigned to a court in the district in which conviction was imposed If trial judge is not available and conviction was imposed in superior court, senior regular resident superior court judge If trial judge is not available and conviction was imposed in district court, chief district court judge AOC Form AOC-CR-312

Table 6.1. Type of Conviction of Impaired Driving under G.S. 20-138.1 and Alcohol Concentration of 0.15 or More Conviction of Impaired Driving under G.S. 20-138.1 for Offense Committed by Person under 21 Limited Driving s for Implied Consent Offense s (continued) Limited G.S. 20-17(a)(2) G.S. 20-179.3 The person was sentenced at Level Three, Four, or Five The person is revoked solely under G.S. 20-17(a)(2) At the time of the offense, the person was validly licensed or had a license that had been expired for less than a year The person has not been convicted of an offense involving impaired driving within the seven years preceding the instant offense Subsequent to the offense, the person has not been convicted of, or had an unresolved charge of an offense involving, impaired driving The person has obtained and filed with the court a substance abuse assessment The person furnishes proof of financial responsibility or establishes exemption from that requirement G.S. 20-17(a)(2); 20-13.2(b) No Limited Eligibility Requirements for Limited Driving Authorized Driving Judge Who May Issue may authorize driving to and from the person s place of employment place the person is enrolled in school any court-ordered treatment or substance abuse education any ignition interlock service facility Generally, privilege may permit driving only during standard working hours; exceptions apply for specifically authorized purposes. must restrict the person from driving while consuming alcohol or driving at any time while the person has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts not effective until 45 days after final conviction The person must comply with ignition interlock requirements in G.S. 20-179.3(g5) Trial judge if judge is assigned to a court in the district in which conviction was imposed If trial judge is not available and conviction was imposed in superior court, senior regular resident superior court judge If trial judge is not available and conviction was imposed in district court, chief district court judge N/A N/A N/A N/A AOC Form AOC-CR-340

Table 6.1. Type of Conviction of Impaired Driving in Another State Limited Driving s for Implied Consent Offense s (continued) Limited G.S. 20-23 G.S. 20-179.3 The person was sentenced at Level Three, Four, or Five The person is revoked solely under G.S. 20-17(a)(2) At the time of the offense, the person was validly licensed or had a license that had been expired for less than a year The person has not been convicted of an offense involving impaired driving within the seven years preceding the instant offense Subsequent to the offense, the person has not been convicted of, or had an unresolved charge of an offense involving, impaired driving The person has obtained and filed with the court a substance abuse assessment The person furnishes proof of financial responsibility or establishes exemption from that requirement Eligibility Requirements for Limited Driving Authorized Driving Judge Who May Issue Driving for essential purposes related to employment maintenance of household education court-ordered treatment or assessment community service ordered as a condition of probation emergency medical care Generally, privilege may permit driving only during standard working hours; exceptions apply to driving for emergencies and other specifically authorized purposes Must restrict the person from driving while consuming alcohol or driving at any time while the person has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts Chief district court judge of the district in which the person resides AOC Form AOC-CV-352 Form petition: AOC-CV-350

Table 6.1. Type of Conviction of Impaired Driving in Federal Court Limited Driving s for Implied Consent Offense s (continued) Limited G.S. 20-23.2 G.S. 20-179.3 The person was sentenced at Level Three, Four, or Five The person is revoked solely under G.S. 20-17(a)(2) At the time of the offense, the person was validly licensed or had a license that had been expired for less than a year The person has not been convicted of an offense involving impaired driving within the seven years preceding the instant offense Subsequent to the offense, the person has not been convicted of, or had an unresolved charge of an offense involving, impaired driving The person has obtained and filed with the court a substance abuse assessment The person furnishes proof of financial responsibility or establishes exemption from that requirement Eligibility Requirements for Limited Driving Authorized Driving Judge Who May Issue Driving for essential purposes related to employment maintenance of household education court-ordered treatment or assessment community service ordered as a condition of probation emergency medical care Generally, privilege may permit driving only during standard working hours; exceptions apply to driving for emergencies and other specifically authorized purposes Must restrict the person from driving while consuming alcohol or driving at any time while the person has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts Chief district court judge AOC Form AOC-CV-352 Form petition: AOC-CV-350

Table 6.1. Type of Conviction of Driving after Consuming Alcohol or Drugs by Person under 21 in violation of G.S. 20-138.3 Limited Driving s for Implied Consent Offense s (continued) G.S. 20-13.2(a) Limited G.S. 20-138.3(d); 20-179.3 Eligibility Requirements for Limited Driving Authorized Driving Judge Who May Issue The person was 18, 19, or 20 years old on the date of the offense The person has not previously been convicted of a violation of G.S. 20-138.3 At the time of the offense, the person held a valid driver s license or a license that had been expired for less than a year At the time of the offense, the person had not been convicted within the preceding seven years of an offense involving impaired driving At the time of the offense, the person had not willfully refused to submit to a chemical analysis under G.S. 20-16.2 in the preceding seven years Subsequent to the refusal, the person has no unresolved pending charges for, or additional convictions of an offense involving, impaired driving The person has obtained a substance abuse assessment from a mental health facility and has successfully completed any recommended training or treatment program The person furnishes proof of financial responsibility or establishes exemption from this requirement Driving for essential purposes related to employment maintenance of household education court-ordered treatment or assessment community service ordered as a condition of probation emergency medical care Generally, privilege may permit driving only during standard working hours; exceptions apply to driving for emergencies and other specifically authorized purposes Must restrict the person from driving while consuming alcohol or driving at any time while the person has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts Trial judge if judge is assigned to a court in the district in which conviction was imposed If trial judge is not available and conviction was imposed in superior court, senior regular resident superior court judge If trial judge is not available and conviction was imposed in district court, chief district court judge AOC Form AOC-CR-312