Duncan A. McMillan

DWI/Traffic Cases

General DWI Information

If you are charged with the offense of Driving While Impaired and submit to a chemical test of your breath which results in an alcohol concentration of 0.08 or more, your license is suspended immediately for a period of thirty days. Although the thirty day civil revocation is mandatory, you may be eligible for a Pretrial Limited Driving Privilege for the balance of that thirty day period once you have waited the first ten days of that suspension period.

In order to obtain a Pretrial Limited Driving Privilege you must meet the following eligibility requirements and provide the indicated information:

1. You must either have held a valid driver’s license or a license that had been expired for less than one year as of the date of the offense.
2. You must not have an unresolved pending charge involving impaired driving except the charge for which the license is currently revoked.
3. At least ten days of the thirty day revocation period has expired.
4. You must obtain a substance abuse assessment from a licensed substance abuse provider, and must register for and agree to participate in any recommended training or treatment program. Verification of the assessment must be provided to the court with the Limited Driving Privilege.
5. In addition to the above mentioned requirements, you must file a Petition with the court, and on the date following the filing of the petition, must submit a proposed Pretrial Limited Driving Privilege accompanied by a certified seven year driving record and a properly executed DL-123 form verifying that you have liability insurance in effect on your automobile. The DL-123 is available upon request from your liability insurance carrier.
6. The standard hours of operation included in the Pretrial Limited Driving Privilege are from 6am to 8pm, Monday through Friday. If work requires driving outside of these hours, the Petition for the Limited Driving Privilege must by accompanied by written verification from the employer of the need to drive after 8 o’clock p.m. or on Saturdays or Sundays.
7. There is a $100.00 fee payable to the Clerk of Court.

Following the expiration of the thirty day period of civil revocation, you are required to pay a $100.00 restoration fee to clear the civil revocation. You should go to room 1000 of the Wake County Clerk of Court’s office and advise the clerk that you are there to pay a civil revocation restoration fee. The clerk will pull the file, and upon payment of the $100.00 restoration fee, will return the original license. Upon payment of the restoration fee, the license is valid with no restriction unless and until you are convicted upon trial in court.

Refusal of Chemical Test

If you are charged with Driving While Impaired (DWI) and refuse to submit to a chemical test of the breath or blood, your license will be automatically suspended for thirty days, and, in addition, the Division of Motor Vehicles (DMV) will notify you within several weeks that a one year revocation will be imposed for refusing to submit to the chemical test. Upon receipt of the DMV notification, you must surrender your license unless a request for a hearing to contest the refusal revocation is received in writing by the DMV prior to the effective date of the one year revocation. If you are charged with DWI and refuse to submit to a chemical test and desire to contest the one year revocation, it is imperative that a request for a hearing be made immediately upon receipt of that notification from DMV. It is also imperative that DMV have your current address since the notice letter will be mailed to the address of record at DMV.

DWI Sentencing Levels

Effective December 1, 2011, there will be six levels of punishment for Driving While Impaired in North Carolina. Since 1983, there have been five levels of punishment for Driving While Impaired, with Level 1 being the most severe punishment. The Legislature has amended the Driving While Impaired Statute to include a sixth punishment level, Level A1. The level of punishment is determined based on a sentencing hearing in which the judge makes findings regarding the existence of Grossly Aggravating Factors, Aggravating Factors, and Mitigating Factors.

Grossly Aggravating Factors

Grossly aggravating factors are as follows:

1. A prior conviction for an offense involving impaired driving which occurred within seven years of the date of the offense for which the defendant is currently being sentenced. (Each prior conviction within the designated time period is a separate grossly aggravating factor.)
2. A conviction for Driving While Impaired after the date of offense for which the defendant is sentenced, but prior to or contemporaneously with the sentencing on the current charge.
3. A conviction for Driving While Impaired when the appeal has been withdrawn and the resentencing has not yet occurred.
4. Serious personal injury caused to another person by the defendant’s impaired driving at the time of the offense.
5. Driving by the defendant while a passenger under the age of 18 years was in the vehicle at the time of the offense. (Each passenger under the age of 18 may constitute a separate grossly aggravating factor). 20-179(c)(4).
6. Driving by the defendant while a person with a mental development of a child of the age of 18 was in the vehicle at the time of the offense.
7. Driving by the defendant if a passenger with a physical disability that prevents unaided exit from the vehicle was in the vehicle at the time of the offense.
8. Driving by the defendant at the time of the offense while his/her license was revoked, and the revocation was for an impaired driving revocation under NCGS 20-28(a).

If one grossly aggravating factor is found, level 2 punishment must be imposed by the Judge. If two aggravating factors are found to exist, level 1 punishment must be imposed. Level 1 punishment must also be imposed if any single factor exists under the newly adopted 20-179(c)(4). (Driving with a passenger under the age of 18, driving with a passenger with the mental development of the person under the age of 18, or driving with a passenger who suffers from a physical disability preventing unaided exit from the vehicle). If three aggravating factors are found, level A1 punishment must be imposed.

Historically, two grossly aggravating factors have been required to established Level 1 punishment. Under the law effective December 1, 2011, in some circumstances only one grossly aggravating factor need be proved to establish Level 1 punishment.

Aggravating Factors

The following are aggravating factors under our Driving While Impaired sentencing law:

1. Gross impairment of the defendant’s faculties or an alcohol concentration of 0.15 or more within a relevant time of the driving.
2. Especially reckless or dangerous driving.
3. Negligent driving that lead to a reportable accident.
4. Driving by the defendant while his/her license was revoked. (But not for an impaired driving offense.)
5. A driving record which includes two or more prior convictions for offenses for which at least three points are assigned or for which the convicted person’s license is subject to revocation, if the conviction occurred within five years of the date of the offense.
6. One or more prior convictions of impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
7. Two or more convictions for an offense that subjects the driver’s license to revocation or suspension if those offenses occurred within five years of the date of current Driving While Impaired offense.
8. Conviction of speeding by the defendant while attempting to elude arrest at the time of the impaired driving.
9. Conviction on the occasion of the impaired driving offense of speeding by at least 30 mph over the speed limit.
10. Passing a stopped school bus during the commission of the offense of impaired driving.
11. Any other factor that aggravates the seriousness of the offense.

Mitigating Factors

The following are the mitigating factors set forth in our Driving While Impaired Sentencing Statute:

1. Slight impairment of the defendant’s faculties resulting solely from alcohol and the alcohol concentration does not exceed 0.09.
2. Slight impairment of the defendant’s faculties resulting solely from alcohol, when no chemical analysis had been available to the defendant.
3. Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
4. A safe driving record of the defendant with no conviction for any motor vehicle offense for which at least four points were assigned within five years prior to the date of the offense for which sentence is being imposed.
5. Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition and the amount of the drug taken was within the prescribed dose.
6. The defendant’s voluntary submission to a mental health facility for an assessment after he/she was charged with the impaired driving offense for which he/she is being sentenced, and voluntary participation in any recommended treatment.
7. Completion of treatment and sixty (60) days of continuous alcohol monitoring system.

General Sentencing Guidelines

In summary, if three grossly aggravating factors are found to exist, Level A1 punishment is required. If two grossly aggravating factors exist, Level 1 punishment must be imposed. Further, if one grossly aggravating factor under 20-179(c)(4) exists, Level 1 punishment must be imposed. If only one grossly aggravating factor (other than a grossly aggravating factor under 20-179(c)(4) exists), Level 2 punishment must be imposed.

If no grossly aggravating factors exist, the sentencing Judge weighs the evidence of aggravating and mitigating factors to determine whether the aggravating factors outweigh the mitigating factors, whether the aggravating factors and mitigating factors substantially counter balance one another, or whether the mitigating factors outweigh the aggravating factors.

If the aggravating factors outweigh the mitigating factors, level 3 punishment is imposed. If the factors counter balance each other, Level 4 punishment is imposed. If the mitigating factors outweigh the aggravating factors, Level 5 punishment is imposed.

The punishments for the various sentencing levels are as follows:

Level A1:

1. Imprisonment for up to 36 months.
2. A Minimum sentence of 12 months, 4 months of which must be active.
   2.a. A Mandatory 120 day active sentence.
   
3. A Maximum fine of $10,000.00
4. A special DWI assessment fee of $100.00
5. A requirement that the defendant obtains a Substance Abuse Assessment and
   complete any alcohol education or treatment required.
6. A mandatory permanent revocation of license, with no Limited Driving
   Privilege authorized.
7. A requirement that the defendant have a continuous alcohol monitoring
   device on his/her person for a minimum of 120 days, and for a maximum
   period of up to the length of time for which the person is placed on
   probation.

Level 1:

1. Imprisonment for up to 24 months.
2. A maximum fine of $4,000.00.
3. A special Driving While Impaired fee of $100.00.
4. A mandatory minimum term of imprisonment of not less than thirty days.
5. A requirement that the defendant obtain a Substance Abuse Assessment and complete the alcohol education required.
6. A mandatory revocation of license, with no Limited Driving Privilege authorized.
7. A requirement that the defendant participate in a continuous alcohol monitoring program for a minimum of thirty (30) days, with the judge having discretion to require continuous alcohol monitoring for the entire period for which the defendant has been put on probation.

Level 2:

1. Imprisonment for up to twelve months.
2. A maximum fine of $2,000.00.
3. A special Driving While Impaired assessment fee of $100.00.
4. A mandatory minimum term of incarceration of seven days.
5. A requirement that the defendant obtain a Substance Abuse Assessment and complete any education or treatment program recommended by the assessing agency.
6. A mandatory revocation of license, with no Limited Driving Privilege authorized.
7. A requirement that the defendant participate in a continuous alcohol monitoring program for a minimum of thirty (30) days, with the judge having discretion to require continuous alcohol monitoring for the entire period for which the defendant has been put on probation.

Under either Level 1 or 2 punishment, the Judge may give credit against the mandatory minimum term of imprisonment for any inpatient treatment received by the defendant following his offense of impaired driving.

Level 3:

The punishment for Level 3 offenses of driving while impaired is as follows:

1. Imprisonment for up to six months.
2. A maximum fine of $1,000.00.
3. A special Driving While Impaired assessment fee of $100.00.
4. A requirement that the defendant obtain a Substance Abuse Assessment and complete any treatment program recommended by the assessing agency.
5. A mandatory term of incarceration of 72 hours, which term may be suspended upon the condition that the defendant perform 72 hours of community service.
6. A one year revocation of the defendant’s driving privilege.
7. In the discretion of the judge, the defendant may be required to participate in a continuous alcohol monitoring program.

A person subject to the Level 3 punishment, who is otherwise eligible, may obtain a Limited Driving Privilege for the mandatory one year period of revocation imposed for the conviction of impaired driving. However, if the alcohol concentration was 0.15 or higher, the court must impose a forty-five (45) day period of revocation prior to issuing the limited privilege.

Level 4:

The punishment for Level 4 Driving While Impaired is as follows:

1. Imprisonment for up to 120 days.
2. A maximum fine of $500.00.
3. A special Driving While Impaired assessment fee of $100.00.
4. A requirement that the defendant obtain a Substance Abuse Assessment and
   complete any treatment program recommended by the assessing agency.
5. A mandatory term of imprisonment of 48 hours which may be suspended
   upon the condition that the defendant perform 48 hours community service.
6. A one year revocation of the defendant's driving privilege.
7. In the discretion of the judge, the defendant may be required to participate in
   a continuous alcohol monitoring program.

A person who is subject to Level 4 punishment, who is otherwise eligible, may obtain a Limited Driving Privilege for the one year period of revocation imposed for the conviction of impaired driving. However, if the alcohol concentration was 0.15 or higher, the court must impose a forty-five (45) day period of revocation prior to issuing the limited privilege.

Level 5:

Punishment for Level 5 Driving While Impaired is as follows:

1. Imprisonment for up to 60 days.
2. A maximum fine of $200.00.
3. A special Driving While Impaired assessment fee of $100.00.
4. A requirement that the defendant obtain a substance abuse assessment and complete any treatment program recommended by the assessing agency.
5. A mandatory term of imprisonment of 24 hours, which term may be suspended upon the condition that the defendant perform 24 hours of community service.
6. A one year revocation of the defendant’s driving privilege.
7. In the discretion of the judge, the defendant may be required to participate in a continuous alcohol monitoring program

A person who is subject to Level 5 punishment, who is otherwise eligible, may obtain a Limited Driving Privilege for the one year period of revocation imposed for the conviction of impaired driving. However, if the alcohol concentration was 0.15 or higher, the court must impose a forty-five (45) day period of revocation prior to issuing the limited privilege.

Under the newly adopted amendments to the Driving While Impaired law, a magistrate or judge setting conditions of pre-trial release for an individual charged with Driving While Impaired may require the use of a continuous alcohol monitoring device as a condition of pre-trial release if the defendant has a prior conviction of Driving While Impaired within the previous seven years.

ELEVATED ALCOHOL CONCENTRATION/IGNITION INTERLOCK REQUIRED.

The law in North Carolina provides that if a person is convicted of Driving While Impaired and if the State proves at a sentencing hearing that the person had an alcohol concentration of 0.15 or more at the time of the offense, a judge must order that any limited driving privilege issued be conditioned upon the installation of an ignition interlock system approved by the Commission. A limited driving privilege issued with an interlock system requirement restricts the driver to the operation of only one particular designated motor vehicle. It is further required that the holder of the limited driving privilege personally activate the ignition interlock system before driving the motor vehicle.

If an individual is otherwise eligible for a limited driving privilege, the law provides that there is a one year loss of license, and no limited driving privilege may be issued until the first 45 days of that one year revocation period have passed. In addition, after the passage of 45 days, a limited privilege may only be issued if the defendant has an ignition interlock device installed on his car.

The only exception to this requirement is if the vehicle driven by the holder of the limited privilege is owned by the licensee’s employer; is operated by the licensee solely for work related purposes; and the owner (employer) has filed with the court a written document authorizing the applicant to drive the vehicle for work related purposes under the authority of a limited driving privilege.

There are other circumstances and conditions that may call for an interlock ignition system to be installed on a licensee’s vehicle. These are primarily related to circumstances surrounding the restoration of a license following a period of revocation during which no limited privilege was authorized.

A more significant problem exists with respect to a limited privilege issued following the finding of an elevated alcohol concentration. The law provides that for the ten and a half month period that the privilege is valid, driving is restricted to driving to and from work. The law does not allow for driving for maintenance of household, doctor’s appointments, community service requirements, or substance abuse treatment. That limitation is especially damaging for single defendants who have no one to rely on for their household errands.

The issue of the interlock restriction and the elevated alcohol concentration is further complicated because there are two separate institutions that deal with the question. The first is the court system, which is bound by the rules of evidence. The second is the bureaucracy of the North Carolina Division of Motor Vehicles, which is not bound by the rules of evidence. It has been my experience that if I enter a plea of guilty on behalf of my client on a day when the chemical analyst (breathalyzer operator) is not in court, the court will not find at sentencing that my client had an elevated alcohol concentration. Absent such a finding, the court is not bound by the limitations of the law and is authorized to issue a limited driving privilege immediately. There is no 45 day waiting period, no ignition interlock requirement, and a broader limited driving privilege may be allowed.

Notwithstanding such a ruling by the court, since the DMV operates under its own rules and regulations, DMV will consider the limited driving privilege to be invalid since their records already reflect the elevated alcohol concentration. In spite of DMV’s position as to the validity of such a privilege, once a judge signs a limited driving privilege, it is a lawful court order authorizing the holder of the privilege to drive in accordance with the terms set out.

DMV, however, is bound to get its pound of flesh. If an individual who, in fact, had an elevated alcohol concentration avoids the interlock privilege requirements at sentencing in court, DMV will require that individual to install an ignition interlock system on his or her car as a condition of the restoration of the driver’s license at the end of the one year revocation. Such limitation, of course, is associated with the restoration of a full license with no other restrictions on driving other than the requirement to have the interlock in place.

The bottom line is that a person who is convicted of DWI who blew a .15 or more at the time of arrest will be required to have an interlock device as a requirement of licensure for a period of one year.

For the most part, I find that my clients are better off if we can enter a plea without the chemical analyst present so that they can have more flexibility in their driving privilege for the year the license is revoked, even though they will be required to install an interlock as a condition of the restoration of full driving privileges at the end of that period. In a case in which the arresting officer is also the breath test operator, it is necessary to call the case up and dispose of it on a date other than the officer’s court date to avoid the state having the opportunity to prove the alcohol concentration beyond a reasonable doubt.

PROVISIONAL LICENSEE PER SE ALCOHOL VIOLATIONS

North Carolina General Statute 20-138.3 prohibits anyone under the age of 21 from driving a motor vehicle on the public streets or highways with any alcohol remaining in his or her system. The prohibition also includes driving while any controlled substance remains in the individual’s body, unless such controlled substance was lawfully obtained and taken in therapeutically appropriate amounts.

The law provides that the odor of alcohol on the breath of an underage driver is insufficient evidence, standing alone, to prove that alcohol remains in the driver’s body. However, the odor of alcohol alone may be sufficient if the driver was offered an alcohol screening test, or other chemical analysis, and refused to provide the appropriate breath or blood sample for analysis.

Although a portable breath testing device which may be used for investigative purposes by law enforcement officers in DWI cases is not admissible to show the alcohol concentration of an individual in a DWI case, the results of such tests are admissible in connection with a provisional licensee violation. Presumably, this is so because there is a per se prohibition on driving with any alcohol in the body for a person under the age of 21, and a precise measurement of the alcohol quantity is not necessary.

A conviction for underage drinking and driving carries a one year loss of license. An underage driver, who is 18, 19, or 20 years old and is otherwise eligible for a Limited Privilege, may obtain a Limited Driving Privilege upon a conviction for underage drinking and driving. An individual who is 16 or 17 years old may not obtain a Limited Driving Privilege. No limited privilege is authorized for an underage drive who is convicted of a full fledged Driving While Impaired.

In the Tenth Judicial District, it is generally advisable for an individual who is charged with underage drinking and driving to obtain an assessment, and complete the alcohol education program recommended, prior to court. It is also helpful for such individual to perform 24 hours of community service prior to court. As of the time of this writing (July, 2005) it is not uncommon for a judge to grant a Prayer for Judgment Continued in an underage drinking and driving case where the defendant has obtained an assessment and completed treatment, and has performed 24 hours of community service. However, the current legislature is considering amendments to the motor vehicle laws that would preclude a judge from exercising his or her authority to grant a Prayer for Judgment in these cases. Although a Prayer for Judgment Continued is a finding of guilt, since no final judgment is entered, it cannot be used as a basis for a license suspension by the Division of Motor Vehicles.