GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
H D
HOUSE DRH60261-LK-138 (3/15)
Short Title: Governor's DWI Task Force Recommendations. |
(Public) |
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Sponsors: |
Representative Hackney. |
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Referred to: |
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A BILL TO BE ENTITLED
AN ACT to implement the recommendations of the Governor's Task force on driving while impaired.
The General Assembly of North Carolina enacts:
PART I. REGULATING MALT BEVERAGE KEGS
SECTION 1. G.S. 18B-403(a) reads as rewritten:
"(a) Amounts. - With a purchase-transportation permit, a person may purchase and transport an amount of alcoholic beverages greater than the amount specified in G.S. 18B-303(a). A permit authorizes the holder to transport from the place of purchase to the destination within North Carolina indicated on the permit at one time the following amount of alcoholic beverages:
(1) A maximum of 100 liters of unfortified wine;
(2) A maximum of 40 liters of either fortified wine or spirituous liquor, or 40 liters of the two combined; or
(3) The amount of fortified wine or spirituous liquors specified on the purchase-transportation permit for a mixed beverage permittee.
(4) A keg of malt beverage for off-premises consumption."
SECTION 2. G.S. 18B-303(a) reads as rewritten:
"(a) Purchases Allowed. - Without a permit, a person may purchase at one time:
(1) Not more than 80 liters of malt beverages, except draft malt beverages in kegs for off-premises consumption. For purchase of a keg of malt beverages for off-premises consumption the permit required by G.S. 18B-403(a)(4) must first be obtained;
(2) Any amount of draft malt beverages by a permittee in kegs for on-premise consumption;
(3) Not more than 50 liters of unfortified wine;
(4) Not more than eight liters of either fortified wine or spirituous liquor, or eight liters of the two combined."
PART II. to make pretrial civil revocation remain in effect until the trial and appeal of all charges and to affect the payment of the limited driving privilege restoration fee and to provide for the forfeiture of certain motor vehicles.
SECTION 3. Chapter 20 of the General Statutes is amended by adding a new section to read:
"§ 20-5A. Purpose of this chapter.
The safe operation and use of vehicles and motor vehicles is necessary for protection of the safety and health of the citizens of this State as well as their property. The issuance, denial, cancellation, suspension, and revocation of the license to drive and the regulation of the operation of vehicles, registration of vehicles, and the regulation of the use of the highways and public vehicular areas are essential to protect the citizens of this State. The issuance, denial, cancellation, suspension, and revocation of the license to drive or the registration of a vehicle is declared a matter of highway safety to be implemented by the Division in accordance with the laws of this Chapter. The issuance, denial, cancellation, suspension, and revocation of the license to drive or the registration of a vehicle is not intended to be part of the punishment of a person who is convicted of a crime."
SECTION 4. G.S. 20-16.5 reads as rewritten:
"§ 20-16.5. Immediate civil license revocation for certain persons charged with implied-consent offenses.
(a) Definitions. - As used in this section the following words and phrases have the following meanings:
(1) Charging
Officer. - As described in G.S. 20-16.2(a1).
(2) Clerk. - As defined in G.S. 15A-101(2).
(3) Judicial Official. - As defined in G.S. 15A-101(5).
(4) Revocation Report. - A
sworn statement by a charging law enforcement officer and a
chemical analyst containing facts indicating that the conditions of subsection
(b) have been met, and whether the person has a pending offense for which the
person's license had been or is revoked under this section. When one chemical
analyst analyzes a person's blood and another chemical analyst informs a person
of his rights and responsibilities under G.S. 20-16.2, the report must
include the statements of both analysts.
(5) Surrender of a Driver's License. - The act of turning over to a court or a law-enforcement officer the person's most recent, valid driver's license or learner's permit issued by the Division or by a similar agency in another jurisdiction, or a limited driving privilege issued by a North Carolina court. A person who is validly licensed but who is unable to locate his license card may file an affidavit with the clerk setting out facts that indicate that he is unable to locate his license card and that he is validly licensed; the filing of the affidavit constitutes a surrender of the person's license.
(b) Revocations for
Persons Who Refuse Chemical Analyses or Who Are Charged With Certain Implied-Consent
Offenses. - A person's driver's license is subject to revocation under this
section if:if all of the following apply:
(1) A charging law
enforcement officer has reasonable grounds to believe that the person has
committed an offense subject to the implied-consent provisions of G.S. 20-16.2;G.S.
20-16.2.
(2) The person is charged
with that offense as provided in G.S. 20-16.2(a);G.S. 20-16.2(a).
(3) The charging officer
and the chemical analyst comply with the procedures of G.S. 20-16.2 and
G.S. 20-139.1 in requiring the person's submission to or procuring a
chemical analysis; andanalysis.
(4) The person:
following apply to the person:
a. Willfully
He or she refuses to submit to the chemical analysis;analysis.
b. Has He
or she has an alcohol concentration of 0.08 or more within a relevant time
after the driving;driving.
c. Has He
or she has an alcohol concentration of 0.04 or more at any relevant time
after the driving of a commercial motor vehicle; orvehicle.
d. Has He
or she has any alcohol concentration at any relevant time after the driving
and the person is under 21 years of age.
(b1) Precharge Test Results
as Basis for Revocation. - Notwithstanding the provisions of subsection (b), a
person's driver's license is subject to revocation under this section if:
(1) The person
requests a precharge chemical analysis pursuant to G.S. 20-16.2(i); and
(2) The person
has:
a. An
alcohol concentration of 0.08 or more at any relevant time after driving;
b. An
alcohol concentration of 0.04 or more at any relevant time after driving a
commercial motor vehicle; or
c. Any
alcohol concentration at any relevant time after driving and the person is
under 21 years of age; and
(3) The person is
charged with an implied-consent offense.
(c) Duty of Charging Officers
and Chemical Analysts to Report to Judicial Officials. - If a person's driver's
license is subject to revocation under this section, the charging law
enforcement officer and the chemical analyst must execute a revocation
report. If the person has refused to submit to a chemical analysis, a copy of
the affidavit to be submitted to the Division under G.S. 20-16.2(c) may be
substituted for the revocation report if it contains the information required
by this section. It is the specific duty of the charging officer to make sure
that the report is expeditiously filed with a judicial official as required by
this section.
(d) Which Judicial Official Must Receive Report. - The judicial official with whom the revocation report must be filed is:
(1) The judicial official conducting the initial appearance on the underlying criminal charge if:
a. No revocation report has previously been filed; and
b. At the time of the initial appearance the results of the chemical analysis, if administered, or the reports indicating a refusal, are available.
(2) A judicial official conducting any other proceeding relating to the underlying criminal charge at which the person is present, if no report has previously been filed.
(3) The clerk of
superior court in the county in which the underlying criminal charge has been
brought Division if subdivisions (1) and (2) are not applicable at
the time the charging officer must file the report.
(e) Procedure if Report
Filed with Judicial Official When Person Is Present. - If a properly executed
revocation report concerning a person is filed with a judicial official when
the person is present before that official, the judicial official shall, after
completing any other proceedings involving the person, determine whether there
is probable cause to believe that each of the conditions of subsection (b) has
been met. If he determines that there is such probable cause, he shall enter an
order revoking the person's driver's license for the period required in this
subsection. The judicial official shall order the person to surrender his
license and if necessary may order a law-enforcement officer to seize the
license. The judicial official shall give the person a copy of the revocation
order. In addition to setting it out in the order the judicial official shall
personally inform the person of his right to a hearing as specified in
subsection (g), and that his license remains revoked pending the hearing. The
revocation under this subsection begins at the time the revocation order is
issued and continues until the person's license has been surrendered for the
period specified in this subsection, and the person has paid the applicable costs.
The period of revocation is 30 days, if there are no pending offenses for
which the person's license had been or is revoked under this section. If at the
time of the current offense, the person has one or more pending offenses for
which his license had been or is revoked under this section, the The revocation
shall remain in effect until a final judgment, including all appeals, has been
entered for the current offense and for all pending offenses. In no event, may
the period of revocation under this subsection be less than 30 days. If within
five working days of the effective date of the order, the person does not
surrender his license or demonstrate that he is not currently licensed, the
clerk shall immediately issue a pick-up order. The pick-up order shall be
issued to a member of a local law-enforcement agency if the charging officer
was employed by the agency at the time of the charge and the person resides in
or is present in the agency's territorial jurisdiction. In all other cases, the
pick-up order shall be issued to an officer or inspector of the Division. A
pick-up order issued pursuant to this section is to be served in accordance
with G.S. 20-29 as if the order had been issued by the Division.
(f) Procedure if
Report Filed with Clerk of Court Division When Person Not
Present. - When a clerk receives a properly executed report under subdivision
(d)(3) and the person named in the revocation report is not present before
the clerk, the clerk it shall determine whether there is probable
cause to believe that each of the conditions of subsection (b) has been met.
For purposes of this subsection, a properly executed report under subdivision
(d)(3) may include a sworn statement by the charging officer along with an
affidavit received directly by the Clerk Division from the
chemical analyst. If he determines that there is such probable cause, he shall
mail to the person a revocation order by first-class mail. The order shall
direct that the person on or before the effective date of the order either surrender
his license to the clerk Division or appear before the clerk
Division and demonstrate that he is not currently licensed, and the
order shall inform the person of the time and effective date of the revocation
and of its duration, of his right to a hearing as specified in subsection (g),
and that the revocation remains in effect pending the hearing. Revocation
orders mailed under this subsection become effective on the fourth day after
the order is deposited in the United States mail. If within five working days
of the effective date of the order, the person does not surrender his license
to the clerk Division or appear before the clerk Division
to demonstrate that he is not currently licensed, the clerk Division
shall immediately issue a pick-up order. The pick-up order shall be issued
and served in the same manner as specified in subsection (e) for pick-up orders
issued pursuant to that subsection. A revocation under this subsection begins
at the date specified in the order and continues until the person's license has
been revoked for the period specified in this subsection and the person has
paid the applicable costs. If the person has no pending offenses for which
his license had been or is revoked under this section, the period of revocation
under this subsection is:
(1) Thirty days
from the time the person surrenders his license to the court, if the surrender
occurs within five working days of the effective date of the order; or
(2) Thirty days
after the person appears before the clerk and demonstrates that he is not
currently licensed to drive, if the appearance occurs within five working days
of the effective date of the revocation order; or
(3) Forty-five
days from the time:
a. The
person's drivers license is picked up by a law-enforcement officer following
service of a pick-up order; or
b. The
person demonstrates to a law-enforcement officer who has a pick-up order for
his license that he is not currently licensed; or
c. The
person's drivers license is surrendered to the court if the surrender occurs
more than five working days after the effective date of the revocation order;
or
d. The
person appears before the clerk to demonstrate that he is not currently
licensed, if he appears more than five working days after the effective date of
the revocation order.
If at the time of the current offense, the person has one or
more pending offenses for which his license had been or is revoked under this
section, the The revocation shall remain in effect until a final
judgment, including all appeals, has been entered for the current offense and
for all pending offenses. In no event may the period of revocation for the
current offense be less than the applicable period of revocation in subdivision
(1), (2), or (3) of this subsection. When a pick-up order is issued, it shall
inform the person of his right to a hearing as specified in subsection (g), and
that the revocation remains in effect pending the hearing. An officer serving a
pick-up order under this subsection shall return the order to the court
indicating the date it was served or that he was unable to serve the order. If
the license was surrendered, the officer serving the order shall deposit it
with the clerk within three days of the surrender.
(g) Hearing before
Magistrate or Judge if Person Contests Validity of Revocation. - A person
whose license is revoked under this section may request in writing a hearing to
contest the validity of the revocation. The request may be made at the time of
the person's initial appearance, or within 10 days of the effective date of the
revocation to the clerk or a magistrate designated by the clerk, and may
specifically request that the hearing be conducted by a district court judge. Division
in a manner required by the Division. The Administrative Office of the Courts
must Courts, in consultation with the Division, shall develop a
hearing request form for any person requesting a hearing. hearing and
which includes the filing of the revocation report forms along with the hearing
request. Unless a district court judge is requested, the hearing must be
conducted within the county by a magistrate assigned by the chief district
court judge to conduct such hearings. If the person requests that a district
court judge hold the hearing, the hearing must be conducted within the district
court district as defined in G.S. 7A-133 by a district court judge
assigned to conduct such hearings. The revocation remains in effect pending
the hearing, but the hearing must shall be held within three
working days following the request if the hearing is before a magistrate or within
five working days if the hearing is before a district court judge. days.
The request for the hearing must shall specify the grounds
upon which the validity of the revocation is challenged and the hearing must be
limited to the grounds specified in the request. A witness may submit his
evidence by affidavit unless he is subpoenaed to appear. Any person who appears
and testifies is subject to questioning by the judicial official
conducting the hearing, and the judicial official may adjourn the
hearing to seek additional evidence if he is not satisfied with the accuracy or
completeness of evidence. The person contesting the validity of the revocation
may, but is not required to, testify in his own behalf. Unless contested by the
person requesting the hearing, the judicial official may accept as true
any matter stated in the revocation report. If any relevant condition under
subsection (b) is contested, the judicial official must find by the
greater weight of the evidence that the condition was met in order to sustain
the revocation. At the conclusion of the hearing the judicial official
must enter an order sustaining or rescinding the revocation. The judicial official's
findings are without prejudice to the person contesting the revocation and to
any other potential party as to any other proceedings, civil or criminal, that
may involve facts bearing upon the conditions in subsection (b) considered by
the judicial official. The decision of the judicial official is
final and may not be appealed in the General Court of Justice. may be
appealed to Superior Court on the record. If the hearing is not held and
completed within three working days of the written request for a hearing
before a magistrate or within five working days of the written request
for a hearing before a district court judge, the judicial official must enter
an order rescinding the revocation, a temporary drivers license may be
issued until the hearing can be held, unless the person contesting the
revocation contributed to the delay in completing the hearing. If the person
requesting the hearing fails to appear at the hearing or any rescheduling
thereof after having been properly notified, he forfeits his right to a
hearing.
(h) Return of License. -
After the applicable period of revocation under this section, or if the magistrate
or judge orders the revocation is rescinded, the person whose
license was revoked may apply to the clerk Division for return of
his surrendered license. Unless the clerk finds that the person is not
eligible to use the surrendered license, license the Division shall he
must return it if:
(1) The applicable period of revocation has passed and the person has tendered payment for the costs under subsection (j); or
(2) The magistrate or
judge has ordered the revocation has been rescinded.
If the driver is required to have an ignition lock pursuant to G.S. 20-16.6, the Division shall include the license restriction that limits the driver to operating a vehicle equipped with an ignition interlock. This restriction shall remain on the license until the driver has complied with G.S. 20-16.6. If the license has expired, he may return it to the person with a caution that it is no longer valid. Otherwise, if the person is not eligible to use the license and the license was issued by the Division or in another state, the clerk must mail it to the Division. If the person has surrendered his copy of a limited driving privilege and he is no longer eligible to use it, the clerk must make a record that he has withheld the limited driving privilege and forward that record to the clerk in the county in which the limited driving privilege was issued for filing in the case file. If the person's license is revoked under this section and under another section of this Chapter, the clerk must surrender the license to the Division if the revocation under this section can terminate before the other revocation; in such cases, the costs required by subsection (j) must still be paid before the revocation under this section is terminated.
(i) Effect of
Revocations. - A revocation under this section revokes a person's privilege to
drive in North Carolina whatever the source of his authorization to drive.
Revocations under this section are independent of and run concurrently with any
other revocations. No court imposing a period of revocation following
conviction of an offense involving impaired driving may give credit for any
period of revocation imposed under this section. A person whose license is
revoked pursuant to this section is not eligible to receive a limited driving
privilege except as specifically authorized by G.S. 20-16.5(p).G.S.
20-11.1.
(j) Costs. - Unless
the magistrate or judge orders the revocation rescinded, a person whose
license is revoked under this section must shall pay a fee of
fifty dollars ($50.00) as costs for the action before the person's license may
be returned under subsection (h).(h) or when the driver obtains a
limited driving privilege pursuant to G.S. 20-11.1. The costs
collected under this section shall be credited to the General Fund. Fifty
percent (50%) of the costs collected shall be used to fund a statewide chemical
alcohol testing program administered by the Injury Control Section of the
Department of Health and Human Services.
(k) Report to Division. -
Except as provided below, the clerk shall mail a report to the Division:
(1) If the
license is revoked indefinitely, within 10 working days of the revocation of
the license; and
(2) In all
cases, within 10 working days of the return of a license under this section or
of the termination of a revocation of the driving privilege of a person not
currently licensed.
The clerk shall electronically notify the Division within one
working day of any revocation under this section. This report shall
identify the person whose license has been revoked, specify the date on which
his license was revoked, and indicate whether the license has been returned.
The report must also provide, if applicable, whether the license is revoked
indefinitely. No report need be made to the Division, however, if there was a
surrender of the driver's license issued by the Division, a 30-day minimum
revocation was imposed, and the license was properly returned to the person
under subsection (h) within five working days after the 30-day period had
elapsed.provide any other information requested by the Division.
(l) Restoration Fee for Unlicensed Persons. - If a person whose license is revoked under this section has no valid license, he must pay the restoration fee required by G.S. 20-7 before he may apply for a license from the Division.
(m) Modification of Revocation
Order. - Any judicial official presiding over a proceeding under this
section The Division may issue a modified order if he it determines
that an inappropriate order has been issued.
(n) Exception
for Revoked Licenses. - Notwithstanding any other provision of this section, if
the judicial official required to issue a revocation order under this section
determines that the person whose license is subject to revocation under
subsection (b):
(1) Has a
currently revoked driver's license;
(2) Has no
limited driving privilege; and
(3) Will not
become eligible for restoration of his license or for a limited driving
privilege during the period of revocation required by this section,
the judicial official need not issue a revocation order under
this section. In this event the judicial official must file in the records of
the civil proceeding a copy of any documentary evidence and set out in writing
all other evidence on which he relies in making his determination.
(o) Designation of
Proceedings. - Proceedings under this section are civil actions, and must shall
be identified by the caption "In the Matter of ___" and filed as
directed by the Administrative Office of the Courts.
(p) Limited Driving
Privilege. - A person whose drivers license has been revoked for a specified
period of 30 or 45 days under this section may apply for a limited driving
privilege if: pursuant to G.S. 20-11.1 if at the time of the
alleged offense all of the following apply:
(1) At the time of the
alleged offense the The person held either a valid drivers license
or a license that had been expired for less than one year;year.
(2) Does The
person does not have an unresolved pending charge involving impaired
driving except the charge for which the license is currently revoked under this
section or additional convictions of an offense involving impaired driving
since being charged for the violation for which the license is currently
revoked under this section;section.
(3) The person's license
has been revoked for at least 10 days if the revocation is for 30 days or 30
days if the revocation is for 45 days; anddays.
(4) The person has
obtained a substance abuse assessment from a mental health facility and
registers for and agrees to participate is participating in any
recommended training or treatment program.
A person whose license has been indefinitely revoked under
this section may, after completion of 30 days under subsection (e) or the
applicable period of time under subdivision (1), (2), or (3) of subsection (f),
apply for a limited driving privilege. In the case of an indefinite revocation,
a judge of the division in which the current offense is pending may issue the
limited driving privilege only if the privilege is necessary to overcome undue
hardship and the person meets the eligibility requirements of G.S. 20-179.3,
except that the requirements in G.S. 20-179.3(b)(1)c. and G.S. 20-179.3(e)
shall not apply. Except as modified in this subsection, the provisions of
G.S. 20-179.3 relating to the procedure for application and conduct of the
hearing and the restrictions required or authorized to be included in the
limited driving privilege apply to applications under this subsection. Any
district court judge authorized to hold court in the judicial district is
authorized to issue such a limited driving privilege. A limited driving
privilege issued under this section authorizes a person to drive if the
person's license is revoked solely under this section. If the person's license
is revoked for any other reason, the limited driving privilege is invalid. "
SECTION 5. Chapter 20 of the General Statues is amended by adding a new section to read:
"§ 20-16.6. Seizure, impoundment, and restriction of motor vehicle registration for certain drivers charged with offenses involving impaired driving.
(a) Motor Vehicles Registration Plate Subject to Seizure. - The registration plate and card of a motor vehicle that is driven by a person who is charged with an implied consent offense is subject to seizure if any of the following apply to the person driving the motor vehicle:
(1) He or she has an alcohol concentration of 0.16 or more at any relevant time after operating the motor vehicle.
(2) He or she refuses to submit to a chemical analysis.
(3) He or she has a prior conviction for an offense involving impaired driving and that all of the following apply:
a. The conviction date was within 10 years; and
b. The person submits to a chemical analysis and the results are 0.08 or more, or 0.04 or more if operating a commercial motor vehicle or 0.01 or more if under age 21.
(b) Duty of Officer. - If the officer has probable cause to believe that the driver of a motor vehicle has committed an implied consent offense, the officer shall seize the registration plate and card of the motor vehicle driven by the defendant. The officer shall replace the seized registration plate with a temporary registration plate provided by the Division and indicate on the temporary registration plate the expiration date of 10 calendar days from the date of the plate seizure.
(c) When Registration Plate Shall Not Be Seized. - The officer shall not seize the registration plate and card if the officer determines prior to seizure of the motor vehicle registration plate and card that any of the following apply to the motor vehicle:
(1) It had been reported stolen.
(2) It is a rental vehicle registered to a company in the business of renting vehicles.
(3) It is registered in another state or jurisdiction.
(4) It was wrecked and appears to be a total loss.
Probable cause may be based on the officer's personal knowledge, reliable information conveyed by another officer, records of the Division, or other reliable source.
(d) Return of Registration Plate to Driver By Officer. - If after the driver of the motor vehicle is offered a chemical analysis, the driver does not meet the requirements of subsection (a) of this section, the chemical analysis selected is a blood or urine test and the results are not available, or the magistrate determines there is no probable cause for the charges, the officer shall return the registration plate and card to the driver by returning the registration plate and card to the driver upon release from custody or placing the plate with the personal effects of the driver at the jail or hospital. The officer may request the driver or property custodian at the jail or hospital to sign a receipt acknowledging return of the registration plate and card.
(e) Notification of Driver and Division. - If the registration plate and card are not returned to the driver as provided in subsection (d) of this section, the officer shall provide the driver with a notification of requirements for obtaining a new registration plate and card. The notification form shall be provided by the Division. The officer shall transmit the registration plate and card along with the revocation report(s) of the law enforcement officer and chemical analyst as provided in G.S. 20-16.5 to the Division in accordance with procedures established by the Division within 48 hours. The report forms shall be modified to include the necessary registration information.
(f) Report of Result of Blood or Urine Test. - An officer who receives a chemical analyst's affidavit or report of the blood or urine of a driver indicating that the registration plate and card are subject to seizure under subsection (a) of this section, shall send a copy of the revocation report(s) provided for in G.S. 20-16.5 to the Division in accordance with the Division's procedures.
(g) Duty of Division Upon Receipt of Plate and Revocation Reports. - Upon receipt of the registration plate and card and revocation reports, the Division shall determine if the registration plate and card were properly seized under subsection (a) of this section. If not, then the Division shall flag the registration file indicating that the registration plate was improperly seized and mail, within 72 hours, to the registered owner at the most recent address contained in the Division's records, by first-class mail, a copy of the procedure for obtaining new registration at no cost. A copy of this notification shall also be sent to the head of the law enforcement agency of the officer who seized the plate.
If the Division determines from the report(s) that the registration plate and card were properly seized, but that a registered owner was not driver of the vehicle, the Division shall revoke the registration of the vehicle effective 10 days from the date of the seizure and mail to the registered owner at the most recent address contained in the Division's records, by first-class mail, within 72 hours, a copy of the procedure for obtaining a new registration.
If the Division determines from the report(s) that the registration plate and card were properly seized and that a registered owner was the driver of the vehicle, the Division shall revoke the registration of the vehicle effective 10 days from the date of the seizure. If the driver is the registered owner of any other vehicle, the Division shall also mail to the registered owner, within 72 hours, by first-class mail to the most recent address contained in the Division's records a notice that the registration on all vehicles registered in the driver's name will be revoked effective 10 days from the date specified in the letter, which shall be four days after mailing, if the driver does not equip all registered vehicles with an ignition interlock in accordance with this section. The Division shall indicate in the registration file of all vehicles owned by the driver and require any person registering any of the vehicles to sign an acknowledgment that the driver is not allowed to operate the vehicle unless it is equipped with an ignition interlock and the driver has a valid license. The acknowledgment shall also inform the new registered owner that a violation of this provision shall result in revocation of the registration of all vehicles registered in the owner's name.
(h) Duty of Division Upon Receipt of Blood or Urine Test Results. - Upon receipt of revocation reports of a blood or urine test, the Division shall determine if the motor vehicle registration plate and card are subject to seizure under this section. If so and a registered owner was the driver of the vehicle, the Division shall notify the registered owner that he must surrender his registration plate or show proof of installation of an ignition interlock in accordance with this section within 10 days of the date specified in the letter, which shall be four days after mailing, and pay a fee of fifty dollars ($50.00). The letter shall outline the procedure for obtaining the ignition interlock and surrendering the registration plate.
If a registered owner was not the driver of the vehicle, then the Division shall notify the registered owner that the owner's vehicle registration is subject to cancellation if the registered owner allows the driver to operate the vehicle without a valid license, or fails to return the signed acknowledgment and pay a fee of fifty dollars ($50.00), and if the driver is impaired when driving the vehicle, the vehicle is subject to seizure and forfeiture. This letter shall require the registered owner(s) to sign and return to the Division an acknowledgment that the registered owner will not allow the driver to operate the vehicle unless properly licensed and the required fee has been paid. The Division shall enter into its records that this acknowledgment was sent. If the signed acknowledgment is not returned, the registration of the vehicle shall be cancelled. If the acknowledgment is signed and returned, the Division shall enter the acknowledgment in its records and make this information available to law enforcement officers.
(i) Issuance of New Registration. - A registered owner of a vehicle who was the driver of the vehicle when the vehicle registration plate was seized shall not be allowed to register any vehicle unless all vehicles are equipped with ignition interlock in accordance with the procedures of G.S. 20-17.8 and he or she pays a fee of fifty dollars ($50.00) and shows a valid license and proof of insurance. If the registered owner who was the driver of the vehicle transfers ownership to another, the person registering the vehicle shall be required to sign an acknowledgment as provided in this section.
A registered owner of a vehicle who was not the driver of the vehicle when the vehicle registration plate was seized shall not be allowed to register any vehicle unless all registered owners sign the acknowledgment provided for in this section, show a valid license, show proof of insurance, and pay a fee of fifty dollars ($50.00).
(j) Length of Time for Ignition Interlock. - When an ignition interlock is required under this section, the Division shall not remove the restriction on registration of the vehicle and drivers license until all of the following have been met:
(1) The driver has successfully completed the required level of substance abuse treatment required by the substance abuse assessment.
(2) The driver has not attempted to start the vehicle with any amount of alcohol in his system for at least four months as shown by the records of the ignition interlock.
(3) The driver does not have any unresolved pending motor vehicle law charges.
(4) The driver is not required to have an ignition interlock by any other provision of law.
(5) The driver shows proof of insurance.
The time that the ignition interlock has been installed under this section shall be applied towards the requirements of an ignition interlock required by G.S. 20-17.8.
(k) Indigent Offenders. - If the Division determines that the driver is indigent and the sole supporter of his household and that the vehicle is essential to the driver working, the Division may provide the ignition interlock and plate without costs.
SECTION 6. The catchline of G.S. 20-28.2 reads as rewritten:
"§ 20-28.2.
Forfeiture of motor vehicle for impaired driving after impaired driving license
revocation.revocation or driving without an ignition interlock and
revoked registration."
SECTION 7. G.S. 20-28.2(b) reads as rewritten:
"(b) When Motor Vehicle
Becomes Property Subject to Order of Forfeiture. - If at a sentencing hearing
for the underlying offense involving impaired driving, driving or a
violation of G.S. 20-28.10, at a separate hearing after conviction of
the defendant, or at a forfeiture hearing held at least 60 days after the
defendant failed to appear at the scheduled trial for the underlying offense
and the defendant's order of arrest for failing to appear has not been set
aside, the judge determines by the greater weight of the evidence that the
defendant is guilty of an offense involving impaired driving and that the
defendant's license was revoked pursuant to an impaired driving license
revocation as defined in subsection (a) of this section, section or
the defendant violated G.S. 20-28.10, the motor vehicle that was
driven by the defendant at the time the defendant committed the offense becomes
property subject to an order of forfeiture."
SECTION 8. The catchline of G.S. 20-28.3 reads as rewritten:
"§ 20-28.3.
Seizure, impoundment, forfeiture of motor vehicles for offenses involving
impaired driving while license revoked.revoked or driving without an
ignition interlock and revoked registration."
SECTION 9. G.S. 20-28.3(a) reads as rewritten:
"(a) Motor Vehicles Subject to Seizure. - A motor vehicle that is driven by a person who is charged with an offense involving impaired driving is subject to seizure if at the time of the violation the drivers license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation as defined in G.S. 20-28.2(a). A motor vehicle that is driven by a person who is charged with a violation of G.S. 20-28.10 is subject to seizure under this subsection."
SECTION 10. Chapter 20 of the General Statutes is amended by adding a new section to read:
"§ 20-28.10. Unlawful to drive without ignition interlock.
Any person who drives a motor vehicle upon the highways of the State without an installed and operable ignition interlock when required by this Chapter and the registration of the motor vehicle is revoked pursuant to G.S. 20-16.6, is guilty of a Class 1 misdemeanor. Upon conviction, the person's license shall be revoked for a period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense. Upon a conviction of violating this section, the defendant shall at a minimum be sentenced to either 30-day house arrest or seven days of jail time in the discretion of the court, and this sentence shall not be suspended or deferred."
PART III. MODIFYING THE STATUTES ON CHECKING STATIONS AND ROADBLOCKS
SECTION 11. G.S. 20-16.3A reads as rewritten:
"§ 20-16.3A.
Impaired driving checks.Checking stations and roadblocks.
(a) A law-enforcement
agency may make impaired driving checks of drivers of vehicles on highways
and public vehicular areas if the agency: conduct checking stations to
determine compliance with the provisions of this Chapter. If the agency is
conducting a checking station for the purposes of determining compliance with
this Chapter, it shall:
(1) Develops a
systematic plan in advance that takes into account the likelihood of detecting
impaired drivers, traffic conditions, number of vehicles to be stopped, and the
convenience of the motoring public.
(2)(1) Designates Designate in
advance the pattern both for stopping vehicles and for requesting drivers that
are stopped to submit to alcohol screening tests. to produce a
drivers license, a registration card, or insurance information. The plan
pattern need not be in writing and may include contingency
provisions for altering either pattern if actual traffic conditions are
different from those anticipated, but no individual officer may be given
discretion as to which vehicle is stopped or, of the vehicles stopped, which
driver is requested to submit to an alcohol screening test.to produce
a drivers license, a registration card, or insurance information.
(3)(2) Marks the area in which checks
are conducted to advise Advise the public that an authorized impaired
driving check checking station is being made.operated by
having at a minimum one law enforcement vehicle with its blue lights in
operation during the conducting of the checking station.
An officer who determines there is a reasonable suspicion that the driver has violated a provision of this chapter or any other provision of law may detain the driver to further investigate in accordance with law. The operator of any vehicle stopped at a checking station established under this subsection may be requested to submit to an alcohol screening test under G.S. 20-16.3 if during the course of the stop the officer determines the driver had previously consumed alcohol or has an open container of alcoholic beverage in the vehicle. The officer so requesting shall consider the results of any alcohol screening test or the driver's refusal in determining if there is reasonable suspicion to investigate further.
(b) Law enforcement agencies may conduct any other type of checking station or roadblock as long as it is established and operated in accordance with the provision of the United States Constitution and the Constitution of North Carolina.
This section does not prevent an officer from using the
authority of G.S. 20-16.3 to request a screening test if, in the course
of dealing with a driver under the authority of this section, he develops
grounds for requesting such a test under G.S. 20-16.3. Alcohol screening
tests and the results from them are subject to the provisions of subsections
(b), (c), and (d) of G.S. 20-16.3. This section does not limit the
authority of a law-enforcement officer or agency to conduct a license check
independently or in conjunction with the impaired driving check, to administer
psychophysical tests to screen for impairment, or to utilize roadblocks or
other types of vehicle checks or checkpoints that are consistent with the laws
of this State and the Constitution of North Carolina and of the United States.
No court shall suppress any evidence or dismiss any case unless the court
specifies in writing that there was a substantial and willful violation of the
provisions of this section and that the violation was not made in good faith
and that the violation amounts to a violation of the United States Constitution
or the Constitution of North Carolina."
PART IV. pROVIDING for implied consent pretrial and court proceedings
SECTION 12. Chapter 20 of the General Statutes is amended by adding a new Article to read:
"Article 2D.
"Implied Consent Offense Procedures.
"§ 20-38. Applicability.
The procedures set forth in this Article shall be followed for the investigation and processing of an implied consent offense as defined in G.S. 20-16.2. The trial procedures shall apply to any implied consent offense litigated in the District Court Division.
"§ 20-38.1. Investigation.
A law enforcement officer who is investigating an implied consent offense or a vehicle crash is authorized to seek evidence of the driver's impairment wherever the driver is located, and the provisions of the implied consent law apply even if the driver is located outside of this State or outside of the officer's territorial jurisdiction.
"§ 20-38.2. Police processing duties.
Upon the arrest of a person, with or without a warrant, but not necessarily in the order listed, a law enforcement officer:
(1) Shall inform the person arrested of the charges or a cause for the arrest.
(2) May take the person arrested to any place inside or outside the officer's territorial jurisdiction for one or more chemical analyses at the request of any law enforcement officer and for any evaluation by a law enforcement officer, medical professional, or other person to determine the extent or cause of the person's impairment.
(3) May take the person arrested to some other place for the purpose of having the person identified, to complete a crash report, or for any other lawful purpose.
(4) May take photographs and fingerprints in accordance with G.S. 15A-502.
(5) Shall take the person arrested before a judicial official for an initial appearance after completion of all investigatory procedures, crash reports, chemical analyses, and other procedures provided for in this subsection.
"§ 20-38.3. Initial appearance.
(a) Appearance Before a Magistrate. - Except as modified in this Article, a magistrate shall follow the procedures set forth in Article 24 of Chapter 15A of the General Statutes.
(1) A magistrate may hold an initial appearance at any place within the county and shall, to the extent practicable, be available at locations other than the courthouse when it will expedite the initial appearance.
(2) In determining whether is there is probable cause to believe a person is impaired, the magistrate may review all alcohol screening tests, chemical analyses, receive testimony from any law enforcement officer concerning impairment and the circumstances of the arrest, and observe the person arrested, and only if all of the evidence would lead a reasonable person to believe that a crime was not committed or that this person did not commit a crime, the magistrate shall not find probable cause.
(3) If there is a finding of probable cause, the magistrate shall consider whether the person is impaired to the extent that the provisions of G.S. 15A-534.2 should be imposed.
(4) The magistrate shall also:
a. Inform the person in writing of the established procedure to have others appear at the jail to observe his condition or to administer an additional chemical analysis if the person is unable to make bond; and
b. Require the person who is unable to make bond to list all persons he wishes to contact and telephone numbers on a form that sets forth the procedure for contacting the persons listed. A copy of this form shall be filed with the case file.
(b) The Administrative Office of the Courts shall adopt forms to implement this Article.
"§ 20-38.4. Facilities.
(a) The Chief District Court Judge, the Department of Health and Human Services, the District Attorney, and the Sheriff shall:
(1) Establish a written procedure for attorneys and witnesses to have access to the chemical analysis room.
(2) Approve the location of written notice of implied consent rights in the chemical analysis room in accordance with G.S. 20-16.2.
(3) Approve a procedure for access to a person arrested for an implied consent offense by family and friends or a qualified person contracted with by the arrested person to obtain blood or urine when the arrested person is held in custody and unable to obtain pretrial release from jail.
(b) Signs shall be posted explaining to the public the procedure for obtaining access to the room where the chemical analysis of the breath is administered and to any person arrested for an implied consent offense. The initial signs shall be provided by the Department of Transportation, without costs. The signs shall thereafter be maintained by the county for all county buildings and the county courthouse.
(c) If the instrument for performing a chemical analysis of the breath is located in a State or municipal building, then the head of the Highway Patrol for the county or the chief of police for the city or their designee shall be substituted for the sheriff when determining signs and access to the chemical analysis room. The signs shall be maintained by the owner of the building. When a breath testing instrument is in a motor vehicle or at a temporary location, the Department of Health and Human Services shall alone perform the above functions listed in subsection (a)(1) and (a)(2).
"§ 20-38.5. Motions and district court procedure.
(a) The defendant may move to suppress evidence or dismiss the charges only prior to trial, except the defendant may move to dismiss the charges for insufficient evidence at the close of the State's evidence and at the close of all of the evidence.
(b) A motion to suppress evidence or dismiss the charges made before trial shall be in writing, and a copy of the motion shall be served upon the State at least seven days prior to any hearing. The motion shall state the grounds upon which it is made. The motion shall be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated. The State may file an answer denying or admitting any of the allegations. A copy of the answer shall be served on the defendant's attorney, or on the defendant if he has no counsel.
(c) The judge shall summarily grant the motion to suppress evidence if either of the following conditions is met:
(1) The motion complies with the requirements of subsection (b) of this section, it states grounds which require exclusion of the evidence, and the State concedes the truth of allegations of fact which support the motion.
(2) The State stipulates that the evidence sought to be suppressed will not be offered in evidence in any criminal action or proceeding against the defendant.
(d) The judge may summarily deny the motion to suppress evidence if either of the following conditions is met:
(1) The motion is not in writing or does not allege a legal basis for the motion.
(2) The affidavit does not as a matter of law support the ground alleged.
(e) If the motion is not determined summarily, the judge shall make the determination after a hearing and finding of facts. Testimony at the hearing shall be under oath.
(f) The judge shall set forth in writing his findings of facts and conclusions of law.
"§ 20-38.6. Appeal to superior court.
(a) The State may appeal to superior court any district court pretrial order suppressing evidence or dismissing any charges. If there is a dispute about the findings of fact, the superior court shall not be bound by the findings of the district court but shall determine the matter de novo. Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes.
(b) The defendant may not appeal a denial of a pretrial motion to suppress or to dismiss, but may appeal upon conviction as provided by law.
(c) For any implied consent offense that is first tried in district court and that is appealed to superior court, the case shall only be remanded back to district court with the consent of the prosecutor and the superior court. When a case is remanded back to district court, the district court shall hold a new sentencing hearing and shall consider any new convictions, and if the defendant has any pending charges of offenses involving impaired driving, shall delay sentencing in the remanded case until all cases are resolved.
"§ 20-38.7. Remedy.
The failure to follow the procedures set forth in this Chapter or Articles 24, 25, or 26 of Chapter 15A of the General Statutes shall not be grounds to dismiss a criminal charge or any theory of a criminal charge or suppression of evidence unless a court finds that the violation was intentional and not in good faith, and as a result the defendant's rights under the United States Constitution or the Constitution of North Carolina were violated."
PART V. ALLOWING THE ADMISSIBILITY OF DRUG RECOGNITION EXPERTS, HGN TESTIMONY, AND OPINION AS TO SPEED BY AN ACCIDENT RECONSTRUCTION EXPERT
SECTION 13. Article 7 of Chapter 8C of the General Statutes is amended by adding a new rule of evidence to read:
Rule 707. Drug recognition expert and HGN testimony and opinion as to speed of an accident reconstruction expert.
(a) Results of Horizontal Gaze Nystagmus (HGN) Test. - Notwithstanding any provision of law, the results of a horizontal gaze nystagmus (HGN) test are admissible into evidence, and the opinion of the analyst is admissible as to whether the results are consistent with a chemical analysis or consistent with a person who is under the influence of a particular type or class of impairing substances, when the HGN test is administered by a person who has successfully completed training in HGN and administers the test in accordance with the training.
(b) Opinion of Drug Recognition Expert (DRE). - Notwithstanding any provision of law, the opinion of a DRE that a person is under the influence of one or more impairing substances, and the opinion as to the category of such impairing substance or substances is admissible in any court or administrative hearing when the DRE holds a current certification as a DRE issued by the Department of Health and Human Services and the DRE has examined the person in accordance with his training.
(c) Opinion As To Speed of a Vehicle. - Notwithstanding any other provision of law, any person who is found by a court to be an expert in accident reconstruction who has performed a reconstruction of a crash or has reviewed the report of investigation may give an opinion as to the speed of a vehicle even if the expert did not actually observe the vehicle moving.
Nothing contained in this section shall be construed to prohibit cross-examination of any person as to their opinions and the basis for the opinions and shall not limit other opinion testimony otherwise admissible under the rules of evidence or court decision."
PART VI. ALCOHOL SCREENING DEVICES
SECTION 14. G.S. 20-16.3 reads as rewritten:
"§ 20-16.3.
Alcohol screening tests required of certain drivers; approval of test devices
and manner of use by Commission for Health Services; Department of
Health and Human Services; use of test results or refusal.
(a) When Alcohol Screening Test May Be Required; Not an Arrest. - A law-enforcement officer may require the driver of a vehicle to submit to an alcohol screening test within a relevant time after the driving if the officer has:
(1) Reasonable grounds to believe that the driver has consumed alcohol and has:
a. Committed a moving traffic violation; or
b. Been involved in an accident or collision; or
(2) An articulable and reasonable suspicion that the driver has committed an implied-consent offense under G.S. 20-16.2, and the driver has been lawfully stopped for a driver's license check or otherwise lawfully stopped or lawfully encountered by the officer in the course of the performance of the officer's duties.
Requiring a driver to submit to an alcohol screening test in accordance with this section does not in itself constitute an arrest.
(b) Approval of Screening
Devices and Manner of Use. - The Commission for Health Services Department
of Health and Human Services is directed to examine and approve devices
suitable for use by law-enforcement officers in making on-the- scene tests of
drivers for alcohol concentration. For each alcohol screening device or class
of devices approved, the Commission must Department shall adopt
regulations governing the manner of use of the device. For any alcohol
screening device that tests the breath of a driver, the Commission Department
is directed to specify in its regulations the shortest feasible minimum
waiting period that does not produce an unacceptably high number of false
positive test results.
(c) Tests Must Shall
Be Made with Approved Devices and in Approved Manner. - No screening test
for alcohol concentration is a valid one under this section unless the device
used is one approved by the Commission for Health Services Department
of Health and Human Services and the screening test is conducted in
accordance with the applicable regulations of the Commission Department
as to the manner of its use.
(d) Use of Screening Test
Results or Refusal by Officer. - The results of an alcohol screening test or a
driver's refusal to submit may be used by a law-enforcement officer, and are
admissible in a court, or an administrative agency in determining if there
are reasonable grounds for believingbelieving:
(1) thatThat
the driver has committed an implied-consent offense under G.S. 20-16.2.
G.S. 20-16.2; and
(2) That the
driver had consumed alcohol and that the driver had in his or her blood
previously consumed alcohol, but not to prove a particular alcohol
concentration. Negative or low results on the alcohol screening test may be
used in factually appropriate cases by the officer, a court, or an
administrative agency in determining whether a person's alleged impairment is
caused by an impairing substance other than alcohol. Except as provided in
this subsection, the results of an alcohol screening test may not be admitted
in evidence in any court or administrative proceeding. "
PART VII. CLARIFYING PER SE OFFENSES
SECTION 15. G.S. 20-138.1 reads as rewritten:
"§ 20-138.1. Impaired driving.
(a) Offense. - A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed
sufficient alcohol that he has, submits to a chemical analysis and
the result is 0.08 or more at any relevant time after the driving, an
alcohol concentration of 0.08 or more.driving; or
(3) With any amount of a Schedule I or II controlled substance, as listed in G.S. 90-89 or G.S. 90-90, or its metabolites in his blood or urine.
(b) Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.
(c) Pleading. - In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.
(d) Sentencing Hearing
and Punishment. - Impaired driving as defined in this section is a misdemeanor.
Upon conviction of a defendant of impaired driving, the presiding judge must
shall hold a sentencing hearing and impose punishment in accordance
with G.S. 20-179.
(e) Exception. -
Notwithstanding the definition of "vehicle" pursuant to G.S. 20-4.01(49),
for purposes of this section the word "vehicle" does not include a
horse, bicycle, or lawnmower."
SECTION 16. G.S. 20-138.2 reads as rewritten:
"§ 20-138.2. Impaired driving in commercial vehicle.
(a) Offense. - A person commits the offense of impaired driving in a commercial motor vehicle if he drives a commercial motor vehicle upon any highway, any street, or any public vehicular area within the State:
(1) While under the influence of an impairing substance; or
(2) After having consumed
sufficient alcohol that he has, submits to a chemical analysis and
the result is 0.04 or more; or at any relevant time after the driving,
an alcohol concentration of 0.04 or more.
(3) With any amount of a Schedule I or II controlled substance, as listed in G.S. 90-89 or G.S. 90-90, or its metabolites in his blood or urine.
(b) Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.
(c) Pleading. - To charge a violation of this section, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges the defendant drove a commercial motor vehicle on a highway, street, or public vehicular area while subject to an impairing substance.
(d) Implied Consent Offense. - An offense under this section is an implied consent offense subject to the provisions of G.S. 20-16.2. The provisions of G.S. 20-139.1 shall apply to an offense committed under this section.
(e) Punishment. - The offense in this section is a misdemeanor and any defendant convicted under this section shall be sentenced under G.S. 20-179. This offense is not a lesser included offense of impaired driving under G.S. 20-138.1, and if a person is convicted under this section and of an offense involving impaired driving under G.S. 20-138.1 arising out of the same transaction, the aggregate punishment imposed by the Court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S. 20-138.1.
(f) Repealed by Session Laws 1991, c. 726, s. 19.
(g) Chemical Analysis
Provisions. - The provisions of G.S. 20-139.1 shall apply to the offense
of impaired driving in a commercial motor vehicle."
PART VIII. felony death by vehicle and injury by vehicle
SECTION 17. G.S. 20-141.4 reads as rewritten:
"§ 20-141.4. Felony and misdemeanor death by vehicle.
(a) Repealed by Session Laws 1983, c. 435, s. 27.
(a1) Felony Death by Vehicle. - A person commits the offense of felony death by vehicle if he unintentionally causes the death of another person while engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2 and commission of that offense is the proximate cause of the death.
(a2) Misdemeanor Death by Vehicle. - A person commits the offense of misdemeanor death by vehicle if he unintentionally causes the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic, other than impaired driving under G.S. 20-138.1, and commission of that violation is the proximate cause of the death.
(a3) Felony Serious Injury by Vehicle. - A person commits the offense of serious injury by vehicle if he unintentionally causes serious injury to another person while engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and the commission of the offense is the proximate cause of the serious injury.
(b) Punishments. - Felony
death by vehicle is a Class G D felony. Felony serious injury
by vehicle is a Class E felony. Misdemeanor death by vehicle is a Class 1
misdemeanor.
(c) No Double Prosecutions. - No person who has been placed in jeopardy upon a charge of death by vehicle may be prosecuted for the offense of manslaughter arising out of the same death; and no person who has been placed in jeopardy upon a charge of manslaughter may be prosecuted for death by vehicle arising out of the same death."
PART IX. clarification of impaired driving offenses
SECTION 18. G.S. 20-4.01 reads as rewritten:
"§ 20-4.01. Definitions.
Unless the context requires otherwise, the following definitions apply throughout this Chapter to the defined words and phrases and their cognates:
…
(32) Public Vehicular Area. - Any area within the State of North Carolina that meets one or more of the following requirements:
a. The area is
generally open to and used by the public for vehicular traffic,
traffic at any time, including by way of illustration and not
limitation any drive, driveway, road, roadway, street, alley, or parking lot
upon the grounds and premises of any of the following:
1. Any public or private hospital, college, university, school, orphanage, church, or any of the institutions, parks or other facilities maintained and supported by the State of North Carolina or any of its subdivisions.
2. Any service
station, drive-in theater, supermarket, store, restaurant, or office building,
or any other business, residential, or municipal establishment providing
parking space for customers, patrons, or the public.whether the
business or establishment is open or closed.
3. Any property owned by the United States and subject to the jurisdiction of the State of North Carolina. (The inclusion of property owned by the United States in this definition shall not limit assimilation of North Carolina law when applicable under the provisions of Title 18, United States Code, section 13).
b. The area is
a beach area used by the public for vehicular traffic.
c. The area is
a road opened to used by vehicular traffic within or leading to a
subdivision for use by subdivision residents, their guests, and members of
the public, subdivision, whether or not the subdivision roads have
been offered for dedication to the public.
d. The area is
a portion of private property used for by vehicular traffic and
designated by the private property owner as a public vehicular area in
accordance with G.S. 20-219.4."
SECTION 19. G.S. 20-138.1 reads as rewritten:
"§ 20-138.1. Impaired driving.
(a) Offense. - A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed
sufficient alcohol that he has, submits to a chemical analysis and
the result is 0.08 or more at any relevant time after the driving, an
alcohol concentration of 0.08 or more.driving.
(3) With any amount of a Schedule I or II controlled substance, as listed in G.S. 90-89 or G.S. 90-90, or its metabolites in his blood or urine.
(b) Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.
(c) Pleading. - In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.
(d) Sentencing Hearing
and Punishment. - Impaired driving as defined in this section is a misdemeanor.
Upon conviction of a defendant of impaired driving, the presiding judge must
shall hold a sentencing hearing and impose punishment in accordance
with G.S. 20-179.
(e) Exception. -
Notwithstanding the definition of "vehicle" pursuant to G.S. 20-4.01(49),
for purposes of this section the word "vehicle" does not include a
horse, bicycle, or lawnmower."
SECTION 20. G.S. 20-138.2 reads as rewritten:
"§ 20-138.2. Impaired driving in commercial vehicle.
(a) Offense. - A person commits the offense of impaired driving in a commercial motor vehicle if he drives a commercial motor vehicle upon any highway, any street, or any public vehicular area within the State:
(1) While under the influence of an impairing substance; or
(2) After having consumed
sufficient alcohol that he has, submits to a chemical analysis and
the result is 0.04, at any relevant time after the driving, an alcohol
concentration of 0.04 or more.driving.
(3) With any amount of a Schedule I or II controlled substance, as listed in G.S. 90-89 or G.S. 90-90, or its metabolites in his blood or urine.
(a1) In order to prove the gross vehicle weight rating of a vehicle as defined in G.S. 20-4.01(12b), the opinion of a person who observed the vehicle as to the weight, testimony of the gross vehicle weight rating affixed to the vehicle, the registered or declared weight shown on the Division's records pursuant to G.S. 20-26(b1), the gross vehicle weight rating as determined from the vehicle identification number, the listed gross weight publications from the manufacturer of the vehicle, or any other description or evidence shall be admissible.
(b) Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.
(c) Pleading. - To charge a violation of this section, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges the defendant drove a commercial motor vehicle on a highway, street, or public vehicular area while subject to an impairing substance.
(d) Implied Consent Offense. - An offense under this section is an implied consent offense subject to the provisions of G.S. 20-16.2. The provisions of G.S. 20-139.1 shall apply to an offense committed under this section.
(e) Punishment. - The offense in this section is a misdemeanor and any defendant convicted under this section shall be sentenced under G.S. 20-179. This offense is not a lesser included offense of impaired driving under G.S. 20-138.1, and if a person is convicted under this section and of an offense involving impaired driving under G.S. 20-138.1 arising out of the same transaction, the aggregate punishment imposed by the Court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S. 20-138.1.
(f) Repealed by Session Laws 1991, c. 726, s. 19.
(g) Chemical
Analysis Provisions. - The provisions of G.S. 20-139.1 shall apply to the
offense of impaired driving in a commercial motor vehicle."
SECTION 21. G.S. 20-138.2A reads as rewritten:
"§ 20-138.2A. Operating a commercial vehicle after consuming alcohol.
(a) Offense. - A person commits the offense of operating a commercial motor vehicle after consuming alcohol if the person drives a commercial motor vehicle, as defined in G.S. 20-4.01(3d)a. and b., upon any highway, any street, or any public vehicular area within the State while consuming alcohol or while alcohol remains in the person's body.
(a1) In order to prove the gross vehicle weight rating of a vehicle as defined in G.S. 20-4.01(12b), the opinion of a person who observed the vehicle as to the weight, testimony of the gross vehicle weight rating affixed to the vehicle, the registered or declared weight shown on the Division's records pursuant to G.S. 20-26(b1), the gross vehicle weight rating as determined from the vehicle identification number, the gross weight listed in publications from the manufacturer of the vehicle, or any other description or evidence shall be admissible.
(b) Implied-Consent Offense. - An offense under this section is an implied-consent offense subject to the provisions of G.S. 20-16.2. The provisions of G.S. 20-139.1 shall apply to an offense committed under this section.
(b1) Odor Insufficient. - The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver's body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.
(b2) Alcohol Screening Test. -
Notwithstanding any other provision of law, an alcohol screening test may be
administered to a driver suspected of violation of subsection (a) of this
section, and the results of an alcohol screening test or the driver's refusal
to submit may be used by a law enforcement officer, a court, or an
administrative agency in determining if alcohol was present in the driver's
body. No alcohol screening tests are valid under this section unless the device
used is one approved by the Commission for Health Services, Department
of Health and Human Services, and the screening test is conducted in
accordance with the applicable regulations of the Commission as to its manner
and use.
(c) Punishment. - Except as otherwise provided in this subsection, a violation of the offense described in subsection (a) of this section is a Class 3 misdemeanor and, notwithstanding G.S. 15A-1340.23, is punishable by a penalty of one hundred dollars ($100.00). A second or subsequent violation of this section is a misdemeanor punishable under G.S. 20-179. This offense is a lesser included offense of impaired driving of a commercial vehicle under G.S. 20-138.2.
(d) Second or Subsequent Conviction Defined. - A conviction for violating this offense is a second or subsequent conviction if at the time of the current offense the person has a previous conviction under this section, and the previous conviction occurred in the seven years immediately preceding the date of the current offense. This definition of second or subsequent conviction also applies to G.S. 20-17(a)(13) and G.S. 20-17.4(a)(6)."
SECTION 22. G.S. 20-138.2B(b2) reads as rewritten:
"(b2) Alcohol Screening Test. -
Notwithstanding any other provision of law, an alcohol screening test may be
administered to a driver suspected of violation of subsection (a) of this
section, and the results of an alcohol screening test or the driver's refusal
to submit may be used by a law enforcement officer, a court, or an
administrative agency in determining if alcohol was present in the driver's
body. No alcohol screening tests are valid under this section unless the device
used is one approved by the Commission for Health Services, Department
of Health and Human Services, and the screening test is conducted in
accordance with the applicable regulations of the Commission Department
as to its manner and use."
SECTION 23. G.S. 20-138.3 reads as rewritten:
"§ 20-138.3. Driving by person less than 21 years old after consuming alcohol or drugs.
(a) Offense. - It is unlawful for a person less than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has remaining in his body any alcohol or controlled substance previously consumed, but a person less than 21 years old does not violate this section if he drives with a controlled substance in his body which was lawfully obtained and taken in therapeutically appropriate amounts.
(b) Subject to Implied-Consent Law. - An offense under this section is an alcohol-related offense subject to the implied-consent provisions of G.S. 20-16.2. The provisions of G.S. 20-139.1 shall apply to an offense committed under this section.
(b1) Odor Insufficient. - The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver's body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.
(b2) Alcohol Screening Test. -
Notwithstanding any other provision of law, an alcohol screening test may be
administered to a driver suspected of violation of subsection (a) of this section,
and the results of an alcohol screening test or the driver's refusal to submit
may be used by a law enforcement officer, a court, or an administrative agency
in determining if alcohol was present in the driver's body. No alcohol
screening tests are valid under this section unless the device used is one
approved by the Commission for Health Services, Department of Health
and Human Services, and the screening test is conducted in accordance with
the applicable regulations of the Commission Department as to its
manner and use.
(c) Punishment; Effect
When Impaired Driving Offense Also Charged. - The offense in this section is
a Class 2 misdemeanor. shall be punished pursuant to G.S. 20-179. It
is not, in any circumstances, a lesser included offense of impaired driving
under G.S. 20-138.1, but if a person is convicted under this section and
of an offense involving impaired driving arising out of the same transaction,
the aggregate punishment imposed by the court may not exceed the maximum
applicable to the offense involving impaired driving, and any minimum
punishment applicable shall be imposed.
Notwithstanding any other provision of law, whenever any person who does not have any pending charges for violating Chapters 18B, 20, or 90 of the General Statutes and has not previously been convicted of violating this section, an offense involving impaired driving under any statute of the United States or any state relating to those substances included in Article 5 or 5A of Chapter 90 or to that paraphernalia included in Article 5B of Chapter 90 or a violation of Chapter 18B, pleads guilty to or is found guilty of a violation of this section, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation for a minimum of one year upon such reasonable terms and conditions as it may require. Notwithstanding the provisions of G.S. 15A-1342(c) or any other statute or law, to fulfill the terms and conditions of probation the court shall impose, at a minimum, all of the following conditions. The person shall:
(1) Obtain a substance abuse assessment within 30 days, and comply with education or treatment requirements recommended by the assessment.
(2) Not operate a motor vehicle for at least 90 days.
(3) Perform 50 hours of community service and pay the community service fee.
(4) Submit at reasonable times to warrantless searches by a probation officer of his or her person, vehicle, and premises including drug and alcohol screening and testing and pay the costs of such screening and tests.
(5) Not possess or consume any alcoholic beverage or controlled substance unless the controlled substance is lawfully prescribed to the person.
(6) Pay court costs and all fees.
(7) Not violate any law of this or any other state or the federal government.
(8) Remain gainfully employed or in school as a full-time student as determined by the probation officer.
(9) Not violate any other reasonable condition of probation.
Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the additional penalties imposed for second or subsequent convictions. Prior to entering a discharge and dismissal, the court shall determine if the person has been charged with or convicted of any other offense, including infractions. The discharge and dismissal shall not be entered unless the court finds that the person does not have any pending charges for violating any law of this State and has not during the period of probation violated a law of this State or been convicted of violating a provision of Chapter 18B, 20, 14, or 90 of the General Statutes of this State or a substantially similar provision of any other state or the federal government.
(d) Limited Driving
Privilege. - A person who is convicted of violating subsection (a) of this section
and whose drivers license is revoked solely based on that conviction may apply
for a limited driving privilege as provided in G.S. 20-179.3. This
subsection shall apply only if the person meets both of the following
requirements:
(1) Is 18, 19,
or 20 years old on the date of the offense.
(2) Has not
previously been convicted of a violation of this section.
The judge may issue the limited driving privilege only if the
person meets the eligibility requirements of G.S. 20-179.3, other than the
requirement in G.S. 20-179.3(b)(1)c. G.S. 20-179.3(e) shall not
apply. All other terms, conditions, and restrictions provided for in
G.S. 20-179.3 shall apply. G.S. 20-179.3, rather than this
subsection, governs the issuance of a limited driving privilege to a person who
is convicted of violating subsection (a) of this section and of driving while
impaired as a result of the same transaction. G.S. 20-11.1."
SECTION 24. G.S. 20-138.5(a) reads as rewritten:
"(a) A person commits the
offense of habitual impaired driving if he drives while impaired as defined in
G.S. 20-138.1 and has been convicted of three or more offenses involving
impaired driving as defined in G.S. 20-4.01(24a) within seven 10
years of the date of this offense."
SECTION 25. G.S. 20-138.5(c) reads as rewritten:
"(c) An offense under this section is an implied consent offense subject to the provisions of G.S. 20-16.2. The provisions of G.S. 20-139.1 shall apply to an offense committed under this section."
PART X. clarifying and simplifying the implied consent law
SECTION 26. G.S. 20-16.2 reads as rewritten:
"§ 20-16.2. Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.
(a) Basis for Charging
Officer to Require Chemical Analysis; Notification of Rights. - Any person who
drives a vehicle on a highway or public vehicular area thereby gives consent to
a chemical analysis if charged with an implied-consent offense. The charging
officer shall designate the type of chemical analysis to be administered, and
it may be administered when the officer Any law enforcement officer who has
reasonable grounds to believe that the person charged has committed the implied-consent
offense.offense may obtain a chemical analysis of the person.
Except as provided in this subsection or subsection (b),
before Before any type of chemical analysis is administered the
person charged shall be taken before a chemical analyst authorized to
administer a test of a person's breath or a law enforcement officer who is
authorized to administer chemical analysis of the breath, who shall inform
the person orally and also give the person a notice in writing that:
(1) The person has a
right to refuse to be tested.You have been charged with an implied
consent offense. Under the implied consent law you can refuse any test but your
drivers license will be revoked for at least one year and you will be required
to install an ignition interlock on your vehicle, plus an officer can compel
you to be tested under other laws.
(2) Refusal to
take any required test or tests will result in an immediate revocation of the
person's driving privilege for at least 30 days and an additional 12-month
revocation by the Division of Motor Vehicles.
(3)(2) The test results, or the fact of the
person'syour refusal, will be admissible in evidence at trial on
the offense charged.trial.
(4)(3) The person's Your driving
privilege will be revoked immediately for at least 30 days if:and
until your trial and any appeals if you refuse any test or the test result is a
0.08 or more, 0.04 if you were driving a commercial vehicle, or 0.01 if you are
under the age of 21.
a. The
test reveals an alcohol concentration of 0.08 or more;
b. The
person was driving a commercial motor vehicle and the test reveals an alcohol
concentration of 0.04 or more; or
c. The
person is under 21 years of age and the test reveals any alcohol concentration.
(5)(4) The person may choose a
qualified person to administer a chemical test or tests in addition to any test
administered at the direction of the charging officer.After you are
released, you may seek your own test in addition to this test.
(6)(5) The person has the right to You
may call an attorney for advice and select a witness to view for
him or her the testing procedures, procedures remaining after the
witness arrives, but the testing may not be delayed for these purposes
longer than 30 minutes from the time when the person is notified of his or
her of these rights. You must take the test at the end of 30
minutes even if you have not contacted an attorney or your witness has not
arrived.
If the charging officer or an arresting officer is authorized
to administer a chemical analysis of a person's breath, the charging officer or
the arresting officer may give the person charged the oral and written notice
of rights required by this subsection. This authority applies regardless of the
type of chemical analysis designated.
(a1) Meaning of Terms. - Under this
section, an "implied-consent offense" is an offense involving
impaired driving or an alcohol-related offense made subject to the procedures
of this section. A person is "charged" with an offense if the person
is arrested for it or if criminal process for the offense has been issued. A
"charging officer" is a law-enforcement officer who arrests the
person charged, lodges the charge, or assists the officer who arrested the
person or lodged the charge by assuming custody of the person to make the
request required by subsection (c) and, if necessary, to present the person to
a judicial official for an initial appearance.
(b) Unconscious Person
May Be Tested. - If a charging law enforcement officer has
reasonable grounds to believe that a person has committed an implied-consent
offense, and the person is unconscious or otherwise in a condition that makes
the person incapable of refusal, the charging law enforcement officer
may direct the taking of a blood sample by a person qualified under
G.S. 20-139.1 or may direct the administration of any other chemical
analysis that may be effectively performed. In this instance the notification
of rights set out in subsection (a) and the request required by subsection (c)
are not necessary.
(c) Request to Submit to
Chemical Analysis. - The charging A law enforcement officer, officer
or chemical analyst, in the presence of the chemical analyst who has
notified the person of his or her rights under subsection (a), must shall
designate the type of test or tests to be given and either may request the
person charged to submit to the type of chemical analysis designated. If the
person charged willfully refuses to submit to that chemical analysis, none may
be given under the provisions of this section, but the refusal does not
preclude testing under other applicable procedures of law.
(c1) Procedure for Reporting Results
and Refusal to Division. - Whenever a person refuses to submit to a chemical
analysis or a person's drivers license has an alcohol concentration restriction
and the results of the chemical analysis establish a violation of the
restriction, the charging officer and the chemical analyst must shall
without unnecessary delay go before an official authorized to administer
oaths and execute an affidavit(s) stating that:
(1) The person was charged with an implied-consent offense or had an alcohol concentration restriction on the drivers license;
(2) The charging
officer A law enforcement officer had reasonable grounds to believe
that the person had committed an implied-consent offense or violated the
alcohol concentration restriction on the drivers license;
(3) Whether the implied-consent offense charged involved death or critical injury to another person, if the person willfully refused to submit to chemical analysis;
(4) The person was notified of the rights in subsection (a); and
(5) The results of any
tests given or that the person willfully refused to submit to a chemical analysis
upon the request of the charging officer.analysis.
If the person's drivers license has an alcohol concentration
restriction, pursuant to G.S. 20-19(c3), and an officer has reasonable
grounds to believe the person has violated a provision of that restriction
other than violation of the alcohol concentration level, the charging officer
and chemical analyst shall complete the applicable sections of the affidavit
and indicate the restriction which was violated. The charging officer must
shall immediately mail the affidavit(s) to the Division. If the charging
officer is also the chemical analyst who has notified the person of the
rights under subsection (a), the charging officer may perform alone the
duties of this subsection.
(d) Consequences of
Refusal; Right to Hearing before Division; Issues. - Upon receipt of a properly
executed affidavit required by subsection (c1), the Division must shall
expeditiously notify the person charged that the person's license to drive
is revoked for 12 months, effective on the tenth calendar day after the mailing
of the revocation order unless, before the effective date of the order, the
person requests in writing a hearing before the Division. Except for the time
referred to in G.S. 20-16.5, if the person shows to the satisfaction of
the Division that his or her license was surrendered to the court, and remained
in the court's possession, then the Division shall credit the amount of time
for which the license was in the possession of the court against the 12-month
revocation period required by this subsection. If the person properly requests
a hearing, the person retains his or her license, unless it is revoked under
some other provision of law, until the hearing is held, the person withdraws
the request, or the person fails to appear at a scheduled hearing. The hearing
officer may subpoena any witnesses or documents that the hearing officer deems
necessary. The person may request the hearing officer to subpoena the charging
officer, the chemical analyst, or both to appear at the hearing if the person
makes the request in writing at least three days before the hearing. The person
may subpoena any other witness whom the person deems necessary, and the
provisions of G.S. 1A-1, Rule 45, apply to the issuance and service of all
subpoenas issued under the authority of this section. The hearing officer is
authorized to administer oaths to witnesses appearing at the hearing. The
hearing must shall be conducted in the county where the charge
was brought, and must shall be limited to consideration of
whether:
(1) The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;
(2) The charging A
law enforcement officer had reasonable grounds to believe that the person
had committed an implied-consent offense or violated the alcohol concentration
restriction on the drivers license;
(3) The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
(4) The person was notified of the person's rights as required by subsection (a); and
(5) The person willfully
refused to submit to a chemical analysis upon the request of the charging
officer.analysis.
If the Division finds that the conditions specified in this
subsection are met, it must shall order the revocation sustained.
If the Division finds that any of the conditions (1), (2), (4), or (5) is not
met, it must shall rescind the revocation. If it finds that
condition (3) is alleged in the affidavit but is not met, it must shall
order the revocation sustained if that is the only condition that is not
met; in this instance subsection (d1) does not apply to that revocation. If the
revocation is sustained, the person must shall surrender his or
her license immediately upon notification by the Division.
(d1) Consequences of Refusal in Case
Involving Death or Critical Injury. - If the refusal occurred in a case
involving death or critical injury to another person, no limited driving
privilege may be issued. The 12-month revocation begins only after all other
periods of revocation have terminated unless the person's license is revoked
under G.S. 20-28, 20-28.1, 20-19(d), or 20-19(e). If the revocation is
based on those sections, the revocation under this subsection begins at the
time and in the manner specified in subsection (d) for revocations under this
section. However, the person's eligibility for a hearing to determine if the
revocation under those sections should be rescinded is postponed for one year
from the date on which the person would otherwise have been eligible for such
a the hearing. If the person's driver's license is again revoked
while the 12-month revocation under this subsection is in effect, that
revocation, whether imposed by a court or by the Division, may only take effect
after the period of revocation under this subsection has terminated.
(e) Right to Hearing in
Superior Court. - If the revocation for a willful refusal is sustained after
the hearing, the person whose license has been revoked has the right to file a
petition in the superior court for a hearing de novo upon the issues listed
in subsection (d), in the same manner and under the same conditions as provided
in G.S. 20-25 except that the de novo hearing is conducted in the superior
court district or set of districts as defined in G.S. 7A-41.1 where the
charge was made.on the record. The superior court review shall be
limited to whether there is sufficient evidence in the record to support the
Commissioner's findings of fact and whether the conclusions of law are
supported by the findings of fact and whether the Commissioner committed an
error of law in revoking the license.
(e1) Limited Driving Privilege after
Six Months in Certain Instances. - A person whose driver's license has
been revoked under this section may apply for and a judge authorized to do
so by this subsection the Division may issue a limited driving
privilege if:
(1) At the time
of the refusal the person held either a valid drivers license or a license that
had been expired for less than one year;
(2) At the time
of the refusal, the person had not within the preceding seven years been
convicted of an offense involving impaired driving;
(3) At the time
of the refusal, the person had not in the preceding seven years willfully
refused to submit to a chemical analysis under this section;
(4) The implied-consent
offense charged did not involve death or critical injury to another person;
(5) The
underlying charge for which the defendant was requested to submit to a chemical
analysis has been finally disposed of:
a. Other
than by conviction; or
b. By
a conviction of impaired driving under G.S. 20-138.1, at a punishment
level authorizing issuance of a limited driving privilege under G.S. 20-179.3(b),
and the defendant has complied with at least one of the mandatory conditions of
probation listed for the punishment level under which the defendant was
sentenced;
(6) Subsequent
to the refusal the person has had no unresolved pending charges for or
additional convictions of an offense involving impaired driving;
(7) The person's
license has been revoked for at least six months for the refusal; and
(8) The person
has obtained a substance abuse assessment from a mental health facility and
successfully completed any recommended training or treatment program.
Except as modified in this subsection, the provisions of
G.S. 20-179.3 relating to the procedure for application and conduct of the
hearing and the restrictions required or authorized to be included in the
limited driving privilege apply to applications under this subsection. If the
case was finally disposed of in the district court, the hearing shall be
conducted in the district court district as defined in G.S. 7A-133 in
which the refusal occurred by a district court judge. If the case was finally
disposed of in the superior court, the hearing shall be conducted in the
superior court district or set of districts as defined in G.S. 7A-41.1 in
which the refusal occurred by a superior court judge. A limited driving
privilege issued under this section authorizes a person to drive if the
person's license is revoked solely under this section or solely under this
section and G.S. 20-17(2). If the person's license is revoked for any
other reason, the limited driving privilege is invalid.pursuant to
G.S. 20-11.1.
(f) Notice to Other
States as to Nonresidents. - When it has been finally determined under the
procedures of this section that a nonresident's privilege to drive a motor
vehicle in this State has been revoked, the Division must shall give
information in writing of the action taken to the motor vehicle administrator
of the state of the person's residence and of any state in which the person has
a license.
(g) Repealed by Session Laws 1973, c. 914.
(h) Repealed by Session Laws 1979, c. 423, s. 2.
(i) Right
to Chemical Analysis before Arrest or Charge. - A person stopped or questioned
by a law-enforcement officer who is investigating whether the person may have
committed an implied-consent offense may request the administration of a
chemical analysis before any arrest or other charge is made for the offense.
Upon this request, the officer shall afford the person the opportunity to have
a chemical analysis of his or her breath, if available, in accordance with the
procedures required by G.S. 20-139.1(b). The request constitutes the
person's consent to be transported by the law-enforcement officer to the place
where the chemical analysis is to be administered. Before the chemical analysis
is made, the person shall confirm the request in writing and shall be notified:
(1) That the
test results will be admissible in evidence and may be used against the person
in any implied-consent offense that may arise;
(2) That the
person's license will be revoked for at least 30 days if:
a. The
test reveals an alcohol concentration of 0.08 or more; or
b. The
person was driving a commercial motor vehicle and the test results reveal an
alcohol concentration of 0.04 or more; or
c. The
person is under 21 years of age and the test reveals any alcohol concentration.
(3) That if the
person fails to comply fully with the test procedures, the officer may charge
the person with any offense for which the officer has probable cause, and if
the person is charged with an implied-consent offense, the person's refusal to
submit to the testing required as a result of that charge would result in
revocation of the person's driver's license. The results of the chemical
analysis are admissible in evidence in any proceeding in which they are relevant."
PART XI. admissibility of chemical analyses
SECTION 27. G.S. 20-139.1 reads as rewritten:
"§ 20-139.1. Procedures governing chemical analyses; admissibility; evidentiary provisions; controlled-drinking programs.
(a) Chemical Analysis Admissible. - In any implied-consent offense under G.S. 20-16.2, a person's alcohol concentration or the presence of any other impairing substance in the person's body as shown by a chemical analysis is admissible in evidence. This section does not limit the introduction of other competent evidence as to a person's alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests.
(b) Approval of Valid
Test Methods; Licensing Chemical Analysts. - A The results of a chemical
analysis, to be valid, shall be analysis shall be deemed sufficient
evidence to prove a person's alcohol concentration. A chemical analysis of the
breath administered pursuant to the implied consent law is admissible in any
court or administration if it meets both of the following requirements:
(1) It is performed
in accordance with the provisions of this section. The chemical analysis
shall be performed according to methods approved by the Commission for Health
Services by an individual possessing rules of the Department of Health
and Human Services.
(2) The person
performing the analysis had, at the time of the analysis, a current permit
issued by the Department of Health and Human Services authorizing the person
to perform a test of the breath using the type of instrument employed. for
that type of chemical analysis.
For purposes of establishing compliance with subdivision
(b)(1) of this section, the court or administrative agency shall take notice of
the rules of the Department of Health and Human Services. For purposes of
establishing compliance with subdivision (b)(2) of this section, the court or
administrative agency shall take judicial notice of the list of permits issued
to the person performing the analysis, the type of instrument on which the
person is authorized to perform tests of the breath, and the date the permit
was issued. The Commission for Health Services may adopt rules approving
satisfactory methods or techniques for performing chemical analyses, and the Department
of Health and Human Services may ascertain the qualifications and competence of
individuals to conduct particular chemical analyses. analyses and the
methods for conducting chemical analyses. The Department may issue permits
to conduct chemical analyses to individuals it finds qualified subject to
periodic renewal, termination, and revocation of the permit in the Department's
discretion.
(b1) When Officer May Perform
Chemical Analysis. - Except as provided in this subsection, a chemical
analysis is not valid in any case in which it is performed by an arresting
officer or by a charging officer under the terms of G.S. 20-16.2. A
chemical analysis of the breath may be performed by an arresting officer or by
a charging officer when both of the following apply:
(1) The officer
possesses a current permit issued by the Department of Health and Human
Services for the type of chemical analysis.
(2) The officer
performs the chemical analysis by using an automated instrument that prints the
results of the analysis.
Any person possessing a current permit authorizing the person to perform chemical analysis may perform a chemical analysis.
(b2) Breath Analysis Results Inadmissible
if Preventive Maintenance Not Performed. Maintenance. - The
Department of Health and Human Services shall perform preventive maintenance on
breath testing instruments used for chemical analysis. A court or
administrative agency shall take judicial notice of the preventive maintenance
records of the Department. Notwithstanding the provisions of subsection
(b), the results of a chemical analysis of a person's breath performed in
accordance with this section are not admissible in evidence if:
(1) The defendant objects to the introduction into evidence of the results of the chemical analysis of the defendant's breath; and
(2) The defendant
demonstrates that, with respect to the instrument used to analyze the
defendant's breath, preventive maintenance procedures required by the
regulations of the Commission for Health Services Department of
Health and Human Services had not been performed within the time limits
prescribed by those regulations.
(b3) Sequential Breath Tests
Required. - By January 1, 1985, the regulations of the Commission for Health
Services The methods governing the administration of chemical
analyses of the breath shall require the testing of at least duplicate
sequential breath samples. The results of the chemical analysis of all
breath samples are admissible if the test results from any two consecutively
collected breath samples do not differ from each other by an alcohol
concentration greater than 0.01. Only the lower of the two test results of the
consecutively administered tests can be used to prove a particular alcohol
concentration. Those regulations must provide:
(1) A
specification as to the minimum observation period before collection of the
first breath sample and the time requirements as to collection of second and
subsequent samples.
(2) That the test
results may only be used to prove a person's particular alcohol concentration
if:
a. The
pair of readings employed are from consecutively administered tests; and
b. The
readings do not differ from each other by an alcohol concentration greater than
0.02.
(3) That when a
pair of analyses meets the requirements of subdivision (2), only the lower of
the two readings may be used by the State as proof of a person's alcohol
concentration in any court or administrative proceeding.
A person's refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under G.S. 20-16.2(c).
A person's refusal to give the second or subsequent breath sample shall make the result of the first breath sample, or the result of the sample providing the lowest alcohol concentration if more than one breath sample is provided, admissible in any judicial or administrative hearing for any relevant purpose, including the establishment that a person had a particular alcohol concentration for conviction of an offense involving impaired driving.
(b4) Introducing Routine
Records Kept as Part of Breath-Testing Program. - In civil and criminal
proceedings, any party may introduce, without further authentication, simulator
logs and logs for other devices used to verify a breath-testing instrument,
certificates and other records concerning the check of ampoules and of
simulator stock solution and the stock solution used in any other equilibration
device, preventive maintenance records, and other records that are routinely
kept concerning the maintenance and operation of breath-testing instruments. In
a criminal case, however, this subsection does not authorize the State to
introduce records to prove the results of a chemical analysis of the defendant
or of any validation test of the instrument that is conducted during that
chemical analysis.
(b5) Subsequent Tests Allowed. - A
person may be requested, pursuant to G.S. 20-16.2, to submit to a chemical
analysis of the person's blood or other bodily fluid or substance in addition
to or in lieu of a chemical analysis of the breath, in the discretion of the
charging a law enforcement officer. If a subsequent chemical
analysis is requested pursuant to this subsection, the person shall again be
advised of the implied consent rights in accordance with G.S. 20-16.2(a).
A person's willful refusal to submit to a chemical analysis of the blood or
other bodily fluid or substance is a willful refusal under G.S. 20-16.2.
(b6) The Department of Health and Human Services shall post on a webpage and file in each county a list of all persons who have a permit authorizing them to perform chemical analyses, the type of analyses that they can perform, the instruments that each person is authorized to operate and the effective dates of the permits, and records of preventive maintenance. A court shall take judicial notice of whether at the time of the chemical analysis, the chemical analyst possessed a permit authorizing the chemical analyst to perform a chemical analysis administered and whether preventive maintenance had been performed on the breath-testing instrument in accordance with Department rule.
(c) Withdrawal of Blood
and Urine for Chemical Analysis. - Notwithstanding any other
provision of law, When when a blood or urine test is
specified as the type of chemical analysis by the charging a law
enforcement officer, only a physician, registered nurse, emergency
medical technician, or other qualified person may shall withdraw
the blood sample. sample and obtain the urine sample and no further
authorization or approval is required. If the person withdrawing the blood or
collecting the urine requests written confirmation of the charging
officer's request for the withdrawal of blood, blood or collecting
the urine, the officer shall furnish it before blood is withdrawn. withdrawn
or urine collected. When blood is withdrawn or urine collected pursuant
to a charging law enforcement officer's request, neither the
person withdrawing the blood nor any hospital, laboratory, or other
institution, person, firm, or corporation employing that person, or contracting
for the service of withdrawing blood, may be held criminally or civilly liable
by reason of withdrawing that blood, except that there is no immunity from
liability for negligent acts or omissions.
The chemical analyst who analyzes the blood shall complete
an affidavit stating the results of the analysis on a form developed by the
Department of Health and Human Services and provide the affidavit to the
charging officer and the clerk of superior court in the county in which the
criminal charges are pending.
Evidence regarding the qualifications of the person who
withdrew the blood sample may be provided at trial by testimony of the charging
officer or by an affidavit of the person who withdrew the blood sample and
shall be sufficient to constitute prima facie evidence regarding the person's
qualifications.
(c1) Whenever blood or urine is submitted to the North Carolina State Bureau of Investigation Laboratory, the Charlotte, North Carolina, Police Department Laboratory, or any other laboratory approved for chemical analysis by the Department of Health and Human Services to determine if the blood or urine contains alcohol or a controlled substance or its metabolites or any other impairing substance, the report of that analysis certified to upon a form approved by the Attorney General by the person performing the analysis shall be admissible without further authentication in all administrative hearings and proceedings in the district court and superior court divisions of the General Court of Justice as evidence that the blood or urine contained alcohol, a controlled substance or its metabolites or any other impairing substance as well as the quantity of the alcohol, controlled substance, metabolite of a controlled substance, or other impairing substance. Provided, however, that a report is admissible in a criminal proceeding in the superior court division or in an adjudicatory hearing in juvenile court in the district court division only if the defendant fails to notify the State at least five days before trial that the defendant objects to the introduction of the report into evidence.
The report containing the results of any blood or urine test may be transmitted electronically or via facsimile. A copy of the affidavit sent electronically or via facsimile shall be admissible in any court or administrative hearing without further authentication. A copy of the report shall be sent to the charging officer, the clerk of superior court in the county in which the criminal charges are pending, the Division of Motor Vehicles, and the Department of Health and Human Services.
Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the report.
(c2) Procedure for establishing chain of custody without calling unnecessary witnesses. -
(1) For the purpose of establishing the chain of physical custody or control of blood or urine tested or analyzed to determine whether it contains alcohol, a controlled substance or its metabolite, or any impairing substance, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.
(2) The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received. The statement may be placed on the same document as the report provided for in subsection (c1) of this section.
(3) The provisions of this subsection may be utilized in any administrative hearing and by the State in district court but can only be utilized in a case originally tried in superior court or an adjudicatory hearing in juvenile court, if the defendant fails to notify the State at least five days before trial that the defendant objects to the introduction of the statement into evidence.
(4) Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the statement.
(c3) The results of a blood or urine test are admissible to prove a person's alcohol concentration or the presence of controlled substances or metabolites or any other impairing substance if:
(1) A law enforcement officer or chemical analyst requested a blood and/or urine sample from the person charged; and
(2) A chemical analysis of the person's blood was performed by a chemical analyst possessing a permit issued by the Department of Health and Human Services authorizing the chemical analyst to analyze blood or urine for alcohol or controlled substances, metabolites of a controlled substance, or any other impairing substance.
For purposes of establishing compliance with subdivision (2) of this subsection, the court or administrative agency shall take judicial notice of the list of persons possessing permits, the type of instrument on which each person is authorized to perform tests of the blood and/or urine, and the date the permit was issued and the date it expires.
(d) Right to Additional
Test. - A person who submits to a chemical analysis may have a qualified
person of his own choosing administer an additional chemical test or tests, or
have a qualified person withdraw a blood sample for later chemical testing by a
qualified person of his own choosing. Any law-enforcement officer having in his
charge any person who has submitted to a chemical analysis shall assist the
person in contacting someone to administer the additional testing or to
withdraw blood, and shall allow access to the person for that purpose. Nothing
in this section shall be construed to prohibit a person from obtaining or
attempting to obtain an additional chemical analysis. If the person is not
released from custody after the initial appearance, the agency having custody
of the person shall allow the person access to a telephone to attempt to
arrange for any additional test and allow access to the person in accordance
with the agreed procedure in G.S. 20-38.4. The failure or inability of
the person who submitted to a chemical analysis to obtain any additional test
or to withdraw blood does not preclude the admission of evidence relating to
the chemical analysis.
(d1) Right to Require Additional Tests. - If a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, with or without a court order, compel the person to provide blood and/or urine samples for analysis. Notwithstanding any other provision of law, when a blood or urine sample is requested under this subsection by a law enforcement officer, a physician, registered nurse, emergency medical technician, or other qualified person shall withdraw the blood and obtain the urine sample and no further authorization or approval is required. If the person withdrawing the blood or collecting the urine requests written confirmation of the charging officer's request for the withdrawal of blood or obtaining urine, the officer shall furnish it before blood is withdrawn or urine obtained. When blood is withdrawn or urine collected pursuant to a law enforcement officer's request, neither the person withdrawing the blood nor any hospital, laboratory, or other institution, person, firm, or corporation employing that person, or contracting for the service of withdrawing blood, may be held criminally or civilly liable by reason of withdrawing that blood, except that there is no immunity from liability for negligent acts or omissions. The results of the analysis of blood or urine under this subsection shall be admissible if performed by the State Bureau of Investigation Laboratory or any other hospital or qualified laboratory.
(e) Recording Results of
Chemical Analysis of Breath. - The chemical analyst who administers a test
of a person's breath shall record the following information after making any
chemical analysis:
(1) The alcohol
concentration or concentrations revealed by the chemical analysis.
(2) The time of
the collection of the breath sample or samples used in the chemical analysis.
A copy of the record of this information shall be furnished
to the person submitting to the chemical analysis, or to his attorney, before
any trial or proceeding in which the results of the chemical analysis may be
used. A person charged with an implied consent offense who has not
received prior to a trial a copy of the chemical analysis results the State
intends to offer into evidence prior to trial may request in writing a copy of
the results. The failure to provide a copy prior to any trial shall be
grounds for a continuance of the case but shall not be grounds to suppress the
results of the chemical analysis or to dismiss the criminal charges.
(e1) Use of Chemical Analyst's Affidavit in District Court. - An affidavit by a chemical analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any hearing or trial in the District Court Division of the General Court of Justice with respect to the following matters:
(1) The alcohol concentration or concentrations or the presence or absence of an impairing substance of a person given a chemical analysis and who is involved in the hearing or trial.
(2) The time of the collection of the blood, breath, or other bodily fluid or substance sample or samples for the chemical analysis.
(3) The type of chemical analysis administered and the procedures followed.
(4) The type and status of any permit issued by the Department of Health and Human Services that the analyst held on the date the analyst performed the chemical analysis in question.
(5) If the chemical analysis is performed on a breath-testing instrument for which regulations adopted pursuant to subsection (b) require preventive maintenance, the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown on the maintenance records for that instrument.
The Department of Health and Human Services shall develop a form for use by chemical analysts in making this affidavit. If any person who submitted to a chemical analysis desires that a chemical analyst personally testify in the hearing or trial in the District Court Division, the person may subpoena the chemical analyst and examine him as if he were an adverse witness. A subpoena for a chemical analyst shall not be issued unless the person files in writing with the court and serves a copy on the district attorney at least five days prior to trial an affidavit specifying the specific factual grounds that the person believes the chemical analysis was not properly administered and the facts that the chemical analyst will testify about and stating that the presence of the analyst is necessary for the proper defense of the case. The district court shall determine if there are grounds to believe that the presence of the analyst requested is necessary for the proper defense. If so, the case shall be continued until the analyst can be present. The criminal case shall not be dismissed due to the failure of the analyst to appear, unless the analyst willfully fails to appear after being ordered to appear by the court.
(f) Evidence of
Refusal Admissible. - If any person charged with an implied-consent offense
refuses to submit to a chemical analysis, analysis or to perform
field sobriety tests at the request of an officer, evidence of that refusal
is admissible in any criminal criminal, civil, or administrative action
against him for an implied-consent offense under G.S. 20-16.2.the
person. The fact finder shall consider either type of refusal to be evidence
that the person had consumed sufficient impairing substance to be impaired.
(g) Controlled-Drinking Programs. - The Department of Health and Human Services may adopt rules concerning the ingestion of controlled amounts of alcohol by individuals submitting to chemical testing as a part of scientific, experimental, educational, or demonstration programs. These regulations shall prescribe procedures consistent with controlling federal law governing the acquisition, transportation, possession, storage, administration, and disposition of alcohol intended for use in the programs. Any person in charge of a controlled-drinking program who acquires alcohol under these regulations must keep records accounting for the disposition of all alcohol acquired, and the records must at all reasonable times be available for inspection upon the request of any federal, State, or local law-enforcement officer with jurisdiction over the laws relating to control of alcohol. A controlled-drinking program exclusively using lawfully purchased alcoholic beverages in places in which they may be lawfully possessed, however, need not comply with the record-keeping requirements of the regulations authorized by this subsection. All acts pursuant to the regulations reasonably done in furtherance of bona fide objectives of a controlled-drinking program authorized by the regulations are lawful notwithstanding the provisions of any other general or local statute, regulation, or ordinance controlling alcohol.
(h) The results of a chemical analysis shall not be suppressed for a violation of this section or G.S. 20-16.2. Any violation shall go to the weight to be given to the results and not the admissibility as provided in G.S. 20-38.7."
PART XII. improved access to medical records in impaired driving cases
SECTION 28. Chapter 90 is amended by adding a new section to read:
"§ 90-21.20B. Access to medical information for law enforcement purposes.
(a) Notwithstanding any other provision of law, if a person is involved in a vehicle crash:
(1) Any health care provider who is providing medical treatment to the person shall, upon request, disclose to any law enforcement officer investigating the crash the following information about the person: name, current location, and whether the person appears to be impaired by alcohol, drugs, or another substance.
(2) Law enforcement officers shall be provided access to visit and interview the person upon request, except when the health care provider requests temporary privacy for medical reasons.
(3) A health care provider shall disclose a certified copy of all identifiable health information related to that person as specified in a search warrant or an order issued by a judicial official.
(b) A prosecutor or law enforcement officer receiving identifiable health information under this section shall not disclose this information to others prior to trial except as necessary to the investigation or otherwise allowed by law.
(c) A certified copy of identifiable health information, if relevant, shall be admissible in any hearing or trial without further authentication.
(d) As used in this section, "health care provider" has the same meaning as in G.S. 90-21.11."
PART XIII. PROSECUTOR REPORTING WHEN IMPLIED CONSENT CASE IS DISMISSED
SECTION 29. G.S. 20-138.4 reads as rewritten:
"§ 20-138.4. Requirement that prosecutor explain reduction or dismissal of charge involving impaired driving.
(a) Any prosecutor
must shall enter detailed facts in the record of any case involving
impaired driving subject to the implied consent law or involving driving
while license revoked for impaired driving as defined in G.S. 20-28.2
explaining orally in open court and in writing the reasons for his
action if he:
(1) Enters a voluntary dismissal; or
(2) Accepts a plea of guilty or no contest to a lesser included offense; or
(3) Substitutes another charge, by statement of charges or otherwise, if the substitute charge carries a lesser mandatory minimum punishment or is not an offense involving impaired driving; or
(4) Otherwise takes a discretionary action that effectively dismisses or reduces the original charge in the case involving impaired driving.
(b) The written explanation shall be signed by the prosecutor taking the action on a form approved by the Administrative Office of the Courts and shall contain, at a minimum, the alcohol concentration or the fact that the driver refused, a list of all prior convictions of implied consent offenses or driving while license revoked, whether the driver had a valid drivers license or privilege to drive in this State as indicated by the Division's records, a statement that a check of the database of the Administrative Office of the Courts revealed whether there are any other pending charges against the defendant pending in this State, those elements that the prosecutor believes in good faith can be proved, and a list of those elements that the prosecutor cannot prove and why, the name and agency of the charging officer and whether the officer is available, and any other reason why the charges are dismissed. General explanations such as "interests of justice" or "insufficient evidence" are not sufficiently detailed to meet the requirements of this section.
(c) A copy of this form shall be sent to the head of the law enforcement agency that employed the charging officer, to the elected district attorney who employs the prosecutor and filed in the court file. The Administrative Office of the Courts shall electronically record this data in its database and make it available upon request at no charge."
PART XIV. DRIVING WHILE LICENSE REVOKED after FAILURE TO APPEAR IN DRIVING WHILE IMPAIRED
SECTION 30. G.S. 20-48 reads as rewritten:
"§ 20-48. Giving of notice.
(a) Whenever the Division
is authorized or required to give any notice under this Chapter or other law
regulating the operation of vehicles, unless a different method of giving such
notice is otherwise expressly prescribed, such notice shall be given either by
personal delivery thereof to the person to be so notified or by deposit in the
United States mail of such notice in an envelope with postage prepaid,
addressed to such person at his address as shown by the records of the
Division. The giving of notice by mail is complete upon the expiration of four
days after such deposit of such notice. Proof of the giving of notice in either
such manner may be made by the certificate of any officer or employee of the
Division or affidavit of any person over 18 years of age, naming the person to
whom such notice was given and specifying the time, place, and manner of the
giving thereof.a notation in the records of the Division that the notice
was sent to a particular address and the purpose of the notices. A certified
copy of the Division's records may be sent by the Police Information Network,
facsimile, or other electronic means. A copy of the Division's records sent
under the authority of this section is admissible as evidence in any court or
administrative agency and is sufficient evidence to discharge the burden of the
person presenting the record that notice was sent to the person named in the
record, at the address indicated in the record, and for the purpose indicated
in the record. There is no requirement that the actual notice or letter be
produced.
(b) Notwithstanding any other provision of this Chapter at any time notice is now required by registered mail with return receipt requested, certified mail with return receipt requested may be used in lieu thereof and shall constitute valid notice to the same extent and degree as notice by registered mail with return receipt requested.
(c) The Commissioner shall appoint such agents of the Division as may be needed to serve revocation notices required by this Chapter. The fee for service of a notice shall be fifty dollars ($50.00)."
SECTION 31. G.S. 20-28 reads as rewritten:
"§ 20-28.
Unlawful to drive while license revoked revoked, after notification, or
while disqualified.
(a) Driving While License Revoked. - Except as provided in subsection (a1) of this section, any person whose drivers license has been revoked who drives any motor vehicle upon the highways of the State while the license is revoked is guilty of a Class 1 misdemeanor. Upon conviction, the person's license shall be revoked for an additional period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense.
The restoree of a revoked drivers license who operates a motor vehicle upon the highways of the State without maintaining financial responsibility as provided by law shall be punished as for driving without a license.
(a1) Driving Without Reclaiming License. - A person convicted under subsection (a) shall be punished as if the person had been convicted of driving without a license under G.S. 20-35 if the person demonstrates to the court that either subdivisions (1) and (2), or subdivision (3) of this subsection is true:
(1) At the time of the offense, the person's license was revoked solely under G.S. 20-16.5; and
(2) a. The offense occurred more than 45 days after the effective date of a revocation order issued under G.S. 20-16.5(f) and the period of revocation was 45 days as provided under subdivision (3) of that subsection; or
b. The offense occurred more than 30 days after the effective date of the revocation order issued under any other provision of G.S. 20-16.5; or
(3) At the time of the offense the person had met the requirements of G.S. 50-13.12, or G.S. 110-142.2 and was eligible for reinstatement of the person's drivers license privilege as provided therein.
In addition, a person punished under this subsection shall be treated for drivers license and insurance rating purposes as if the person had been convicted of driving without a license under G.S. 20-35, and the conviction report sent to the Division must indicate that the person is to be so treated.
(a2) Driving After Notification or Failure to Appear. - A person who drives upon a highway while his license is revoked for an impaired drivers license revocation after the Division has sent notification in accordance with G.S. 20-48 or who fails to appear for two years from the date of the charge after being charged with an implied consent offense shall be guilty of a Class 1 misdemeanor. Upon conviction, the person's license shall be revoked for an additional period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense. The restoree of a revoked drivers license who operates a motor vehicle upon the highways of the State without maintaining financial responsibility as provided by law shall be punished as for driving without a license.
(b) Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 761, s. 3.
(c) When Person May Apply
for License. - A person whose license has been revoked under this section and
for no other reason and the period of revocation is for one year may
apply for a license after 90 days. A person whose license has been revoked
under this section for two years may apply for a license after 12 months. A
person whose license has been revoked under this section permanently may
apply for a license after three years. Upon the filing of an application
the Division may, with or without a hearing, issue a new license upon
satisfactory proof that the former licensee has not been convicted of a moving
violation under this Chapter or the laws of another state, a violation of any
provision of the alcoholic beverage laws of this State or another state, or a
violation of any provisions of the drug laws of this State or another state
when any of these violations occurred during the revocation period. The
Division may impose any restrictions or conditions on the new license that the
Division considers appropriate for the balance of the revocation period. When
the revocation period is permanent, the restrictions and conditions imposed by
the Division may not exceed three years. If the person's license was revoked
pursuant to subsection (a1) of this section and the person drove while his
license was revoked for an impaired driving revocation or the revocation was
for violating subsection (a2) of this section, the Division may only
conditionally restore the license in accordance with this subsection and shall
require, at a minimum, as a condition of restoration that the driver obtain a
substance abuse assessment prior to issuance of a license and show proof of
financial responsibility. If the substance abuse assessment recommends
education or treatment, the person must complete the education or treatment
within the time limits specified. If the assessment determines that the person
abuses alcohol, then the Division shall require the person to install and use
an ignition interlock on any vehicles that are to be driven. If the person
violates any condition of the restoration or is convicted of any moving offense
in this or another state or the alcoholic beverage or controlled substance laws
of this or any other state, the Division shall cancel the conditionally
restored license and impose the remaining revocation period. The Division shall
also cancel the registration on any vehicles and shall require the driver to
surrender all current registration plates and cards.
(d) Driving While Disqualified. - A person who was convicted of a violation that disqualified the person and required the person's drivers license to be revoked who drives a motor vehicle during the revocation period is punishable as provided in the other subsections of this section. A person who has been disqualified who drives a commercial motor vehicle during the disqualification period is guilty of a Class 1 misdemeanor and is disqualified for an additional period as follows:
(1) For a first offense of driving while disqualified, a person is disqualified for a period equal to the period for which the person was disqualified when the offense occurred.
(2) For a second offense of driving while disqualified, a person is disqualified for a period equal to two times the period for which the person was disqualified when the offense occurred.
(3) For a third offense of driving while disqualified, a person is disqualified for life.
The Division may reduce a disqualification for life under this subsection to 10 years in accordance with the guidelines adopted under G.S. 20-17.4(b). A person who drives a commercial motor vehicle while the person is disqualified and the person's drivers license is revoked is punishable for both driving while the person's license was revoked and driving while disqualified."
PART XV. MODIFYING CURRENT PUNISHMENTS
SECTION 32. G.S. 20-179 reads as rewritten:
"§ 20-179. Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and aggravating and mitigating factors; punishments.
(a) Sentencing Hearing
Required. - After a conviction for impaired driving under G.S. 20-138.1,
G.S. 20-138.2, a second or subsequent conviction under G.S. 20-138.2A,
or a second or subsequent conviction under G.S. 20-138.2B, G.S. 20-138.3,
or any of the foregoing offenses are remanded back to the district court after
an appeal to superior court, the judge must shall hold a
sentencing hearing to determine whether there are aggravating or mitigating
factors that affect the sentence to be imposed. Before the hearing the
prosecutor must shall make all feasible efforts to secure the
defendant's full record of traffic convictions, and must shall present
to the judge that record for consideration in the hearing. Upon request of the
defendant, the prosecutor must shall furnish the defendant or his
attorney a copy of the defendant's record of traffic convictions at a
reasonable time prior to the introduction of the record into evidence. In
addition, the prosecutor must shall present all other appropriate
grossly aggravating and aggravating factors of which he is aware, and the
defendant or his attorney may present all appropriate mitigating factors. In
every instance in which a valid chemical analysis is made of the defendant, the
prosecutor must shall present evidence of the resulting alcohol
concentration.
(a1) Sentencing Hearing in Superior Court. - Upon a determination of guilt by the jury, the court shall submit to the same jury, or a different jury if using the same jury is impracticable, any grossly aggravating or aggravating factors supported by the evidence. Prior to submitting these factors to the jury, the court shall allow the State and the defendant to present evidence to the jury that is relevant to proving any grossly aggravating or aggravating factors that had not been presented to the jury during the guilt phase of the trial. Provided, however, the court is not required to allow proof of or submit to the jury any grossly aggravating or aggravating factor that is a conviction of a crime or determination of responsibility for an infraction that is stipulated to by the defendant.
(b) Repealed by Session Laws 1983, c. 435, s. 29.
(c) Determining Existence
of Grossly Aggravating Factors. - At the sentencing hearing, based upon the
evidence presented at trial and in the hearing, the judge must shall first
determine whether there are any grossly aggravating factors in the case. If
the sentencing hearing is for a case remanded back to district court from
superior court, the judge shall determine whether the defendant has been
convicted of any offense that was not considered at the initial sentencing
hearing and impose the appropriate sentence under this section. The judge must
shall impose the Level One punishment under subsection (g) of this
section if the judge determines that two or more grossly aggravating factors
apply. The judge must shall impose the Level Two punishment under
subsection (h) of this section if the judge determines that only one of the
grossly aggravating factors applies. The grossly aggravating factors are:
(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
(3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(4) Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.
In imposing a Level One or Two punishment, the judge may
consider the aggravating and mitigating factors in subsections (d) and (e) in
determining the appropriate sentence. If there are no grossly aggravating
factors in the case, the judge must shall weigh all aggravating
and mitigating factors and impose punishment as required by subsection (f).
(d) Aggravating Factors
to Be Weighed. - The judge must shall determine before sentencing
under subsection (f) whether any of the aggravating factors listed below apply
to the defendant. The judge must shall weigh the seriousness of
each aggravating factor in the light of the particular circumstances of the
case. The factors are:
(1) Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.16 or more within a relevant time after the driving.
(2) Especially reckless or dangerous driving.
(3) Negligent driving that led to a reportable accident.
(4) Driving by the defendant while his driver's license was revoked.
(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20-16 or for which the convicted person's license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6) Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of G.S. 20-217.
(9) Any other factor that aggravates the seriousness of the offense.
Except for the factor in subdivision (5) the conduct
constituting the aggravating factor must shall occur during the
same transaction or occurrence as the impaired driving offense.
(e) Mitigating Factors to
Be Weighed. - The judge must shall also determine before
sentencing under subsection (f) whether any of the mitigating factors listed
below apply to the defendant. The judge must shall weigh the
degree of mitigation of each factor in light of the particular circumstances of
the case. The factors are:
(1) Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having 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, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20-16 or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
(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 dosage.
(6) The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
(7) Any other factor that mitigates the seriousness of the offense.
Except for the factors in subdivisions (4), (6) and (7), the
conduct constituting the mitigating factor must shall occur
during the same transaction or occurrence as the impaired driving offense.
(f) Weighing the
Aggravating and Mitigating Factors. - If the judge in the sentencing hearing
determines that there are no grossly aggravating factors, he must shall
weigh all aggravating and mitigating factors listed in subsections (d) and
(e). If the judge determines that:
(1) The aggravating
factors substantially outweigh any mitigating factors, he must shall note
in the judgment the factors found and his finding that the defendant is subject
to the Level Three punishment and impose a punishment within the limits defined
in subsection (i).
(2) There are no
aggravating and mitigating factors, or that aggravating factors are
substantially counterbalanced by mitigating factors, he must shall note
in the judgment any factors found and his finding that the defendant is subject
to the Level Four punishment and impose a punishment within the limits defined
in subsection (j).
(3) The mitigating factors
substantially outweigh any aggravating factors, he must shall note
in the judgment the factors found and his finding that the defendant is subject
to the Level Five punishment and impose a punishment within the limits defined
in subsection (k).
It is not a mitigating factor that the driver of the vehicle was
suffering from alcoholism, drug addiction, diminished capacity, or mental
disease or defect. Evidence of these matters may be received in the sentencing
hearing, however, for use by the judge in formulating terms and conditions of sentence
after determining which punishment level must shall be imposed.
(f1) Aider and Abettor Punishment. - Notwithstanding any other provisions of this section, a person convicted of impaired driving under G.S. 20-138.1 under the common law concept of aiding and abetting is subject to Level Five punishment. The judge need not make any findings of grossly aggravating, aggravating, or mitigating factors in such cases.
(f2) Limit on Consolidation of
Judgments. - Except as provided in subsection (f1), in each charge of impaired
driving for which there is a conviction the judge must shall determine
if the sentencing factors described in subsections (c), (d) and (e) are
applicable unless the impaired driving charge is consolidated with a charge
carrying a greater punishment. Two or more impaired driving charges may not be
consolidated for judgment.
(g) Level One Punishment. - A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(h) Level Two Punishment. - A defendant subject to Level Two punishment may be fined up to two thousand dollars ($2,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(i) Level Three Punishment. - A defendant subject to Level Three punishment may be fined up to one thousand dollars ($1,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 72 hours and a maximum term of not more than six months. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of at least 72 hours as a condition of special probation; or
(2) Perform community service for a term of at least 72 hours; or
(3) Not operate
a motor vehicle for a term of at least 90 days; or
(4)(3) Any combination of these
conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(j) Level Four Punishment. - A defendant subject to Level Four punishment may be fined up to five hundred dollars ($500.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 48 hours and a maximum term of not more than 120 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of 48 hours as a condition of special probation; or
(2) Perform community service for a term of 48 hours; or
(3) Not operate
a motor vehicle for a term of 60 days; or
(4)(3) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(k) Level Five Punishment. - A defendant subject to Level Five punishment may be fined up to two hundred dollars ($200.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 24 hours and a maximum term of not more than 60 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of 24 hours as a condition of special probation; or
(2) Perform community service for a term of 24 hours; or
(3) Not operate
a motor vehicle for a term of 30 days; or
(4)(3) Any combination of these
conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(k1) Credit for Inpatient Treatment. - Pursuant to G.S. 15A-1351(a), the judge may order that a term of imprisonment imposed as a condition of special probation under any level of punishment be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient. The defendant shall bear the expense of any treatment unless the trial judge orders that the costs be absorbed by the State. The judge may impose restrictions on the defendant's ability to leave the premises of the treatment facility and require that the defendant follow the rules of the treatment facility. The judge may credit against the active sentence imposed on a defendant the time the defendant was an inpatient at the treatment facility, provided such treatment occurred after the commission of the offense for which the defendant is being sentenced. This section shall not be construed to limit the authority of the judge in sentencing under any other provisions of law.
(l) Repealed by Session Laws 1989, c. 691.
(m) Repealed by Session Laws 1995, c. 496, s. 2.
(n) Time Limits for
Performance of Community Service. - If the judgment requires the defendant to
perform a specified number of hours of community service as provided in
subsections (i), (j), or (k), the community service must shall be
completed:
(1) Within 90 days, if the amount of community service required is 72 hours or more; or
(2) Within 60 days, if the amount of community service required is 48 hours; or
(3) Within 30 days, if the amount of community service required is 24 hours.
The court may extend these time limits upon motion of the defendant if it finds that the defendant has made a good faith effort to comply with the time limits specified in this subsection.
(o) Evidentiary
Standards; Proof of Prior Convictions. - In the sentencing hearing, the State must
shall prove any grossly aggravating or aggravating factor by the
greater weight of the evidence, and the defendant must shall prove
any mitigating factor by the greater weight of the evidence. Evidence adduced
by either party at trial may be utilized in the sentencing hearing. Except as
modified by this section, the procedure in G.S. 15A-1334(b) governs. The
judge may accept any evidence as to the presence or absence of previous
convictions that he finds reliable but he must shall give prima
facie effect to convictions recorded by the Division or any other agency of the
State of North Carolina. A copy of such conviction records transmitted by the
police information network in general accordance with the procedure authorized
by G.S. 20-26(b) is admissible in evidence without further authentication.
If the judge decides to impose an active sentence of imprisonment that would
not have been imposed but for a prior conviction of an offense, the judge must
shall afford the defendant an opportunity to introduce evidence that
the prior conviction had been obtained in a case in which he was indigent, had
no counsel, and had not waived his right to counsel. If the defendant proves by
the preponderance of the evidence all three above facts concerning the prior
case, the conviction may not be used as a grossly aggravating or aggravating
factor.
(p) Limit on Amelioration of Punishment. - For active terms of imprisonment imposed under this section:
(1) The judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.
(2) The defendant shall serve the mandatory minimum period of imprisonment and good or gain time credit may not be used to reduce that mandatory minimum period.
(3) The defendant may not be released on parole unless he is otherwise eligible, has served the mandatory minimum period of imprisonment, and has obtained a substance abuse assessment and completed any recommended treatment or training program or is paroled into a residential treatment program.
With respect to the minimum or specific term of imprisonment imposed as a condition of special probation under this section, the judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.
(q) Repealed by Session Laws 1991, c. 726, s. 20.
(r) Supervised Probation Terminated. - Unless a judge in his discretion determines that supervised probation is necessary, and includes in the record that he has received evidence and finds as a fact that supervised probation is necessary, and states in his judgment that supervised probation is necessary, a defendant convicted of an offense of impaired driving shall be placed on unsupervised probation if he meets three conditions. These conditions are that he has not been convicted of an offense of impaired driving within the seven years preceding the date of this offense for which he is sentenced, that the defendant is sentenced under subsections (i), (j), and (k) of this section, and has obtained any necessary substance abuse assessment and completed any recommended treatment or training program.
When a judge determines in accordance with the above procedures that a defendant should be placed on supervised probation, the judge shall authorize the probation officer to modify the defendant's probation by placing the defendant on unsupervised probation upon the completion by the defendant of the following conditions of his suspended sentence:
(1) Community service; or
(2) Repealed by Session Laws 1995 c. 496, s. 2.
(3) Payment of any fines, court costs, and fees; or
(4) Any combination of these conditions.
(s) Method of Serving
Sentence. - The judge in his discretion may order a term of imprisonment or
community service to be served on weekends, even if the sentence cannot be
served in consecutive sequence. However, if the defendant is ordered to a
term of 48 hours or more or has 48 hours or more remaining on a term of
imprisonment, the defendant shall be required to serve 48 continuous hours of
imprisonment to be given credit for time served. Credit for any jail time shall
only be given hour for hour for time actually served. The jail shall maintain a
log showing number of hours served. The court may provide for the DWI case
manager in consultation with the sheriff's office to determine which weekends
the defendant shall serve. If the defendant appears at the jail and has
remaining in his body any alcohol, as shown by an alcohol screening device, or
controlled substance previously consumed, unless lawfully obtained and taken in
therapeutically appropriate amounts, the defendant shall be refused entrance
and this shall be reported back to court. If after a hearing the court
determines that when the defendant reported to jail, the defendant had
remaining in his body any alcohol previously consumed, as shown by an alcohol
screening device, or controlled substance previously consumed, unless lawfully
obtained and taken in therapeutically appropriate amounts, the defendant shall
be ordered to serve his jail time immediately and shall not be eligible to
serve jail time on weekends.
(t) Repealed by Session Laws 1995, c. 496, s. 2."
SECTION 33. Chapter 7A of the General Statutes is amended by adding a new section to read:
"§ 7A-109.4. Records of offenses involving impaired driving.
The clerk of superior court shall maintain all records relating to an offense involving impaired driving as defined in G.S. 20-4.01(24a) for a minimum of 10 years from the date of conviction. Prior to destroying the record, the clerk shall record the name of the defendant, the judge, the prosecutor, and the attorney or whether there was a waiver, the alcohol concentration or the fact of refusal, the sentence imposed, and whether the case was appealed to superior court and its disposition."
PART XVI. increased collection of fines and fees
SECTION 34. G.S. 20-179 is amended by adding a new subsection to read:
"(u) Fees and Fines. - A fee, fine, or cost that is authorized by law to be imposed for a person sentenced under this section shall not be waived or remitted unless the court determines that the person is indigent and incapable of paying now and will not be capable of paying during the term of probation."
SECTION 35. G.S. 7A-108 reads as rewritten:
"§ 7A-108. Accounting for fees and other receipts; annual audit.
(a) The Administrative Office of the Courts, subject to the approval of the State Auditor, shall establish procedures for the receipt, deposit, protection, investment, and disbursement of all funds coming into the hands of the clerk of superior court. The fees to be remitted to counties and municipalities shall be paid to them monthly by the clerk of superior court.
(b) The operations of the Administrative Office of the Courts and the Clerks of Superior Court shall be subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes.
(c) The procedures specified in subsection (a) of this section, at a minimum, shall require each clerk of superior court within 48 hours of any court order to establish an accounts payable for all funds required to be paid to the clerk of superior court and still owed. In addition to the procedures of G.S. 20-24.1 and G.S. 20-24.2, the clerk shall report all persons back to court who are six months overdue on payments. By March 1, the Administrative Office of the Courts shall provide an annual report of the previous calendar year to the Joint Legislative Commission on Governmental Operations on a statewide and county basis the amount of fines, costs, restitution, and amount and types of fees ordered to be paid at the disposition of any criminal trial, any subsequent reduction of this amount, amount collected, and amount still owed."
SECTION 36. Chapter 20 of the General Statutes is amended by adding a new section to read:
"§ 20-24.3. Surrender of license and registration.
(a) Upon conviction for an offense which requires the Division to revoke a person's drivers license, the person shall surrender to the court his most recent valid drivers license issued by the Division or by a similar agency in another jurisdiction and any limited driving privilege. For a person who does not surrender the license within 10 days of a conviction, the clerk shall impose the fee of fifty dollars ($50.00) specified in G.S. 7A-304(a)(6). A person who is unable to locate his license or whose license is revoked and does not have a limited driving privilege shall file an affidavit with the clerk stating that he is validly licensed and is unable to locate the license or that it is revoked. This affidavit shall constitute surrender of the license.
(b) Upon conviction for an offense that requires the Division to revoke a person's registration, the person shall surrender to the court all registration plates and registration cards issued to him by the Division. For a person who does not surrender the registration plates and cards within 10 days of a conviction, the clerk shall impose the fee of fifty dollars ($50.00) specified in G.S. 7A-304(a)(6) for each such tag or card not surrendered. A person who surrenders his registration plate and card to the Division may submit the receipt issued by the Division in lieu of surrendering the tag to the court."
PART XVII. MAKING IT ILLEGAL FOR A PERSON UNDER 21 YEARS OF AGE TO CONSUME AS WELL AS POSSESS ALCOHOL AND TO ALLOW ALCOHOL SCREENING DEVICES TO BE USED TO PROVE A PERSON HAS CONSUMED ALCOHOL
SECTION 37. G.S. 18B-302(b) reads as rewritten:
"(b) Purchase or Possession. - It shall be unlawful for:
(1) A person less than 21 years old to purchase, to attempt to purchase, or to possess malt beverages or unfortified wine; or
(2) A person less than 21 years old to purchase, to attempt to purchase, or to possess fortified wine, spirituous liquor, or mixed beverages.
(3) A person less than 21 years old to consume any alcoholic beverage."
SECTION 38. G.S. 18B-302 is amended by adding a new subsection to read:
"(j) Notwithstanding any other provisions of law, a law enforcement officer may require any person the officer has probable cause to believe is under the age of 21 and who has consumed alcohol to submit to an alcohol screening test using a device approved by the Department of Health and Human Services. The results of any screening device administered in accordance with the rules of the Department of Health and Human Services shall be admissible in any court or administrative proceeding to prove that a person possessed or consumed an alcoholic beverage."
PART XVIII. requirING that defendants who are released from prison early are to be assigned to house arrest or community service parole
SECTION 39. G.S. 15A-1371(h) reads as rewritten:
"(h) Community Service Parole.Parole
and House Arrest. - Notwithstanding the provisions of any other subsection
herein, prisoners serving sentences for impaired driving who are granted
early release shall be eligible for assigned community service
parole, parole or house arrest, in the discretion of the Post-Release
Supervision and Parole Commission.
Community service parole is early parole for the purpose of
participation in a program of community service under the supervision of a
probation/parole officer. A parolee who is paroled under this subsection must
shall perform as a condition of parole community service in an
amount and over a period of time to be determined by the Post-Release
Supervision and Parole Commission. However, the total amount of community
service shall not exceed an amount equal to 32 hours for each month of active
service remaining in his minimum sentence. The Post-Release Supervision and
Parole Commission may grant early parole under this section without requiring
the performance of community service if it determines that such performance is
inappropriate to a particular case.
The probation/parole officer and the community service
coordinator shall develop a program of community service for the parolee. The
community service coordinator shall report any willful failure to perform
community service work to the probation/parole officer. Parole may be revoked
for any parolee who willfully fails to perform community service work as
directed by a community service coordinator. coordinator or violates
the rules of house arrest. The provisions of G.S. 15A-1376 shall apply
to this violation of a condition of parole.
Community service parole or house arrest eligibility shall be available to a prisoner:
(1) Who is serving an active sentence the term of which exceeds six months; and
(2) Who, in the opinion of the Post-Release Supervision and Parole Commission, is unlikely to engage in further criminal conduct; and
(3) Who agrees to complete service of his sentence as herein specified; and
(4) Who has served one-half of his minimum sentence.
In computing the service requirements of subdivision (4) of this subsection, credit shall be given for good time and gain time credit earned pursuant to G.S. 148-13. Nothing herein is intended to create or shall be construed to create a right or entitlement to community service parole or house arrest in any prisoner. The Post-Release Supervision and Parole Commission may impose additional restrictions on consumption of alcohol or other impairing substances and requirements for treatment for substance abuse."
SECTION 40. G.S. 15A-1371(i) reads as rewritten:
"(i) A fee of two
hundred dollars ($200.00) shall be paid by all persons who participate in the
Community Service Parole Program.or House Arrest Program. That
fee must shall be paid to the clerk of court in the county in
which the parolee is released. The fee must shall be paid in full
within two weeks unless the Post-Release Supervision and Parole Commission,
upon a showing of hardship by the person, allows the person additional time to
pay the fee. The parolee may not be required to pay the fee before the person
begins the community service or is assigned to house arrest unless the
Post-Release Supervision and Parole Commission specifically orders that the
person do so. Fees collected under this subsection shall be deposited in the
General Fund. The fee imposed under this subsection may be paid as prescribed
by the supervising parole officer."
SECTION 41. G.S. 15A-1371(j) reads as rewritten:
"(j) The Post-Release Supervision and Parole Commission may terminate a prisoner's community service parole or house arrest before the expiration of the term of imprisonment where doing so will not endanger the public, unduly depreciate the seriousness of the crime, or promote disrespect for the law."
PART XIX. EFFECTIVE DATE
SECTION 42. This act becomes effective December 1, 2005, and applies to offenses committed on or after that date.