NC DWI Laws and Administrative Codes

I’ve assembled here various laws and codes relating to North Carolina Driving While Impaired (DWI) Law:

N.C.G.S. 20-138.1 is the Impaired Driving statute that makes it a crime to “drive” (which means, operates) any vehicle upon any highway, any street, or any public vehicular area within North Carolina:

  1. While under the influence of an impairing substance; or [appreciable impairment by alcohol or any other substance]
  2. After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or
  3. With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine. [opiates, whether prescribed or not]

N.C.G.S. 20-138.2 is the Commercial Driving Impaired Driving statute. Instead of a .08, it merely requires a showing of .04 Blood Alcohol Concentration (BAC) while operating a commercial vehicle.

N.C.G.S. 20-138.3 is the Provisional Impaired Driving Statute for people under the age of 21 at the time of the offense. A person may be charged with both a standard DWI and a Provisional DWI. Odor is insufficient unless the driver was provided the opportunity to blow into a machine and failed to do so. North Carolina has a zero-tolerance rule, which means that any amount of alcohol can result in a Driving After Consuming conviction.

N.C.G.S. 20-138.4 effectively makes it difficult, if not impossible, to have a DWI charge reduced in most places in North Carolina. That’s because this provision requires the prosecutor who reduces the charge to make a comprehensive report to his boss – the elected District Attorney – the court system in the court shuck and to the Administrative Office of the Courts.

N.C.G.S. 20-179 governs sentencing under 20-138.1, 20-138.2 or a second or subsequent conviction under 20-138.2A or 20-138.2B (North Carolina’s zero tolerance rules for Bus or Commercial Vehicle Operation). As described elsewhere in on this site, this section sets out the Aggravating, Grossly Aggravating, and Mitigating factors that can be used in sentencing, as well as the six levels of punishment, and the various fees, fines, and jail times that can be imposed.

N.C.G.S. 20-139.1 establishes the procedures by which a chemical analysis may be taken under North Carolina’s implied consent laws. An implied consent chemical analysis requires, among other things, that the person be informed of his or her rights (and be provided with a written list of rights, and be allowed a waiting period prior to the breath or blood analysis. North Carolina uses two types of analysis – breath and blood, although there is a provision for urine analysis that I’ve never seen used. The section also deals with the admissibility of the results (or refusal to take the test) at trial, and provides time limits for the defense to object after having been provided notice at prior to trial.

N.C.G.S. 20-16.2 is usually read along with N.C.G.S. 20-139.1 to establish North Carolina’s implied consent provisions. This section deals with the driver’s obligation to produce a sample in the event of an implied consent criminal charge, the person’s rights to a Refusal Hearing if the officer has deemed the person to have refused and the limited right to a hearing in Superior Court if the DMV Refusal Hearing Officer decides against the driver and revokes his or her license for one-year for refusing to submit a sample.

N.C.G.S. 20-19 is a general statute granting the Division of Motor Vehicles (DMV) to suspend or revoke licenses, including for implied consent offenses and including for refusal to submit to a breathalyzer or chemical analysis at the time of an implied consent offense. In addition, this section instructs the DMV to place restrictions on the license once it is restored so that the person may not have .04 or more BAC for a period of time after having his driving privileges restored following a DWI conviction.

N.C.G.S. 20-141.4 creates a felony (Felony Death by Vehicle) in cases where the person unintentionally cases the death of another person, while engaging in impaired driving, and where the DWI was a proximate cause of the death. The section also creates additional felonies where serious injury results from a DWI offense.

N.C.G.S. 20-138.5 creates a felony where the person has been convincted of three or more impaired driving offenses (DWIs) in the preceding 10 years of the date of the current offense.

N.C.G.S. 20-17.6 governs how DMV will restore a license after a conviction for driving while impaired (DWI) or driving while less than 21 years old after consuming drugs or alcohol. Essentially, the Division of Motor Vehicles must receive a certificate of completion for alcohol treatement.

N.C.G.S. 20-17.8 governs the imposition of an Interlock Device (where the BAC was a .15 or higher) and the restoration of driving privileges after a DWI with an Interlock Device.

N.C.G.S. 20-16.3 permits an officer to request a Preliminary or Portable Breath Test (PBT) prior to arrest, but after the car has been stopped and there are reasonable grounds to believe that the driver has consumed alcohol. If the driver refuses to submit to this handheld breath test, the driver’s refusal may be used against him in court (although his license will not be suspended for refusal to submit to the PBT).

N.C.G.S. 20-28.2 and N.C.G.S. 20-28.3 allow the State to confiscate a person’s vehicle (through a civil forfeiture process) where the driver had previously been convicted of a DWI and had had his license suspended or where the person was driving on a suspended/revoked or without a license and had no insurance at the time of the DWI even if it was the first DWI. This section describes the process for forfeiture, as well as defenses available to “innocent owners” who may be people who also have a property interest in the vehicle (such as a parent, or spouse) and were unaware of the fact that driver was in violation of the law.

N.C.G.S. 20-16.3A permits North Carolina police agencies to establish roadblocks pursuant to a “a written policy that provides guidelines for the pattern, which need not be in writing” (whatever the heck that means!).

N.C.G.S. 20-28.9 grants the Department of Public Instruction the authority to tow, store, and sell vehicles seized as part of a DWI offense.

N.C.G.S. 20-16.5 creates a Civil Revocation in the event of an implied consent offense where the person’s BAC was high enough, or where the person refused. The Civil Revocation is usually 30 days, although may be longer. This section also establishes the guidelines by which someone can request Limited Driving Privileges during the Civil Revocation period.

N.C.G.S. 20-23.2 says that North Carolina will recognize the conviction of a DWI or impaired driving offense in a federal court the same as if the offense had resulted in a conviction in a State court.

N.C.G.S. 20-179.3 permits Limited Driving Privileges in certain DWI cases, either with an interlock device (if the BAC was a .15 or higher) or without and for certain purposes only.

N.C.G.S. 20-17.3 revokes a person’s license for purchasing or attempting to purchase alcohol beverages for underage persons.

N.C.G.S. 20-36 places a ten year limit on how long the DMV may consider prior convictions or implied-consent refusals (except in cases involving holders of commercial vehicle licenses).

N.C.G.S. 122C-142.1 establishes the requirements for Substance Abuse Assessment agencies, including the requirements for various levels of treatment. For instance, if a person has no prior DWIs, did not blow a .15 or above, and does not have a substance abuse disability, the treatment facility must impose ADETS, the lowest level of treatment.

10A NCAC 41B (pdf) are regulations established by the Department of Health and Human Services in North Carolina regarding the proper maintenance of the Intox EC/IR II (and other intoximeters devices) as well as the screening devices (PBTs) used by officers on the roadside.

N.C.G.S. 17C-10 requires that all “criminal justice officers” (Law Enforcement Officers) abide by certain basic law enforcement training (BLET) in order to be certified as law enforcement officers in North Carolina. The BLET is issued by the North Carolina Criminal Justice Education And Training Standards Commission, and includes within it the Standardized Field Sobriety Tests as established by the National Highway Traffic Safety Administration (NHTSA). Sometimes judges in North Carolina will say that NHTSA is not the law. That’s only partially true. Since the BLET adopts the SFSTs from NHTSA in their virtual entirety, NHTSA’s SFSTs are effectively the law in North Carolina.

N.C.G.S. 15A-534.2 is a pre-trial release statute that permits a magistrate to order a defendant held if he is too impaired to be released, and there is no sober person available to release him to.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.