The Difference Between a Driving Restriction and a DWI

Raleigh DWI LawyerIf you’ve been convicted of a first time standard DWI offense where the blow does not exceed .15, North Carolina General Statutes Sec. 20-19(c3) provides:

For the first restoration of a drivers license for a person convicted of driving while impaired, G.S. 20-138.1, or a drivers license revoked pursuant to G.S. 20-23 or G.S. 20-23.2 when the offense for which the person’s license was revoked prohibits substantially similar conduct which if committed in this State would result in a conviction of driving while impaired under G.S. 20-138.1, that the person not operate a vehicle with an alcohol concentration of 0.04 or more at any relevant time after the driving

This .04 restriction remains on the license for three years following the restoration of the person’s driving privilege or a total of 4 years from the time of conviction.

The North Carolina General Assembly is currently considering a bill, which has passed the House and is now in the Senate that would make the restriction a .00 – meaning that any amount of alcohol in a person’s body would be sufficient to prove a violation of the restriction.

The current law – the .04 restriction – is sometimes difficult for prosecutors who must prove that the license restriction exists via a certified driving record and then must prove that the person’s Breath Alcohol Concentration or Blood Alcohol Concentration was a .04 or more.

Sometimes the prosecutor or officer lacks the proper record in court. Other times no chemical analysis was performed.

An odd situation can occur, where a person is found not guilty of the .04 restriction because the state lacks the BAC result or fails to prove the restriction, but a person is found guilty of Driving While Impaired because the judge or jury believes the person was appreciably impaired in his use of his mental or bodily abilities.

The new law will fix this anomalous result because in a standard DWI case, the officer usually has some proof of the existence of alcohol through an admission by the defendant (“I had two beers an hour ago, officer!”) or by a Portable Breath Test. While odor alone will not prove a violation of a .00 restriction, other evidence can.

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.