License Suspension & Revocation

Limited Driving Privileges and Periods of Revocation

DWI is an Implied Consent Offense

When one is first arrested for DWI in North Carolina, the arresting officer will most likely take the alleged offender’s driver’s license immediately. From that point on, the defendant will not be allowed to legally operate a motor vehicle. It is very important to note that no one has a right to drive or operate a motor vehicle in the state of North Carolina. Driving on North Carolina highways is a privilege and not a right. By doing so, one is agreeing to submit to a blood-alcohol test should a law enforcement officer have reasonable suspicion that the driver may have committed an implied consent offense. This is why impaired driving offenses are all considered “implied consent” offenses. What this means is that when one voluntarily operates a motor vehicle on the state highway, he or she is voluntarily accepting the conditions that he or she may have to submit to a chemical analyst or law enforcement officer’s test for blood alcohol content. That is why when one refuses the intoxilyzer 5000 blood alcohol content exam at the police station, or in some cases at the DWI Checkpoint trailor/BAT Mobile, the North Carolina DMV can and will immediately suspend your right to drive or operate a motor vehicle within this state for a year.  

You’ve been arrested and charged. What now?

Limited Driving Privilege – Pre-trial

As said previously, the arresting officer will usually make the offender surrender his or her driver’s license when he or she has been formally charged with driving while impaired. As stated earlier, driving while impaired (DWI) is an implied consent offense. The officer will take the driver’s license for 30 days minimum. For the first 10 days, the defendant for DWI is not allowed to drive at all for the driving while impaired charge. In most cases, on Day 11 after the DWI charge, the defendant is allowed to file a petition for a limited driving privilege. There are numerous requirements for a limited driving privilege for a driving while impaired charge.

• At the time of the alleged offense, the defendant has to have had a valid driver’s license or his or her license was expired by less than one year.
• The person charged with the driving while impaired charge must not have any other pending driving while impaired charges.
• The alleged offender must have obtained a substance abuse assessment from a mental health facility and registered for or agreed to participate in any recommended treatment.

At this point, the defendant may petition for a limited driving privilege provided they can furnish the District Court Judge with a certified DMV Driving Record, a DL-123 proof of liability insurance,  a substance abuse assessment, three copies of the Limited Driving Privilege form, and a $100 civil filing fee for Superior Clerk of Court. This pre-trial limited driving privilege will be valid from Day 11 to Day 30 after the defendant’s license was revoked. After Day 30, it will expire and no longer be valid.

After thirty days from the revocation of the defendant’s driver’s license, the 30-Day Civil Revocation will have officially ended. At this point, the defendant may go to the clerk’s office of the courthouse of the county that he or she was arrested in and get his or her original license back. There will likely be a $50 filing fee. Once one gets their license back, he or she can keep on driving as if he or she was never ever charged with the driving while impaired (DWI) charge. This is because the 30 Day Civil Revocation has officially ended. In our court system, one is innocent until proven guilty. Thus, since the 30 day civil revocation is over, the defendant gets their full driving privileges and driver’s license back until he or she is actually convicted of the crime of driving while impaired. Since most Driving While Impaired (DWI) cases are continued for several months (it is not atypical for a case to be continued past a year), the defendant will have his or her full driver’s license with all driving privileges restored the entire pre-trial period  of time other than the initial 30-Day Civil Revocation.

You’ve been found guilty at trial or plead guilty. Now how do you drive legally?

If you are convicted of a Level 3 DWI, Level 4 DWI, or Level 5 DWI, you may be eligible for a limited driving privilege. This type of limited driving privilege is different from the pre-trial limited driving privilege. To be eligible, one must meet certain requirements. Among them are:

• The defendant was convicted of driving while impaired under NCGS 20-138.1 or driving after consuming alcohol or drugs while under the age of 21 and convicted under NCGS 20-138.3. If the defendant is only 18, 19, or 20 years old, they are only eligible for a limited driving privilege if convicted under NCGS 20-138.3. If the 18,19,20 year old was convicted of the standard driving while impaired or both driving while impaired and driving after consuming drugs or alcohol while under 21, he or she would not be eligible for a limited driving privilege at all.
• At the time of the offense, the defendant had to have either had a valid driver’s license or one that was expired for less than one year.
• In addition, the defendant cannot have been convicted of an offense involving impaired driving within the last 7 years. This is really redundant because if they had, they would be a Level 2 or Level 1 DWI which would also make them ineligible for the limited driving privilege.
• Also, after the offense date, the defendant cannot have racked up any new impaired driving charges and cannot have any unresolved impaired driving charge pending against him or her.
• The defendant also cannot have had their license revoked for any other motor vehicle offense such as speeding or reckless driving.
• The defendant must have liability insurance and be able to furnish a DL-123 Proof of Insurance form.
• The defendant must have obtained a valid substance abuse assessment and be able to furnish it to the court.

In general, a District Court or Superior Court Judge will sign off on a Limited Driving Privilege if all of these conditions are met, and the defendant can furnish a certified driving record, substance abuse assessment, DL-123, and a $100 filing fee for the clerk of Superior Court. 

Length of DWI (Driving While Impaired) Revocations

For 1st time offenders and those who have not had a DWI within three years, the revocation period is for 1 year.  To find whether one has had a DWI within the past 3 years, the clock runs from offense date to offense date.  For people who are convicted of a driving while impaired offense and have one impaired driving conviction within 3 years, the revocation is for 4 years of their drivers license.   However, after two years, the offender may apply for a conditional restoration of his or her license.  During this application process, the offender must demonstrate to the department of motor vehicles that he or she has picked up no new drug or alcohol offenses and is not an excessive abuser or alcohol or drugs.   The defendant must also furnish proof of insurance if it is applicable.  If a person is convicted of impaired driving and he or she has two or more prior convictions for impaired driving within the last 5 years from offense date to offense date, the person’s driver’s license will be permanently revoked.  After three years from the conviction date, a limited restoration of his or her driving privileges may be granted provided the offender can demonstrate that he or she is not a current abuser of drugs or alcohol. 

For first time offenders, when he or she first gets their license back, there are two mandatory restrictions.  One of the restrictions is that the defendant not drive with a blood alcohol content of 0.04 or higher.  In addition, the defendant must agree to submit to any chemical test that a law enforcement officer deems appropriate to test the blood alcohol content should the law enforcement official have reasonable grounds to believe that the restriction has been violated.   If this restriction is violated, the individual can lose their driving privileges for another year.  In addition, rather than a DWI, the defendant can be charged by the officer for both No Operator’s License and Failure to Comply with the Restrictions of License.  A person driving with a BAC of 0.05 is technically not impaired, but he or she is not following his or her restrictions on their license.  That is why he or she can be charged with Failure to Comply with License Restrictions.  In addition, the restoration of that person’s license was only conditional.  As a result, he or she can also be charged with No Operator’s License since the conditional restoration only covered driving up to 0.03 BAC. 

For second or third time offenders, their restorations of their licenses carry pretty much the same restrictions except that the offenders are not allowed to have any alcohol within their system whatsoever at the time of driving.  In addition, any law enforcement official can ask that the defendant be transported for testing should the officer find reasonable grounds.  Violations of the restriction will re-activate the original suspension period (4-years for people with a prior DWI within 3 years and permanently for people with 2 or more DWI’s within 5 years) and an additional year of revocation. 

Ignition Interlock Requirements

For some individuals convicted of DWI (Driving While Impaired), an ignition interlock device will be required for the offender to operate a motor vehicle.  The individuals must only drive a motor vehicle with the approved interlock system installed or he or she will technically be guilty of Driving While License Revoked.  

Any defendant found guilty of any level of Driving While Impaired (DWI) with a blood alcohol level or concentration of 0.15 or higher will be required to have an interlock installed in his or her vehicle.  In addition, any defendant who has had a prior DWI conviction within the prior 7 years will also be required to have an ignition interlock device installed in his or her vehicle.   The ignition interlock requirement is for one year for people who have a period of revocation of just one year.  The interlock requirement is for three years for people who had a period of revocation for 4 years.  The interlock requirement is 7 years for people whose original revocation was permanent.

Any violation of the interlock requirement will be criminally charged as a Driving While License Revoked which is a Class 1 misdemeanor.  Depending on record level, a person found guilty of this offense can receive up to 120 days of active jail time.  If an individual is on the interlock and conditional restoration of his or her license, a pending driving while license revoked charge due to violation of the interlock restriction will immediately suspend the person’s license pending the resolution of the criminal charge.  If a violation is indeed found, the DMV will suspend the defendant’s license for an additional year.   

At Everett Law Firm, P.A., we have the experience to ensure that your legal rights are protected. Our attorneys will review your case and explain your options; if your rights have been violated or the State may have difficulty proving their case, we are poised to conduct a trial on your behalf.  Our law firm’s primary focus in dedicated to criminal defense and as such, we have extensive experience in representing those accused of Driving While Impaired.  For a free initial consultation, E-mail us or call us at (877) NC-DRUNK or (877) 623-7865 today.