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No Privilege for You

March 4th, 2010
By Shea Denning

Among the most frequently asked motor vehicle law questions is whether a person convicted of impaired driving for an offense that occurred when the person was less than 21 years old is eligible for a limited driving privilege.  The answer is no.  The reason?  No statute confers authority for the granting of a limited driving privilege for such a person.  Without such authority, the privilege is invalid.  G.S. 20-179.3(k).

The state’s Division of Motor Vehicles (DMV) has the exclusive power to issue, suspend, or revoke a persons’ driver’s license.  See Joyner v. Garrett, 279 N.C. 226 (1971); Smith v. Walsh, 34 N.C. App. 287 (1977). The General Statutes confer upon the courts, however, the authority to issue limited driving privileges—judgments that authorize a person with a revoked driver’s license to drive for certain essential purposes.  To be eligible for a limited driving privilege, a person must satisfy eligibility requirements defined by statute and demonstrate good cause for the issuance of the privilege.

When a person is convicted of impaired driving, DMV must revoke the person’s license pursuant to G.S. 20-17(a)(2). If the person was under 21 at the time of the offense, DMV also must revoke the person’s license pursuant to G.S. 20-13.2(b).  If the person was convicted of driving after consuming while under age 21 in violation of G.S. 20-138.3, the person’s license is revoked pursuant to G.S. 20-13.2(a).  Revocations under G.S. 20-13.2 endure for one year and run concurrently with any other revocations. G.S. 20-13.2 is somewhat misleadingly captioned “Grounds for revoking provisional license,” though its license revocation provisions apply to persons under 21, rather than exclusively to provisional license-holders, all of whom are under 18.  The incongruous reference resulted from the General Assembly’s failure to amend the title of G.S. 20-13.2, which formerly applied to only to provisional licensees, when it raised from 18 to 21 the age below which a person is prohibited from driving after consuming.  See S.L. 1995-506.

Judges are authorized by G.S. 20-179.3 to grant a limited driving privilege for a person whose license is revoked “solely under G.S. 20-17(a)(2) or as a result of a conviction in another jurisdiction substantially similar to impaired driving under G.S. 20-138.1.”  If the person’s license is revoked under any other statute, however, a limited driving privilege awarded pursuant to G.S. 20-179.3 is invalid.  G.S. 20-179.3(e).

While a person whose license is revoked solely for conviction of driving by a person under 21 after consuming alcohol or drugs in violation of G.S. 138.3 is eligible for a limited driving privilege if the person is 18, 19, or 20 years old on the date of the offense, has not previously been convicted of a violation of G.S. 20-138.3, and meets other eligibility requirements set forth in G.S. 20-179.3, see G.S. 20-138.3(d), a person convicted of impaired driving based upon the same conduct is ineligible for a limited driving privilege because his or her license also will be revoked pursuant to G.S. 20-17(a)(2).

And, other than G.S. 20-138.3(d), there is no limited privilege that authorizes driving during a period of revocation imposed pursuant to G.S. 20-13.2.  Indeed, G.S. 20-138.3(d) provides that “G.S. 20-179.3, rather than this subsection, governs the issuance of a limited driving privilege to a person who is convicted of [driving by a person under 21 after consuming] and of driving while impaired as a result of the same transaction.” As previously noted, G.S. 20-179.3 in turn authorizes a privilege only when a person is revoked solely under G.S. 20-17(a)(2).

What happens if a court issues a limited driving privilege not authorized by law?  Copies of all limited driving privileges that are issued must be sent to DMV. G.S. 20-179.3(k). Upon receiving a privilege that is invalid on its face, DMV must immediately notify the court and the holder of the privilege that it considers the privilege void and that DMV records will not indicate that the holder has a limited driving privilege. G.S. 20-179.3(k).

Readers may recall that the North Carolina Court of Appeals held in State v. Bowes, 159 N.C. App. 18 (2003), that the provision in G.S. 20-179.3k allowing DMV to declare void a limited privilege—a judgment of the court—gave DMV the power to reverse the district court.  The court of appeals concluded that this grant of authority violated the separation of powers clause in the state constitution, though it agreed with DMV’s determination that Bowes, who was under 21 at the time of the impaired driving offense, was ineligible for a limited driving privilege. But the state supreme court in State v. Bowes, 360 N.C. 55 (2005), vacated the court of appeals decision and dismissed the appeal as moot.  Thus, DMV continues to abide by the provisions of G.S. 20-179.3(k).

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10 Responses to “No Privilege for You”

  1. J. Powell says:

    Who needs a LDP now? Now when somebody is charged with DWLR for an impaired driving conviction, the strategy has become to wait out the suspension and then get the license restored, and then get the DWLR dismissed for compliance.

    The only way I see to enforce these revocations is for the State to forbid restoration on a drivers license if there are pending charges.

  2. jenny says:

    can you get a revoked license by getting convicted of a felony? like lets say you get caught and convicted of felony possession of cocaine based on cocaine the police found in your car?

    • Shea Denning says:

      Only certain felonies give rise to license revocation. Most of the offenses giving rise to license revocation relate to operation of a vehicle and ABC law violations, though certain school conduct also can give rise to license revocation. See G.S. 20-13.2(c1).

      • Shea Denning says:

        And, to answer your specific question, a person’s conviction of felony possession of cocaine based upon cocaine found in the person’s car does not authorize DMV to revoke the person’s license.

        • Shea Denning says:

          I recant the previous comment. GS 20-17(a)(3) requires license revocation for “[a]ny felony in the commission of which a motor vehicle is used.” Given this broad language, I think it can fairly be read to apply to a conviction for felony possession of cocaine where a motor vehicle is used to store or transport the cocaine.

  3. Defender says:

    THe conviction for poss. of cocaine will not revoke a person’s driver license. However, the conviction is reportable to DMV, presumably to allow DMV examiners to view the individual’s substance abuse record during license restoration hearings. Violating the ensuing probation following a conviction, however, is one of the at least 76 different ways a person can have their license revoked in NC.

  4. Defender says:

    Here is an incomplete list for all the ways I could think of or find which could revoke your DL in NC. Its not statute cited and incomplete, but I hope it will be of use to the readers of this blog.

    An Incomplete List of Circumstances Under Which a Person’s Driving Privilege May Be Revoked in NC

    Charge/Conviction Term of Suspension (TOS)

    1. DWI
    One year for first offense

    Four years for second offense

    Permanent for third offense

    2. Driving After Consuming 15 mph over speed limit if limit is 55
    30 days

    4. Second charge of speeding > 15 mph if limit is 55 mph within one year period
    60 days

    5. Speeding + reckless on same date
    60 days

    6. 2 convictions speeding > 55 in one year

    7. Conviction of Speeding and Reckless w/in 1 year

    8. Willful spontaneous racing with another MV

    9. Driving after Judge ordered non-operation of MV as part of suspended sentence.

    10. Speeding > 75 mph in 55-65 mph zone

    11. Manslaughter by MV
    One year

    12. Misd. Death by MV
    One year

    13. Manslaughter while under influence of impairing substance
    Permanent

    14. Assault by MV
    Permanent

    15. Speeding > 15 mph and attempt to avoid arrest
    One year

    16. Willful prearranged racing of MV
    3 years + seizure of MV

    17. Watching/Betting/ Loaning a car for prearranged racing
    3 years + seizure of MV

    18. 2 reckless driving within 1 year
    One year

    19. Failure to Pay Child Support

    20. Revocation/Refusal of Probation for Felony
    Time Def. would have been on probation

    21. Conviction of any moving violation which is charged while license revoked

    22. Any subsequent conviction of DWLR

    23. FTA on any traffic citation

    24. Failure to pay fines/cost for any traffic citation

    25. License revocation for any reason in any other state.

    26. 12 DL points within 3 years

    27. Dropping out of high school 80 in 70 mph zone

    69. DMV shall not issue a license to a person previously adjudged “insane or an idiot, imbecile, or feebleminded” NCGS § 20-9(d)*. Presumably, if a person is adjudged as such his/her license would be revoked.

    * Actual statutory language.

    70. Drive Moped with >49 CC while Lic. Rev.

    71. DWI while riding a bicycle or lawn mower*
    *And maybe an electric wheelchair

    72. Three moving viol. w/in one year
    90 days (appealable)

    73. Four moving viol. w/in one year
    6 months (appealable)

    74.

    (c) Brian Oglesby 2010

  5. Andrew says:

    I have been charged with driving after consuming, and I was wondering if its possible for the court to change my conviction (assuming that I am found guilty) from driving after consuming to reckless driving because of circumstances. I have never been convicted of any other crime, but I have recieved three speeding tickets, all of which have been changed to improper equipment. My BAC level when I was tested at the police station was .03 and the only reason I was charged was because I’m 18. I looked at the link you had posted and none of the aggravating factors applied to me.

  6. shane says:

    I’ve been convicted of several dwlr my hearing is in a year can an attorney help me get driving privileges

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