During any initial appearance, magistrates must consider a host of issues. Starting with determining whether to begin the initial appearance, finding probable cause, determining whether they may set pretrial release conditions, setting conditions when permitted, and conducting a citizenship inquiry when required, magistrates must work through multiple steps before setting a person’s next court date and concluding the initial appearance. When a magistrate conducts an initial appearance for a person charged with an implied consent offense, they must take additional steps to consider whether the person’s license must be revoked, whether to impose an impaired driver hold, whether to provide the person with an implied consent offense notice, and whether the person’s motor vehicle must be seized. In Part 1 of this series, we’ll cover civil license revocations and impaired driver holds, including when they apply and guidance for their implementation.
Offenses Involving Impaired Driving v. Implied Consent Offenses
First, it may help to define and distinguish offenses involving impaired driving and implied consent offenses. Offenses involving impaired driving are specifically set out in G.S. 20-4.01 as:
- Impaired driving under G.S. 20‑138.1;
- Any offense set forth under G.S. 20‑141.4 when conviction is based upon impaired driving or a substantially similar offense under previous law;
- First or second-degree murder under G.S. 14‑17 or involuntary manslaughter under G.S. 14‑18 when conviction is based upon impaired driving or a substantially similar offense under previous law;
- An offense committed in another jurisdiction which prohibits substantially similar conduct prohibited by these offenses;
- A repealed or superseded offense substantially similar to impaired driving, including offenses under former G.S. 20‑138 or G.S. 20‑139;
- Impaired driving in a commercial motor vehicle under G.S. 20‑138.2, except that convictions of impaired driving under G.S. 20‑138.1 and G.S. 20‑138.2 arising out of the same transaction shall be considered a single conviction of an offense involving impaired driving; and
- Habitual impaired driving under G.S. 20‑138.5.
All offenses involving impaired driving are included in the definition of implied consent offenses. This means that if a magistrate is conducting an initial appearance for any of the above offenses, all of the steps described below for offenses involving impaired driving and implied consent offenses apply.
Implied consent offenses are a larger set of offenses, and not as easily defined. G.S. 20-16.2 defines implied consent offense as “an offense involving impaired driving, a violation of G.S. 20‑141.4(a2), or an alcohol‑related offense made subject to the procedures of this section.” There are a number of alcohol-related offenses that the legislature has designated as implied consent offenses that are not offenses involving impaired driving. Some examples are:
- Driving by a person less than 21 years old after consuming alcohol or drugs in violation of G.S. 20-138.3;
- Violating a no-alcohol condition of a limited driving privilege in violation of G.S. 20-179.3(j);
- Impaired supervision or instruction in violation of G.S. 20-12.1;
- Operating a commercial vehicle after consuming alcohol in violation of G.S. 20-138.2A;
- Transporting an open container of alcohol in violation of G.S. 20-138.7(a); and
- Driving in violation of a license restriction requiring an ignition interlock device in violation of G.S. 20-17.8(f).
In contrast with offenses involving impaired driving, some implied consent offenses do not qualify for every step discussed here. Implied consent offenses that are not offenses involving impaired driving (as well as offenses involving impaired driving) require a magistrate to consider whether the person’s license is subject to revocation, whether to impose an impaired driver hold, and whether to serve the person with an implied consent offense notice. Implied consent offenses that are not offenses involving impaired driving do not subject the person’s motor vehicle to the possibility of being seized. Motor vehicle seizures only apply to the narrower category of offenses involving impaired driving.
Civil License Revocations
As noted above, civil license revocations apply when a person has been charged with an implied consent offense, which includes all offenses involving impaired driving.
A civil license revocation is an immediate revocation of a person’s driver’s license at the initial appearance if they meet certain criteria. When there is probable cause that a person committed an implied consent offense, the person has been charged with that offense, and the law enforcement officer and chemical analyst complied with the implied consent testing procedures in G.S. 20-16.2 and G.S. 20-139.1, then the magistrate must revoke the arrested person’s driver’s license if:
- They willfully refused to submit to chemical analysis;
- They had an alcohol concentration of .08 or more within a relevant time after driving;
- They had an alcohol concentration of .04 or more at any relevant time after the driving of a commercial vehicle; or
- They had any alcohol concentration at any relevant time after driving and the person is under 21 years old.
Magistrates accomplish this revocation by completing AOC-CVR-2 and seizing the arrested person’s driver’s license. This applies to both licenses issued by the NC DMV and any license issued by a similar agency in any other jurisdiction (G.S. 20-16.5(a)(5)). The magistrate must also inform the person at this time of their right for a hearing before a magistrate or judge to contest the validity of the revocation. When a person’s license is revoked at an initial appearance, the term of the revocation begins immediately. For these revocations implemented by a magistrate, there are two possible lengths for the revocation. If the arrested person has no other pending offenses for which their license had been revoked pursuant to a civil license revocation, then the revocation lasts at least 30 days from the day the arrested person surrenders their license. License surrender is most often accomplished at the same time as the revocation when a license is seized by the magistrate. License surrender may also be accomplished by the arrested person completing an affidavit that they lost their license, or by showing that they are not currently licensed. If a person does not surrender their license, and does not attest that they lost their license, the 30-day countdown will not begin until they bring their driver’s license to be surrendered. If the person does not surrender their license within five business days, the clerk is directed by G.S. 20-16.5(e) to issue a pick-up order for law enforcement to retrieve the driver’s license.
If the arrested person has another pending offense for which their license had been revoked pursuant to a civil license revocation, then the revocation lasts until final disposition of both the pending and contemporary offenses. Once the revocation period has passed, the person may retrieve their driver’s license after paying the restoration fee with the clerk’s office (G.S. 20-16.5(h)).
Impaired Driver Holds
Pursuant to G.S. 20-38.4(a)(4), magistrates must also consider whether the person before them is impaired to the extent that an impaired driver hold must be imposed when they find probable cause for any implied consent offense, which includes all offenses involving impaired driving.
Notably, this is not the same as determining whether to delay the initial appearance entirely due to the defendant’s intoxication (discussed more in-depth here). The two key distinctions are that impaired driver holds only apply when a person has been charged with an implied consent offense, rather than any offense, and that they apply after a person has been able to have their initial appearance, rather than before.
After setting conditions of pretrial release, a magistrate is required to impose an impaired driver hold when they determine, by clear and convincing evidence, that the impairment of the defendant’s physical or mental faculties presents a danger of physical injury to themselves or other or damage to property if released (G.S. 15A-534.2). As a burden of proof, clear and convincing evidence requires more evidence than reasonable suspicion, and less evidence than probable cause. This determination must be made based on findings particularized to the defendant and based on the defendant’s specific behavior.
Once a magistrate makes the requisite findings, the conditions of pretrial release that have been set will not go into effect until one of three requirements has been met, whichever occurs first. First, a magistrate may remove the impaired driver hold when the defendant is no longer impaired to the extent that they present a danger of physical injury to themselves or others or damage to property (G.S. 15A-534.2(c)(1). Second, a magistrate may remove the impaired driver hold when there is a sober, responsible adult who is willing and able to assume responsibility for the defendant. Finally, the conditions of pretrial release that have been set will go into effect after 24 hours, if neither of the first two conditions have been met yet (G.S. 15A-534.2(c)). Notably, these three requirements are judicial determinations, and making any of these determinations may not be delegated to another person who is not a judicial official.
As always, feel free to reach out to me with any questions or comments. I can be reached at elrahal@sog.unc.edu.
