DWLR + DWI Does Not (Automatically) Equal a Grossly Aggravating Factor

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Author’s note:  The law was amended in 2015 to alter this analysis.  The amendments are discussed here.

Grossly aggravating factors matter in DWI sentencing.  And there’s one factor that seems to be confusing folks, particularly when it comes to ignition interlock violations. Here’s hoping this post clears it up.People convicted of impaired driving have their driver’s licenses revoked for a definite period, either one year, four years, or permanently, depending upon the person’s prior record. A person may apply to DMV to have his or her license restored after a one-year period of revocation ends or after two years of a four year or permanent revocation. If the DWI conviction is based on an offense in which the person had an alcohol concentration of 0.15 or more, or the person had a prior DWI within seven years, the person’s license is restored subject to an ignition interlock restriction. That restriction requires that the person (1) operate only a vehicle equipped with a functioning ignition interlock system of a type approved by DMV; (2) personally activate the ignition interlock system before driving the vehicle; and (3) not drive with an alcohol concentration that meets or exceeds the specified level of 0.04 or 0.00. Despite the fact that the person’s license is restored and is no longer revoked, driving in violation of any of these ignition interlock restrictions constitutes the offense of driving while license revoked.  Why is that?  Because the General Assembly said so.  G.S. 20-17.8(f) provides that a person who violates ignition interlock restrictions “commits the offense of driving while license revoked under G.S. 20-28(a) and is subject to punishment and license revocation as provided in that section.”

DWI sentencing implications. Driving while one’s license is revoked for an impaired driving revocation is a grossly aggravating factor for purposes of sentencing DWI.  See G.S. 20-179(c)(2).  And because ignition interlocks follow prior convictions, most people who commit DWI while subject to an ignition interlock requirement already have at least one other grossly aggravating factor, namely a prior DWI conviction within seven years.  Thus, if the ignition interlock violation also constitutes a grossly aggravating factor, the potential severity of the person’s sentence increases. The violation of an ignition interlock requirement imposed as a condition of license restoration does not, however, constitute an “impaired driving revocation.”  That term is defined in G.S. 20-28.2(a) as a revocation made under several specific statutes.  Recall that persons whose licenses have been restored are not, as a matter of fact, driving while their licenses are revoked.  But see G.S. 20-17.8(f) (providing, as a matter of law, that driving in violation of an ignition interlock requirement is driving while license revoked).  Thus, such persons are not revoked under any of the listed statutes.

Limited driving privileges are different.  A person whose license is revoked may, in limited circumstances, be awarded a judgment that authorizes the person to drive essential purposes. Such judgments are referred to as limited driving privileges. The General Assembly has specified that a person who violates the restrictions of a limited driving privilege that permits driving during the period of revocation imposed for conviction of DWI commits “the offense of driving while . . . license . . . revoked under G.S. 20-28(a).”  This makes sense. The person’s license is revoked. He or she is authorized to drive in limited circumstances, and he or she has driven in a manner not authorized. The grossly aggravating factor in G.S. 20-179(c)(2) does apply to DWI committed by a person driving pursuant to a limited driving privilege issued to allow driving following a DWI conviction (assuming the other elements of DWLR are satisfied).  That’s because the driver’s licenses of such persons are revoked pursuant to G.S. 20-17(a)(2), an impaired driving license revocation listed in G.S. 20-28.2(a).  The answer is no different when the limited driving privilege contains an ignition interlock restriction, as it must if the person had an alcohol concentration restriction of 0.15.

7 comments on “DWLR + DWI Does Not (Automatically) Equal a Grossly Aggravating Factor

  1. Try and challenge a DMV Hearing Officers Determination (Judgment, and get copies of the official Public Records. It only took me 1099 days of constant calls and emails to all levels of NC Government to get a copy of the Public Records. ‘Reasonable time?

  2. I am a prosecutor who has recently faced the issue of whether an interlock restriction violation is a grossly aggravating factor. I believe this situation is much less clear cut then indicated in this post. In fact, I feel there is a strong argument that it should in fact be considered a grossly aggravating factor.
    The restoration of a driver’s license involving the requirement to have an ignition interlock is found in G.S. 20-17.8. The scope of this section indicates that it applies to a person “revoked as a result of a conviction of driving while Impaired, G.S. 20-138.1.” (See 20-17.8(a)).
    Pursuant to the statute, a person’s license can be restored with conditional requirements as a part of that restoration. I would argue that any driving behavior that is outside those requirements is still driving on a revoked license that is an “impaired driving revocation” pursuant to the original conviction under G.S. 20-138.1.
    This is consistent with G.S. 20-17.8 (f) where it states that any person who violates the restriction “commits the offense of driving while license revoked.” It does not make sense and is not consistent with any other charge of driving with license revoked for a person to be revoked without a reason for that revocation. Something has to have caused the revocation. The original post assumes that 20-17.8(f) creates a new offense of driving with license revoked, one that is not covered by 20-28(a). However, this assertion leads to a charge where no actual revocation exists on a defendant’s license, even though they are guilty of driving with license revoked.
    It makes much more sense, and makes the statute more consistent, when the suspension listed in the opening of this same section is also applied to the defendant. The scope of the statute, G.S. 20-17.8(a) indicates that this section only applies to an individual who’s license was revoked pursuant to G.S. 20-138.1. The charge of driving with license revoked in G.S. 20-17.8(f) is based on this same revocation.
    Also, the statute goes on to say that if the defendant has alcohol in his system, “the suspected offense of driving while license revoked “is an alcohol-related offense subject to the implied consent provisions of G.S. 20-16.2”. (It should be noted when interpreting the statute that this section is almost a verbatim copy of G.S. 20-179.3(j) which is the statute governing Limited Driving Privileges, violations of which are agreed to be sufficient for the grossly aggravating factor.) The fact that this offense of driving with license revoked should be punished as an “alcohol-related offense” supports the interpretation of this revocation being pursuant to G.S. 20-138.1.
    In order to be a grossly aggravating factor under 20-179 a defendant must drive “while his driver’s license was revoked under G.S. 20-28” and the revocation must be “an impaired driving revocation under G.S. 20-28(a). The first requirement is explicitly met on a violation of an ignition interlock under 20-17.8(f). To meet the second requirement, a revocation must be “pursuant to” any of a specific list of statutes, including G.S. 20-17(a)(2) (Referring to suspensions based on convictions of G.S. 20-138.1).
    Looking at the Ignition Interlock statute, I think there is a strong argument that the suspension in G.S. 20-17.8 (f) is pursuant to G.S. 20-17(a)(2). If a court were to agree, then a violation of an ignition interlock would in fact be a grossly aggravating factor.

  3. If you follow Frank’s line of reasoning (and I do), then would the vehicle be subject to seizure under 20-28.2?

  4. The motor vehicle is not subject to seizure for the same reason that the grossly aggravating factor does not apply. Revocations under G.S. 20-17.8(f) are not impaired driving license revocations. See G.S. 20-28.2(a). In addition to its failure to account for the governing statutory language, Frank’s argument fails to account for the situation in which a person’s license is fully restored with an ignition interlock requirement. A person convicted of a first-time DWI based on a 0.15 alcohol concentration may have his or her license restored after one year. The restoration is not “conditional.” The person’s license is fully restored, albeit with an ignition interlock restriction. The person is no longer revoked pursuant to any of the statutes listed in G.S. 20-28.2(a).

  5. My client had a permanent revocation for multiple DWI’s for 10 years, DMV conditionally restored him with interlock for 4 months, then he somehow violated the interlock restriction and DMV cancelled the conditional restoration and reinstated the permanent revocation. Is this reinstated perm revocation a DWI revocation under 20-28.2(a)?
    Also, which of the categories of revocation referenced by 20-28.2(a)(DWI revocations) includes permanent revocation for multiple DWI’s? And is permanent revocation for multiple DWI’s codified by a statute?

  6. If a violation of 20-17.8(f) is NOT an impaired driving revocation because the license has been restored (subject to the interlock installation and .04), and the offense is driving while license revoked, then would the person be eligible for a Limited Driving Privilege under 20-20.1? My concern stems from the eligibility requirement of 20-20.1(b)(3) where the “person’s underlying offense is not an offense involving impaired driving.” If I’m reading your post correctly, I believe the underlying offense would be DWLR and NOT impaired driving since the revocation period (in this case, 1 year) has expired and the license was restored (with a .04 restriction and the ignition interlock), even though the .04 ORIGINALLY stems from an impaired driving revocation.

    20-17.8(f) and (g) differentiate between violations where a person is charged by an officer (1 year revocation if convicted) and violations based on a reading from the ignition interlock (“shall have the person’s license revoked by DMV for 1 year”). If the person is NOT charged by an officer with the offense of DWLR under 20-28(a), and was instead only revoked due to an ignition interlock reading above .04, would this still make them eligible for a Limited Driving Privilege under 20-20.1?

  7. […] Ignition interlock amendment. Not all of the provisions of H 529 afford relief to defendants, however. The act amends G.S. 20-17.8(f) to specify that a person subject to an ignition interlock restriction who violates the restriction commits the offense of driving while license revoked for impaired driving under G.S. 20-28(a1) and is subject to punishment and license revocation as provided in that section. This is a change from what current law provides. […]

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