Labor Day Q & A: Motor Vehicle Law Edition

Our family gathers at the coast for Labor Day weekend. You’d be amazed how many motor vehicle law questions my relatives can generate over the course of a few hours on the road and a few days in the sand and surf. What follows is a sampling of this weekend’s questions and my answers.

1. “A horse and buggy would be better in this traffic than a car. We’d get there just as fast and we’d save on gas. Maybe we should look into that. Can you drive a horse and buggy on the interstate?”

No, of course not.  You can’t drive a moped or ride a bicycle there either. Despite how obvious the answer seems, you’re not likely to find it unless you know where to look. The state Department of Transportation is authorized to make rules, regulations and ordinances for the use of state highways, which are codified in the state administrative code. See G.S. 136-18(5). The provision relevant to this inquiry is 19A NCAC 02E .0409, which makes it unlawful to “ride any animal, or to operate a bicycle or horse drawn wagon or any nonmotorized vehicle or moped on any interstate or other fully controlled access highway.”

The violation of any such rule promulgated by DOT is a Class 1 misdemeanor. See G.S. 136-18(5).

2. The delay was caused by an accident. We approach a fire truck, ambulance and state highway patrol trooper, all with their lights flashing, parked on the right shoulder of our side of the eight-lane highway. What are we supposed to do?

Move over, if possible; otherwise, slow down. When an emergency vehicle is parked or standing within 12 feet of a roadway with its warning light activated, the driver of an approaching vehicle must, as soon as it is safe, move the vehicle into a lane that is not the lane nearest the emergency vehicle and continue traveling in that lane until safely clear of the emergency vehicle. G.S. 20-157(f)(1) (note that these provisions also apply to public service vehicles). This requirement applies if the roadway has at least two lanes for traffic proceeding in the direction of the approaching vehicle and if the approaching vehicle may change lanes safely and without interfering with any vehicular traffic. If the roadway has only one lane for traffic in the direction of the approaching vehicle or if the approaching vehicle may not change lanes safely, the driver must slow the vehicle, operate it at a reduced speed and be prepared to stop until completely past the emergency vehicle.

Violation of the move over law is an infraction punishable by a hefty fine of $250.

3. Whew. We finally arrived. We are tired of driving, but need to go grocery shopping. Our nephew, James, is 15 and has a limited learner’s permit. Does one of his parents have to be in the car with him when he drives?

No. Neither of his parents is required to be in the car, but a supervising driver must be seated beside him in the front seat of the vehicle when it is in motion. See G.S. 20-11(c)(2). A supervising driver is a parent, grandparent, or guardian or a responsible person approved by the parent or guardian or DMV. See G.S. 20-11(k). A supervising driver also must currently be licensed and must have been licensed for at least five years.

4. Suppose we want to drive to dinner and have a few alcoholic drinks. Can James be our designated driver?

No. A person who is too impaired to drive is too impaired to serve as a supervising driver. G.S. 20-12.1 prohibits a person from serving as a supervising driver while under the influence of an impairing substance or after having consumed sufficient alcohol to have an alcohol concentration of 0.08 or more. A violation of G.S. 20-12.1 is an implied consent offense (which means the supervising driver can be hauled downtown and asked to take a breath test) and a Class 2 misdemeanor. See G.S. 20-35(a). What’s more, DMV is authorized to suspend the driver’s license of a person convicted of impaired instruction for the time period it deems “best for public safety,” so long as the period does not exceed six months. See G.S. 20-19(a).

5. I talk with (ok, lecture) my nephew about not drinking and driving. He asks whether it is “DWI” for a person under 21 to drive after having anything to drink. 

No. The impaired driving statute doesn’t have different thresholds for different ages. Instead, the impairment standard is the same for all drivers.  A person may not drive if he: (1) is under the influence of an impairing substance; (2) has consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of .08 or more; or (3) has any amount of a Schedule I controlled substance or its metabolites in his blood or urine. See G.S. 20-138.1(a). Driving by a person under 21 while consuming alcohol or while alcohol or an unauthorized controlled substance remains in his body is an entirely separate crime. See G.S. 20-138.3. The punishment isn’t as severe as it is for DWI.  A violation of G.S. 20-138.3 is a Class 2 misdemeanor. But a conviction of driving after consuming by a person under 21, like a conviction of DWI, results in a one-year revocation of the person’s driver’s license. See G.S. 20-13.2.

6. Without being asked, I tell my sister about how a 16-year-old with no criminal record who drives while impaired with another 16-year-old in the car commits a Level One DWI, which translates to a minimum of 30 days in jail. She is shocked. She tells me that I should travel around high schools telling young folks about this law.  I explain:

The DWI sentencing statutes were amended in 2011 to make it a grossly aggravating factor to drive with a child under the age of 18 in the vehicle. S.L. 2011-329 (discussed here). Before the amendments, it was a grossly aggravating factor to drive with a child under 16 in the vehicle. The 2011 legislation also required the judge to impose a Level One sentence if this particular grossly aggravating factor was present, even if no others applied. Before the law was changed, a Level One sentence could only be imposed if two grossly aggravating factors were present.

A Level One DWI is punishable by a minimum sentence of 30 days and a maximum of 2 years. G.S. 20-179(g). The sentence may be suspended, but any suspended sentence must require that the defendant serve 30 days of imprisonment. Amendments in 2012 permit a judge to reduce that minimum 30 day term to 10 days if the defendant is required to abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system for at least 120 days. SeeS.L. 2012-146, as amended by S.L. 2012-194.

(Now you are equipped to travel around high schools or family gatherings in my stead.)

7. Enough about alcohol. When our nephew turns 16 and gets his Level 2 limited provisional license, may he drive his younger sisters and his next-door neighbor to school?

He may drive his sisters, but not his next-door neighbor. Generally, a limited provisional license allows the license holder to drive unsupervised with no more than one passenger under 21 in the vehicle. G.S. 20-11(e)(4). An exception applies for passengers who are members of the license holder’s immediate family or whose primary residence is the same household as the license holder. But, if a family or household member who is under 21 is a passenger, no other passengers under 21 who are not members of the license holder’s immediate family or household may be in the vehicle.

Failure to comply with the restriction on passengers is an infraction punishable by a penalty of not more than $100. G.S. 20-11(l).

8. Whatever happened to dune buggies? Can you drive on the beach anymore?

A quick internet search reveals that dune buggies are still around. As for the second part of the question, the answer depends on which beach, what time of year, and what you are driving.

Municipalities are authorized to adopt ordinances regulating, restricting and prohibiting the use of dune or beach buggies, jeeps, motorcycles, cars, trucks, or any other form of power-driven vehicle on the foreshore, beach strand and the barrier dune system. See G.S. 160A-308. Violation of any such municipal ordinance is a Class 3 misdemeanor.

The Town of Emerald Isle, where we most frequently beach it, allows beach driving from September 15 until April 30 from 5 a.m. to 9 p.m. by persons with a beach driving permit.

9. Now for my favorite question. Can you drive barefoot?

Why sure. You can also drive in flip-flops, sandals, and five fingers. Just make sure the fashion police don’t catch you driving in white shoes after Labor Day.


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