Limited Driving Privileges Following Out-of-State DWI Convictions

I’ve written several posts (the latest one here) about the availability of a limited driving privilege for a person whose driver’s license is revoked upon conviction of impaired driving in violation of G.S. 20-138.1. A limited driving privilege is a judgment issued in the discretion of the court authorizing a person with a revoked driver’s license to drive, for limited purposes and at limited times, during the period of the revocation. As none of the earlier posts discussed the circumstances in which a person who is convicted of impaired driving in another state or in federal court may obtain a limited driving privilege from a North Carolina court, this one will.

G.S. 20-179.3(b) provides that a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction that is substantially similar to impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege if he or she would have been eligible for it had the conviction occurred in North Carolina. You can read more here about the eligibility requirements for North Carolina DWI convictions. In general, they require that the person (1) have been punished at Level Three, Four, or Five, (2) have been validly licensed at the time of the offense, (3) not have a qualifying prior impaired driving conviction, (4) not have a subsequent conviction or unresolved charge for impaired driving, and (5) have a substance abuse assessment and furnish proof of financial responsibility. Even if a person’s out of state conviction satisfies the “substantially similar” criteria and the person meets the enumerated eligibility requirements, the person still must demonstrate that his or her North Carolina driver’s license was revoked, a requirement that significantly reduces the universe of eligible persons.

A few examples might help demonstrate the impact of this limitation.

Howard Henderson:  An NC resident with an out-of-state DWI conviction

Suppose that Howard Henderson, a North Carolina resident with a North Carolina driver’s license, drives while impaired while vacationing in Pennsylvania. Henderson subsequently is convicted in Pennsylvania of driving while impaired. Pennsylvania, one of the 46 states that is a member of the Drivers License Compact, reports the conviction to the North Carolina Division of Motor Vehicles (NC DMV). See 75 Pa. Cons. Stat. Ann. § 1581 (West) (requiring the “licensing authority of a party state [to] report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee”); cf. G.S. 20-4.24(a) (requiring that member states report a conviction for “[d]riving a motor vehicle while impaired”).

After receiving the report, NC DMV revokes Henderson’s driver’s license pursuant to G.S. 20-4.24(b), which requires that North Carolina give the same effect to a report of a conviction in a member state of driving a motor vehicle while impaired that it would give to a North Carolina conviction of impaired driving, and G.S. 20-17(a)(2), which requires NC DMV to revoke the license of any driver upon receiving a record for his conviction of impaired driving under G.S. 20-138.1. Cf. Hoenisch v. Com., Dept. of Transp., Bureau of Driver Licensing, 785 A.2d 969, 973 (Pa. 2001) (concluding that a conviction under G.S. 20-138.1 provides a sufficient basis for a reciprocal driver’s license suspension in Pennsylvania).

Given that Henderson’s North Carolina driver’s license was revoked, he is eligible for a limited driving privilege under G.S. 20-179.3 if meets the other eligibility requirements noted above. Henderson must file his application for a privilege with the clerk in duplicate, and a hearing on his application may be held a reasonable time after the clerk files a copy of the application with the district attorney’s office. G.S. 20-179.3(d).

The North Carolina Administrative Office of the Courts (AOC) has created a form petition for seeking such a limited privilege, AOC-CV-350, as well as a form privilege, AOC-CV-352. Because there is no existing North Carolina criminal case for such petitions to accompany, the AOC has directed clerks to establish these sorts of limited driving petitions as civil cases and to collect the appropriate civil filing fees. (I am hoping that our fearless blog leader, Professor Welty, has stopped reading by now. Otherwise he may kick this entire piece off the criminal law blog.)

Since Henderson was convicted of impaired driving in a jurisdiction other than North Carolina, the hearing must be scheduled before the chief district court judge of the district court district in which Henderson resides. G.S. 20-179.3(d). If the Pennsylvania court imposed a term of nonoperation of a motor vehicle, then Henderson may apply for the limited driving privilege only after having completed at least sixty days of that term. G.S. 20-179.3(c).

Howard Henderson 2.0:  An NC resident with an out-of-state DWI conviction in his former home state

Suppose, however, that Henderson was a Pennsylvania resident licensed in Pennsylvania at the time he drove while impaired. Assume further that Henderson’s alcohol concentration at the time he drove while impaired was 0.10, which resulted in a one-year revocation of his Pennsylvania driver’s license. See 75 Pa. Cons. Stat. Ann. § 3804(e) (West). Pennsylvania will not report Henderson’s conviction to any other state, since Henderson is a Pennsylvania resident with a Pennsylvania driver’s license. Suppose Henderson moves to North Carolina two months after his Pennsylvania conviction for impaired driving. Henderson is ineligible to obtain a North Carolina driver’s license because of the Pennsylvania revocation. See G.S. 20-4.25 (prohibiting member state from issuing a license if the applicant has held a license in another member state that has been revoked and the revocation period has not ended). And Henderson will not be eligible for a limited driving privilege under G.S. 20-179.3 because, even though he has no North Carolina driver’s license and no reciprocal privilege to drive in North Carolina, his North Carolina driving privileges have not been revoked. Cf. 20-22 (permitting NC DMV to revoke the driving privileges of nonresidents “in like manner and for like cause as a driver’s license” issued by NC DMV); G.S. 20-23.1 (permitting NC DMV to revoke the operating privileges of a person who does not have a driver’s license “in like manner as it could suspend or revoke his license if such person held a driver’s license”).

Charlene Connor:  An NC resident with a federal DWI conviction

Consider next the circumstances of Charlene Connor, a North Carolina resident with a North Carolina driver’s license who is convicted in federal court of driving while impaired on the military base at Fort Bragg. See 18 U.S.C. § 13 (assimilating state law crimes for areas within federal jurisdiction). Upon receiving notice of Connor’s conviction, NC DMV is authorized to revoke Connor’s license. See G.S. 20-23.2. As a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction, Connor is eligible, upon satisfying other requirements, to obtain a limited driving privilege under G.S. 20-179.3. Her application, like Henderson’s in the first example above, must be filed with the chief district court judge in the district in which she resides.

Charlene Connor:  An out-of-state resident with a federal DWI conviction

Next suppose that Ms. Connor is an active-duty soldier stationed at Fort Bragg, who is licensed to drive by her home state of Texas. In this example, Connor is ineligible to obtain a limited driving privilege under G.S. 20-179.3 following her conviction of impaired driving in federal court because her North Carolina driving privileges have not been revoked. Perhaps Connor could spur NC DMV to act to revoke her driving privileges as a nonresident under G.S. 20-22 and thereby render herself eligible for a privilege under G.S. 20-179.3, but this seems an impractical solution.

Practitioners:  Have your say

Practitioners, is the eligibility gap that I have identified above significant in practice? Have you attempted to gain driving privileges for Henderson and Connor 2.0 in the examples above?  If so, please use the comment feature to share your on-the-ground perspective.