Limited Driving Privileges Following Revocations for Willful Refusals

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Several earlier posts (here, here and here) address the availability of a limited driving privilege for a person whose driver’s license is revoked upon conviction of impaired driving. Such a privilege allows a person to lawfully drive—for limited purposes at limited times—during the period of the revocation. I wrote here about DMV’s authority to revoke a person’s driver’s license for twelve months for willfully refusing a chemical analysis. I mentioned in passing here the availability of a limited driving privilege to authorize some driving during that period of revocation. Because I haven’t yet discussed the particulars of that privilege, I thought I’d do so now.

North Carolina’s implied consent laws, like their sister-provisions in other states, are designed to coerce persons suspected of driving while impaired and other alcohol-related offenses to participate in chemical testing without being physically forced to do so by the police. (See this earlier post on the theory of implied consent). The incentive for defendants to “voluntarily” submit to compulsory testing is provided by their desire to remain licensed; defendants are informed that if they refuse testing, their driver’s licenses will be revoked for a year. See G.S. 20-16.2(a)(1) (requiring that before a chemical analysis is administered a defendant be advised:  “Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances . . . .”). Obviously, the incentive to submit to testing would be greatly reduced if the ensuing refusal-based revocation had little impact on a person’s ability to drive. For that reason, it is not surprising that while G.S. 20-16.2(e1) authorizes judges to issue limited driving privileges to authorize driving for certain essential purposes during a refusal-based revocation period, that authority is closely circumscribed.

The most significant of these restrictions is that a person whose license is revoked for willfully refusing chemical testing becomes eligible for a limited driving privilege only after his or her license has been revoked for at least six months for the refusal and the underlying charge has been resolved. G.S. 20-16.2(e1).To satisfy the latter requirement, the underlying charge must have been disposed of other than by a conviction or the person must have been convicted of impaired driving under G.S. 20-138.1 and punished at Level Three, Four, or Five.  If the person was convicted, he or she must have complied with at least one of the mandatory conditions of probation for the level of punishment imposed.

To be eligible for a limited driving privilege, the person also must satisfy the following requirements:

  1. At the time of the refusal, he or she must have held a valid driver’s license or a license that had been expired for less than a year;
  2. At the time of the refusal, he or she must not have been convicted within the preceding seven years of an offense involving impaired driving;
  3. At the time of the instant refusal, he or she must not have willfully refused to submit to a chemical analysis under G.S. 20-16.2 in the preceding seven years;
  4. Subsequent to the refusal,he or she must not have any unresolved pending charges for or additional convictions of an offense involving impaired driving;
  5. He or she must have obtained a substance abuse assessment from a mental health facility and have successfully completed any recommended training or treatment program; and
  6. He or she must furnish proof of financial responsibility or establish that he or he is exempt from this requirement. A person who does not own a currently registered motor vehicle and who does not operate uninsured non-fleet private passenger vehicles owned by others—and who signs a certificate to this effect—is not required to furnish proof of financial responsibility.

If the refusal occurred in a case involving death or criminal injury to another person, no limited driving privilege may be issued.

The application and hearing provisions inG.S. 20-179.3that apply to limited driving privileges issued to militate against DWI-conviction-based revocations also apply to limited driving privileges issued under G.S. 20-16.2(e1). Thus, an application for a limited driving privilege under G.S. 20-16.2 must be filed with the clerk in duplicate, and a hearing on the petition may not be scheduled until a reasonable time after the clerk files a copy of the application with the district attorney’s office. Unlike hearings for limited privileges to counteract DWI-conviction-based revocations, which must be held by the judge who presided at trial if that judge is assigned to the district or set of districts, limited driving privilege hearings under G.S. 20-16.2(e1) may be held by any district court judge in the district in which the refusal occurred if the case was finally disposed of in district court. If the case was finally disposed of in superior court, the limited driving privilege hearing may be held by any superior court judge in the district or set of districts in which the refusal occurred. See G.S. 20-16.2(e1).

A limited driving privilege issued pursuant to G.S. 20-16.2(e1) authorizes a person to drive if the person’s license is revoked solely under G.S. 20-16.2 and G.S. 20-17(a)(2) (requiring revocation upon conviction of impaired driving). If the person’s license is revoked under any other provision, such as G.S. 20-13.2(b) or (c), which impose separate license revocations for persons under 21 who are convicted of impaired driving or who willfully refuse a chemical analysis, any limited driving privilege issued under G.S. 20-16.2(e1) is invalid.

Like the hearing provisions of G.S. 20-179.3, the driving restrictions that apply to limited driving privileges issued under that statute apply to limited driving privileges issued under G.S. 20-16.2(e1). Thus, such a privilege must restrict the applicant to essential driving related to his or her employment or education, maintenance of his or her household, community service ordered as a condition of probation, and emergency medical care. While the limited privilege may authorize driving for emergency medical care at any time, it may permit driving for maintenance of the applicant’s household only during standard working hours, which are 6:00 a.m. until 8 p.m. on Monday through Friday. The limited driving privilege may authorize driving for work-related purposes during standard working hours without specifying the times and routes that the driving must occur.

An applicant for a G.S. 20-16.2(e1) limited driving privilege who is required to drive during nonstandard working hours for an essential work-related purpose or to perform community service ordered as a condition of probation must present documentation of that need to the judge.  A limited driving privilege authorizing such driving outside nonstandard working hours must restrict that driving to the times and routes required.

Like limited privileges issued under G.S. 20-179.3, limited driving privileges issued pursuant to G.S. 20-16.2(e1) must prohibit the driver from consuming alcohol while driving and from driving at any time while he or she has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts. If, notwithstanding the person’s willful refusal to submit to testing, a chemical analysis was obtained reflecting an alcohol concentration of 0.15 or more, see G.S. 20-16.2(c) (providing that a “refusal does not preclude testing under other applicable procedures of law”), the limited privilege restrictions applicable to high-risk drivers (discussed here) must be imposed.

The Administrative Office of the Courts has promulgated a form order,AOC-CR-313, for use by judges in granting limited driving privileges under G.S. 20-16.2(e1).  In addition to its obvious utility to judges, the form, which references the statutory eligibility criteria and the applicable restrictions on driving, can serve as a helpful checklist for applicants seeking this form of relief.

2 comments on “Limited Driving Privileges Following Revocations for Willful Refusals

  1. In the scenario where the charge results in a conviction exactly six months after the start of the refusal revocation, there will be a six month gap between the end of the 20-16.2 revocation and the six months remaining on the 20-17 (conviction) revocation. I don’t believe the aoc cr 313 privilege covers the remaining six months of revocation. It came up when a client was charged with DWLR after the refusal privilege automatically expired. The practitioner needs to under stand that there have to be 2 privileges, one for the 12 month refusal period and one for any remaining revocation for the conviction. At least this is what I believe, does anyone know for sure? The refusal priv seems to cover both when it is in effect (6 months max).

  2. So when is a ‘charge of refusal’ not a ‘refusal’ when the person charged with the ‘refusal’ did not refuse, and repeatedly (6 times) complied with the Officers request to ‘blow’ into a testing device? I have been posing this question for over two years and three months, and have yet to get an answer.

    What is the purpose of a hearing under the authority of North Carolina General Statute (GS) 16.5 (g) to challenge the validity of the revocation Oder. This ‘right’ exercised by the person charged has had no effect. This ‘right’ exercised by the person charged has had no effect. It appears to have been a day wasted in the Court. In this matter the Oder was in fact ‘deemed’ to be invalid and was lacking any basis in fact. If the State’s prosecutor in open Court declares that the person Charged with refusal did not ‘in fact refuse’, and the Judge after hearing the testimony of the person charged, a witness to the fact that the charged person did not refuse, Signs an Oder declaring the Charge of Refusal Invalid, and it is entered into the Public Records, on what grounds is another State prosecutor moving the matter forward?

    This matter has been pending for over two years and two months AFTER a Judge determined the Charge invalid, and the only hearing that has been had is the one which came under GS 16.5 (g) that declared the Revocation Order based on the Affidavit that was summited by the LEO Invalid because the Charged person did not willfully refuse.

    In short the Affidavit which was submitted by the LEO was FALSE and misleading, and this issue has been heard, and the Statue clearly says it is NOT an appealable issue by either party the State or the Charged. It is final.

    In short the Affidavit which was submitted by the LEO was FALSE and misleading, and this issue has been heard.

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