No Privilege for You

Among the most frequently asked motor vehicle law questions is whether a person convicted of impaired driving for an offense that occurred when the person was less than 21 years old is eligible for a limited driving privilege.  The answer is no.  The reason?  No statute confers authority for the granting of a limited driving privilege for such a person.  Without such authority, the privilege is invalid.  G.S. 20-179.3(k).

The state’s Division of Motor Vehicles (DMV) has the exclusive power to issue, suspend, or revoke a persons’ driver’s license.  See Joyner v. Garrett, 279 N.C. 226 (1971); Smith v. Walsh, 34 N.C. App. 287 (1977). The General Statutes confer upon the courts, however, the authority to issue limited driving privileges—judgments that authorize a person with a revoked driver’s license to drive for certain essential purposes.  To be eligible for a limited driving privilege, a person must satisfy eligibility requirements defined by statute and demonstrate good cause for the issuance of the privilege.

When a person is convicted of impaired driving, DMV must revoke the person’s license pursuant to G.S. 20-17(a)(2). If the person was under 21 at the time of the offense, DMV also must revoke the person’s license pursuant to G.S. 20-13.2(b).  If the person was convicted of driving after consuming while under age 21 in violation of G.S. 20-138.3, the person’s license is revoked pursuant to G.S. 20-13.2(a).  Revocations under G.S. 20-13.2 endure for one year and run concurrently with any other revocations. G.S. 20-13.2 is somewhat misleadingly captioned “Grounds for revoking provisional license,” though its license revocation provisions apply to persons under 21, rather than exclusively to provisional license-holders, all of whom are under 18.  The incongruous reference resulted from the General Assembly’s failure to amend the title of G.S. 20-13.2, which formerly applied to only to provisional licensees, when it raised from 18 to 21 the age below which a person is prohibited from driving after consuming.  See S.L. 1995-506.

Judges are authorized by G.S. 20-179.3 to grant a limited driving privilege for a person whose license is revoked “solely under G.S. 20-17(a)(2) or as a result of a conviction in another jurisdiction substantially similar to impaired driving under G.S. 20-138.1.”  If the person’s license is revoked under any other statute, however, a limited driving privilege awarded pursuant to G.S. 20-179.3 is invalid.  G.S. 20-179.3(e).

While a person whose license is revoked solely for conviction of driving by a person under 21 after consuming alcohol or drugs in violation of G.S. 138.3 is eligible for a limited driving privilege if the person is 18, 19, or 20 years old on the date of the offense, has not previously been convicted of a violation of G.S. 20-138.3, and meets other eligibility requirements set forth in G.S. 20-179.3, see G.S. 20-138.3(d), a person convicted of impaired driving based upon the same conduct is ineligible for a limited driving privilege because his or her license also will be revoked pursuant to G.S. 20-17(a)(2).

And, other than G.S. 20-138.3(d), there is no limited privilege that authorizes driving during a period of revocation imposed pursuant to G.S. 20-13.2.  Indeed, G.S. 20-138.3(d) provides that “G.S. 20-179.3, rather than this subsection, governs the issuance of a limited driving privilege to a person who is convicted of [driving by a person under 21 after consuming] and of driving while impaired as a result of the same transaction.” As previously noted, G.S. 20-179.3 in turn authorizes a privilege only when a person is revoked solely under G.S. 20-17(a)(2).

What happens if a court issues a limited driving privilege not authorized by law?  Copies of all limited driving privileges that are issued must be sent to DMV. G.S. 20-179.3(k). Upon receiving a privilege that is invalid on its face, DMV must immediately notify the court and the holder of the privilege that it considers the privilege void and that DMV records will not indicate that the holder has a limited driving privilege. G.S. 20-179.3(k).

Readers may recall that the North Carolina Court of Appeals held in State v. Bowes, 159 N.C. App. 18 (2003), that the provision in G.S. 20-179.3k allowing DMV to declare void a limited privilege—a judgment of the court—gave DMV the power to reverse the district court.  The court of appeals concluded that this grant of authority violated the separation of powers clause in the state constitution, though it agreed with DMV’s determination that Bowes, who was under 21 at the time of the impaired driving offense, was ineligible for a limited driving privilege. But the state supreme court in State v. Bowes, 360 N.C. 55 (2005), vacated the court of appeals decision and dismissed the appeal as moot.  Thus, DMV continues to abide by the provisions of G.S. 20-179.3(k).