Avoiding Ignition Interlock by Pleading Guilty

Tag Archives: interlock

Avoiding Ignition Interlock by Pleading Guilty

Posted on June 3, 2013 by Shea Denning

As state crime lab backlogs increase, it takes longer and longer for blood drawn in connection with impaired driving cases to be tested.

In some of these cases, the State may opt to proceed to trial without the results. And sometimes defendants are eager to plead guilty before such blood is tested.

A defendant who believes that her alcohol concentration was 0.15 or more may determine that even without the blood test results, there is an abundance of evidence to establish her guilt. And, if by pleading guilty, the defendant can avoid having the blood tested, then she also can avoid the requirement that she have ignition interlock installed on all of her vehicles for a year following the restoration of her driver’s license.

A few questions arise in the context of such pleas.

May a judge accept such a plea knowing that the blood has not yet been tested?

Yes.

G.S. 20-139.1(e2) (discussed here) requires that an implied consent case in district court “be continued until the analyst can be present.” For this requirement to apply, however, the State must seek a continuance. Moreover, G.S. 20-139.1(e2) primarily addresses circumstances in which a chemical analyst’s affidavit may be admitted into evidence under G.S. 20-139.1(e1). The continuance requirement thus applies in circumstances in which the analysis already has been performed. The statute does not require continuance so that an analysis may be performed.

May a district attorney agree not to seek a continuance and call such a case for arraignment and trial in order for the defendant to plead guilty?

Yes.

An alcohol concentration of 0.15 or more is an aggravating factor in an impaired driving case sentenced under G.S. 20-179. The prosecutor is required to present all aggravating factors of which he is aware and also is required “[i]n every instance in which a valid chemical analysis is made of the defendant” to “present evidence of the resulting alcohol concentration.” G.S. 20-179(a)(2). Here, however, no chemical analysis has yet been performed. Thus, these statutory requirements are not implicated.

How does a district attorney prevent the blood from being tested in such cases?

The district attorney submits a “Case Disposition Notice” notifying the state crime lab that the case has been disposed of and that the analysis does not need to be completed.

What if the blood is tested after the defendant’s guilty plea?

This might occur if the prosecutor doesn’t submit a notification that the analysis does not need to be performed or if the blood is tested before the request is received.

In such circumstances, a defendant who pleads guilty to avoid ignition interlock may not receive the benefit she expected. Upon completing its analysis, the state crime lab will submit the chemical analyst’s affidavit directly to DMV as well as to the clerk and the district attorney. If the affidavit reflects an alcohol concentration of 0.15 or more, DMV will impose ignition interlock pursuant to G.S. 20-17.8, which requires that “the results of a chemical analysis, as shown by an affidavit or affidavits executed pursuant to G.S. 20-16.2(c1)” be used by DMV to determine a person’s alcohol concentration.

Category: Motor Vehicles, Procedure, Uncategorized | Tags: blood draws, blood tests, crime lab, DWI, ignition interlock, interlock, sbi

The Government in Your Dashboard

Posted on December 19, 2012 by Shea Denning

The National Transportation Safety Board (NTSB) thinks states ought to require ignition interlock as a condition of driving for anyone convicted of DWI, including first-time offenders. So does the U.S. Congress. The NTSB made its recommendation last week as part of its report on a special investigation into vehicle crashes occurring as a result of wrong-way driving. And a provision of the highway safety bill adopted by Congress last summer provides grants to states that require ignition interlock for everyone convicted of DWI. Moving Ahead for Progress in the 21st Century Act, Pub. L. 112-141.

North Carolina currently requires ignition interlock as a condition of regaining a driver’s license for persons whose licenses were revoked for a DWI conviction and who (1) had an alcohol concentration of 0.15 or more; (2) were convicted of another offense involving impaired diving within seven years of the offense for which the person’s license is revoked; or (3) were sentenced at Aggravated Level One, the highest level of punishment for a misdemeanor DWI. G.S. 20-17.8. So our state’s ignition interlock requirements would have to be expanded to comply with the NTSB recommendation and to render North Carolina eligible for the newly authorized grant funding.

The NTSB concluded that installing ignition interlocks on the vehicles of all DWI offenders would reduce accidents caused by alcohol-impaired drivers. But the board’s recommendations related to in-vehicle alcohol detection systems extended beyond this group of identified offenders. The NTSB recommended that car manufacturers and the government accelerate the development of in-vehicle technology to prevent alcohol-impaired driving. The Automotive Coalition for Traffic Safety and the National Highway Transportation Safety Administration already are working to develop such technology through a cooperative research agreement dubbed the Driver Alcohol Detection System for Safety (DADSS) program.

The DADSS program assumes that current interlock systems would not be acceptable for widespread use among the public because they require drivers to provide breath samples by blowing into a device every time they attempt to start their vehicles. DADSS has identified two less intrusive alternatives. The first is a touch-based approach that would measure the alcohol concentration in a person’s skin. The second would employ sensors in a vehicle to measure a driver’s exhaled breath.

Elon University law professor Michael Rich opined in this article published in The New York Times that the DADSS program might be one of the limited instances in which the government can employ technology to prevent crime without unduly burdening individual freedom. Michael L. Rich, The Perfect Non-Crime, The New York Times, August 6, 2012. Professor Rich reasoned that because impaired driving is forbidden regardless of the actor’s state of mind, government action that makes the crime impossible to commit (by disabling the car’s ignition) does not impermissibly intrude upon the free will of the driver.

Still, there are some who find objectionable the idea of this kind of in-vehicle technology. Readers, share your views on the matter through this on-line poll.

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Category: Motor Vehicles, Uncategorized | Tags: DWI, impaired driving, interlock

License Revocations and Limited Driving Privileges for High-Risk Drivers

Posted on May 30, 2012 by Shea Denning

I wrote here about several types of driver’s license revocations that can result from a person being charged with and convicted of impaired driving under G.S. 20-138.1 as well as about a driver’s ability to obtain a limited driving privilege to mitigate the effects of the revocation that occurs upon conviction. The earlier post omitted any discussion of additional licensure consequences and limited privilege restrictions that are specific to a defendant convicted of impaired driving based upon a blood alcohol concentration of 0.15 or more, ramifications that I will explore in this post.

As is the case for any person convicted of impaired driving in violation of G.S. 20-138.1, a person so convicted based on an alcohol concentration of 0.15 is subject to a license revocation of at least one year. G.S. 20-17(a)(2); G.S. 20-19(c1). The revocation period is longer if the person has one or more qualifying prior convictions. G.S. 20-19(d), (e1). Such a person may, if he or she is otherwise eligible for a limited driving privilege under G.S. 20-179.3, obtain such a privilege authorizing limited driving during the period of revocation. If, however, evidence that the person had an alcohol concentration of 0.15 or more was presented at trial or sentencing, the limited privilege must contain additional restrictions that reflect the person’s status as a “high-risk driver.” G.S. 20-179.3(c1).

Limited Driving Privilege Requirements for High-Risk Drivers

A limited privilege issued to a high-risk driver must:

(1) not become effective until at least 45 days after the final conviction under G.S. 20-138.1;

(2) restrict the driver to operating only a designated motor vehicle;

(3) require that the designated motor vehicle be equipped with functioning ignition interlock system of a type approved by the Commissioner of NC DMV, which is set to prohibit driving with an alcohol concentration greater than 0.00;

(4) require that the driver personally activate the ignition interlock system before driving the motor vehicle; and

(5) restrict the applicant to driving only to and from the applicant’s place of employment, the place the applicant is enrolled in school, any court ordered treatment or substance abuse education, and any ignition interlock service facility.

G.S. 20-179.3(c1);(g5). AOC-CR-341 is the form for such privileges.

For purposes of determining whether the person qualifies as a high-risk driver, G.S. 20-179.3(c1) provides that the results of a chemical analysis presented at trial or sentencing are sufficient to prove a person’s alcohol concentration, are conclusive, and are not subject to modification by any party, with or without approval of the court.

Exception for Employer-Owned Motor Vehicles

The ignition interlock restrictions for a limited driving privilege that are set forth as requirements (2), (3), and (4) above do not apply to a motor vehicle that is owned by the driver’s employer and that the driver operates solely for work-related purposes if the owner of the vehicle files with the court a written document authorizing the driver to drive the motor vehicle for work-related purposes under the authority of the limited driving privilege. G.S. 20-179.3(g4). This exception to ignition interlock requirements is unique to the limited privilege; there is no such exception to ignition interlock requirements that apply after the period of revocation ends and a person’s license is restored. G.S. 20-17.8.

License Restoration

A limited driving privilege issued pursuant to G.S. 20-179.3 is effective only during the period of revocation imposed pursuant to G.S. 20-17(a)(2). At the conclusion of the revocation period, a person may apply to NC DMV to have his or her license restored. See G.S. 20-7(i1) (imposing $100 restoration fee for person revoked under G.S. 20-17(a)(2)); G.S. 20-17.6 (imposing requirements for restoration of license following conviction of driving while impaired); G.S. 20-17.8 (imposing ignition interlock requirements upon restoration). If NC DMV receives an affidavit pursuant to G.S. 20-16.2(c1) stating that the driver had an alcohol concentration of 0.15 or more, the person’s license may be restored (after a period of revocation following conviction of impaired driving under G.S. 20-138.1) only with an ignition interlock restriction providing that:

(1) the driver may operate only a vehicle that is equipped with a functioning ignition interlock system of a type approved by the Commissioner of NC DMV;

(2) the driver must personally activate the ignition interlock system before driving the vehicle; and

(3) the driver may not drive with an alcohol concentration of 0.04 or more. (An alcohol concentration restriction of 0.00 is required if the driver also was convicted, based on the same circumstances, of (i) driving while impaired in a commercial vehicle; (ii) driving while less than 21 after consuming alcohol or drugs; (iii) death by vehicle or serious injury by vehicle; or (iv) manslaughter or negligent homicide resulting from the operation of a vehicle when the offense involved impaired driving.)

G.S. 20-17.8(b). An alcohol concentration restriction of 0.04 combined with an ignition interlock restriction is noted on a person’s license as restriction 20. An alcohol concentration restriction of 0.00 combined with an ignition interlock restriction is noted on a person’s license as restriction 22.

These requirements are in effect for (1) one year from the date of restoration if the original revocation period was one year; (2) three years from the date of restoration if the original revocation period was four years; or (3) seven years from the date of restoration if the original revocation was a permanent revocation. G.S. 20-17.8(c). If the person was eligible for and received a limited driving privilege under G.S. 20-179.3, with the ignition interlock requirement contained in G.S. 20-179.3(g5), the period of time for which the limited driving privilege was held must be applied toward the requirements of G.S. 20-179.3(c). Thus, a high-risk driver subject to a one-year revocation who was issued a limited driving privilege on the forty-sixth day after the revocation is required to maintain ignition interlock for only forty-five additional days post-restoration.

A person subject to the ignition interlock requirement as a condition of license restoration must equip all the vehicles he or she owns with ignition interlock. G.S. 20-17.8(c1). NC DMV may grant an exception to the requirement that all vehicles be so equipped for vehicles that are relied upon by another member of the person’s family for transportation and are not in the possession of the affected driver. Id. So, for example, if a driver owns a motor vehicle that is driven by and in the possession of the driver’s son or daughter who is attending college and lives outside the family home, the college student’s motor vehicle does not have to be equipped with ignition interlock.

Approved Ignition Interlock Providers

As noted earlier, to satisfy the requirements for both limited driving privilege and license restoration purposes, the ignition interlock system installed must be of a type approved by the Commissioner of NC DMV. NC DMV issued in February 2011 new ignition interlock program standards and procedures. A kerfuffle ensued upon their adoption between NC DMV and the longstanding and exclusive provider of ignition interlock services, Monitech, Inc., which was not initially certified under these standards. Two lawsuits filed by Monitech were settled a few months ago pursuant to an agreement that allows Monitech to continue serving as an ignition interlock provider for existing customers and permits Monitech to accept new customers until July 31, 2012, a date by which NC DMV will have completed its review of the company’s new certification application. See Craig Jarvis, Morrisville ignition-lock company Monitech settles with DMV, News and Observer, March 22, 2012. Smart Start Inc. is the only company currently certified under the new standards.

Category: Motor Vehicles, Sentencing, Uncategorized | Tags: DWI, high risk drivers, impaired driving, interlock

DWLR Based upon an Ignition Interlock Violation

Posted on April 5, 2010 by Shea Denning

Last month, the North Carolina court of appeals decided State v. Graves, No. COA09-595 (March 16, 2010), a case involving the defendant’s appeal from his convictions for felony speeding to elude, driving while license revoked (DWLR), reckless driving to endanger, and impaired driving. The court vacated the defendant’s conviction for DWLR on the basis that the state did not present sufficient evidence that defendant committed that crime, a point conceded by the state in its brief, and upheld the other convictions.

Given the state’s concession that the evidence of DWLR was insufficient, the court did not discuss the point in any detail in its opinion. But I was curious so I read the briefs and reviewed the record on appeal.

Turns out that Graves had two prior convictions for impaired driving—one in 1998 and another in 2004. As a result, when his license was restored in 2006, it was restored with a restriction that he operate only a vehicle equipped with ignition interlock (for one year), see G.S. 20-17.8(a)(2), (b), and that he not drive with an alcohol concentration greater than 0.00 (for three years), see G.S. 20-19. Both restrictions applied when Graves drove a friend’s car on July 24, 2007 in the incident giving rise to the charges. There was no ignition interlock on the vehicle; moreover, Graves was driving while impaired.

G.S. 20-17.8(f) provides that a person who violates an ignition interlock restriction “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.” Accordingly Graves was indicted for DWLR. The indictment alleged that he “operate[d] a motor vehicle on a public street or highway, while the defendant’s drivers license was revoked or suspended” in violation of G.S. 20-28(a).

Graves moved to dismiss all of the charges at the close of the evidence, but did not specify that the basis for his motion as to the DWLR charge was a fatal variance between the indictment and the proof at trial. The judge delivered the pattern jury instruction for DWLR (NCPI Crim 271.10), instructing the jury that one element of the offense was that the defendant’s license be suspended. Graves lodged no objection to these instructions.

The jury found Graves guilty of DWLR, and Graves was sentenced to 120 days imprisonment for this conviction, which was consolidated with Graves’ conviction for reckless driving.

Graves argued on appeal that proof of driving in violation of an ignition interlock restriction did not establish that he drove while his license revoked, an element of DWLR—notwithstanding the provision in GS 20-17.8(f) to the contrary. Graves contended that because his license was not revoked, he could not be convicted of DWLR, though “[t]o be sure, he was liable to punishment under the provision.” He argued that he could have been convicted upon a charge “differently pled,” and “tried to a jury properly instructed.”

Surprisingly, the State conceded in its brief that “the defendant was charged with an offense that he did not commit,” agreeing that Graves “should have been charged with operat[ing] a motor vehicle on a public highway in violation of a restrictive driving privilege pursuant to N.C. Gen. Stat. 20-17.8(f).” (emphasis in original, internal quotation omitted). But driving in violation of ignition interlock restrictions is DWLR in violation of 20-28(a). G.S. 20-17.8(f) doesn’t merely state that a person who drives in violation of ignition interlock restrictions is subject to punishment and revocation pursuant to GS 20-28(a). It also states that a person “who violates any of the restrictions of G.S. 20-17.8 commits the offense of driving while license revoked under G.S. 20-28(a).” (emphasis added)

While the evidence at Graves’ trial arguably varied from the indictment, all such variances are not fatal. See, e.g., State v. Lilly, ___ N.C. App. ___, 673 S.E.2d 718 (2009); State v. Hussey, ___ N. C. App. ___, 669 S.E.2d 864 (2008). Arguably, the indictment against Graves correctly identified the offense charged (a violation of 20-28(a)), was sufficiently specific to protect Graves from being charged twice with the same offense, and gave Graves a basis on which to prepare his defense by identifying that the status of his license on the date of the offense was in question.

In light of Graves, prosecutors proceeding on a statement of charges or indictment alleging DWLR based upon an ignition interlock violation should take care to ensure that the charging document sets forth the correct theory for the G.S. 20-28(a) offense and that the jury instructions set forth the requisite elements of proof under this theory. There is no pattern jury instruction for DWLR based upon an ignition interlock violation, but as always, your friends at the School of Government stand ready to help.

Category: Crimes and Elements, Motor Vehicles, Procedure, Uncategorized | Tags: driving while license revoked, dwlr, graves, interlock

Ignition Interlock for All

Posted on October 26, 2009 by Shea Denning

The New York Times published this editorial last week advocating that all people convicted of impaired driving – including first-time offenders – be required to install ignition interlocks in their vehicles. The editorial was prompted by California Governor Arnold Schwarzenegger’s signing of legislation imposing such a requirement for several California counties. Ignition interlock is a small electronic device wired to a car’s ignition system. To start the ignition, the driver must blow into the device, which measures the concentration of alcohol in his or her breath. If the amount of alcohol exceeds the established threshold, the car will not start. The driver also must submit breath samples at random intervals while driving. According to Monitech, the only approved ignition interlock provider in North Carolina, these rolling retests are designed to deter drinking while driving as well as the ruse of leaving the car idling outside a watering hole. If the driver fails a rolling retest, a vehicle alarm sounds for all the world to hear.

The Times editorial echoes arguments expressed by others, including Philip Cook, professor of public policy at Duke University: one-third of impaired driving offenses involve repeat offenders and ignition interlock has demonstrated the potential to reduce this recidivism and thereby save lives. Indeed, LaDoris Cordell, a retired state court judge in California, wrote a compelling piece for Slate bemoaning the decades it had taken for her state to embrace this “common sense and basic safety” measure. (Hat tip: Sentencing Law and Policy.)

Most states, including North Carolina, already require ignition interlock for repeat offenders and drivers deemed “high risk” due to a conviction for impaired driving based upon an alcohol concentration of 0.15 or more. G.S. 20-179.3 mandates ignition interlock as a condition of any limited driving privilege issued to a person convicted of impaired driving based upon an alcohol concentration of 0.15 or more and permits a judge to impose ignition interlock as a condition of any limited driving privilege. G.S. 20-17.8 requires DMV to mandate ignition interlock as a condition of restoring a driver’s license to a person convicted of impaired driving based upon (a) an alcohol concentration of 0.15 or more or (b) commission of a second impaired driving offense within seven years after a prior impaired driving conviction. The duration of the interlock requirement is one, three, or seven years, depending upon the length of the original revocation period. Pursuant to G.S. 20-28, DMV also must require ignition interlock as a condition of license restoration for persons convicted of driving while license revoked when the person’s license was originally revoked for an impaired driving offense and an assessment reveals that the person abuses alcohol.

According to the Times, 11 states now require ignition interlock for first-time offenders. Professor Cook provides several reasons why ignition interlock has not reached its full safety potential. Judges don’t order installation, even when required. Offenders don’t install interlock even when ordered, and courts lack the resources or integration with their motor vehicle departments necessary to monitor compliance. Finally, interlock is too expensive. Monitech charges $70 for installation and requires that the first two months of the $60 per month equipment lease be paid at the time of installation. As a result, a person seeking to have an interlock installed in North Carolina must pay nearly $200 in up front costs.

Professor Cook opines that better oversight by and coordination among authorities would help interlock implementation, along with efforts to make the devices affordable. New Mexico, which reportedly has experienced a 65 percent decrease in impaired driving recidivism due to ignition interlock use, established a fund to help defray the cost for low-income people. Cook also advocates for tying interlock duration periods directly to substance abuse treatment requirements in order to extend the benefits of the device beyond the period of its installation.

The Times editorial concludes by suggesting that Congress condition federal highway money on states requiring ignition interlock for all convicted impaired drivers. And though the Times does not go this far, it is certainly possible that ignition interlock technology in the coming decades will become safety equipment as standard as, say, seat belts and airbags. Sound far-fetched? In 2008, Volvo began manufacturing cars with fully integrated in-car “alcolocks” with the goal of preventing impaired driving. To date, Sweden, which partially funded the technology’s development, is Volvo’s biggest market for the product.

Chime in with your thoughts and experiences on the efficacy of ignition interlock and its future.

Category: Sentencing, Uncategorized | Tags: DWI, interlock

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