It is somewhat rare for one of my children to know more about recently enacted legislation than I do. But it happened a few weeks ago when the General Assembly adopted legislation that allows my sixteen-year-old to get his driver’s license without taking a road test. This post will cover that legislation and other recent amendments to the state’s motor vehicle laws.
Tag Archives: limited driving privilege
I spent much of the afternoon teaching magistrates, and one of the topics we covered was the immediate license revocation that often is ordered upon a person’s arrest for impaired driving.
Category: Motor Vehicles | Tags: 20-16.5, CVRs, DWI, license revocations, limited driving privilege, magistrate
School started back this week across the state, which means that many school buses are traveling the roadways. Buses in my neighborhood hit the pavement early—one drove by this morning shortly after 6 a.m.—and often still are completing their routes when commuters begin to drive home from work. The advent of a new school year is a good time to review the laws that prohibit motorists from passing stopped school buses and to discuss amendments to those provisions enacted by the General Assembly last session.
What is a school bus? School buses are easy to spot. They typically are painted yellow. G.S. 20-4.01(27)d4. The words “School Bus” are printed in large type on their front and rear. Id.; G.S. 20-217(b). They are equipped with alternately flashing red lights on the front and rear and a mechanical stop signal. They can be public, private or parochial vehicles.
When must drivers stop? The driver of a vehicle that approaches a school bus from any direction on the same street, highway, or public vehicular area must stop and remain stopped when (1) the bus is displaying its mechanical stop signal or flashing red lights and (2) is stopped for the purpose of allowing passengers to board or leave the bus. G.S. 20-217(a). The driver of the other vehicle may not move, pass, or attempt to pass the school bus until after (1) the mechanical stop signal has been withdrawn, (2) the flashing red stoplights have been turned off, and (3) the bus has started to move. Id.
What about divided roadways? An exception to the rule stated above applies to drivers traveling in the opposite direction from a school bus on a street that has been divided into two roadways that are separated by an intervening space (including a center lane for left turns if the roadway consists of at least four or more lanes) or by a physical barrier. Such a driver does not have to stop upon meeting and passing a school bus that has stopped in the roadway across the dividing space or physical barrier.
For their part, school bus drivers generally may not stop to allow passengers to board or leave the bus upon such a divided roadway if the passengers would be required to cross the roadway to reach their destination or to board the bus. G.S. 20-217(d). Passengers may, however, board or leave the bus at points on a divided roadway that they must cross if pedestrian and vehicle traffic is controlled by adequate stop and go traffic signals.
What’s the penalty? Passing a stopped school bus in violation of G.S. 20-217(a) is a Class 1 misdemeanor, which may not be disposed of by entry of a prayer for judgment continued. G.S. 20-217(e). Court appearance is mandatory for such charges; they are not the sort that may be paid and resolved by mail. Five driver’s license points are assigned to such a conviction if the driver was operating a noncommercial motor vehicle, eight if the person was driving a commercial motor vehicle. G.S. 20-16. Four insurance points apply, translating to an 80 percent increase in insurance rates.
If a driver willfully violates G.S. 20-217(a) and strikes any person, he is guilty of a Class I felony. If a driver willfully violates G.S. 20-217(a) and strikes any person, resulting in the death of that person, she is guilty of a Class H felony.
How are violators caught? Sometimes witnesses record the license plate of a motor vehicle and describe its driver. See, e.g., State v. Williams, 90 N.C. App. 120 (1988) (witness described car and driver and provided license plate number). Sometimes violations are recorded by cameras mounted on the school bus’s stop arm. G.S. 20-217(h) provides that “any photograph or video recording by a camera or video recording system shall, if consistent with the North Carolina Rules of Evidence, be admissible as evidence in any proceeding alleging a violation of [G.S.20-217(a)].” And, in the worst cases, when a child boarding a school bus is struck by a driver, the driver may stop. See, e.g., State v. Weston, 273 N.C. 275, 282, 159 S.E.2d 883, 887 (1968).
New legislation. S.L. 2013-293 (H 428) amended the penalty provisions of G.S. 20-217 and enacted new license revocation and registration hold provisions, effective for offenses committed on or after December 1, 2013.
- Mandatory Fines. The amendments require that a person convicted of a Class 1 misdemeanor for passing a stopped school bus pay a minimum fine of $500, a person convicted of a Class I felony pursuant to G.S. 20-217(g) pay a minimum fine of $1,250, and a person convicted of a Class H felony under this statute pay a minimum fine of $2,500. The act “encourages local boards of education to use the proceeds of any fines collected for violations of G.S. 20-217 to purchase automated camera and video recording systems to install on school buses to help detect and prosecutor violators.”
- License Revocation. New G.S. 20-217(g1) requires that DMV revoke for one year the driver’s license of a person convicted of a second misdemeanor violation under G.S. 20-217 within a three-year period. DMV must revoke for two years the driver’s license of a person convicted of a Class I felony under G.S. 20-217 and must revoke for three years the driver’s license of a person convicted of a Class H felony under G.S. 20-217. DMV must permanently revoke the driver’s license of any person convicted of a second felony under G.S. 20-217 and the driver’s license of any person convicted of a third misdemeanor for passing a stopped school bus. DMV may restore a license permanently revoked under G.S. 20-217 after two years (in the case of revocation for a third misdemeanor) or three years (in the case of revocation for a second felony).
- Commercial License Disqualification. New G.S. 20-17.4(o) provides that any person whose driver’s license is revoked under G.S. 20-217 is disqualified from driving a commercial motor vehicle for the period of the revocation.
- Limited Driving Privilege. A person whose license is revoked for a first felony conviction under G.S. 20-217 may apply to the sentencing court for a limited driving privilege after six months of revocation.
- Registration Hold. New G.S. 20-217(g2) and G.S. 20-54(11) prevent a person who fails to pay a fine or costs imposed pursuant to G.S. 20-217 from registering or renewing the registration for any motor vehicle he owns.
Public Safety. There were more than 1,300 misdemeanor charges for passing a stopped school bus in 2012. There were 3 felony charges statewide, two for striking a person and one for causing death. One doesn’t have to look far for a compelling reason to comply with G.S. 20-217. North Carolina’s school children are worth the wait.
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.
If a 0.15 alcohol concentration is not admitted at trial or sentencing, does it count for limited privilege purposes?
I discussed in an earlier post circumstances in which the Confrontation Clause may bar the admission at a sentencing hearing in an impaired driving case of a chemical analysis offered to prove an aggravating factor based on a 0.15 alcohol concentration. If the Confrontation Clause does require the exclusion of such evidence at sentencing upon objection by the defendant when the chemical analyst is not present to testify, it only operates to exclude the evidence for purposes of establishing an aggravating factor under the statute, which functions as the equivalent of an element of the offense of impaired driving. In contrast, to the extent the chemical analysis is offered to inform the judge’s exercise of discretion within the level of impaired driving established without reference to chemical analysis, the Confrontation Clause would not apply. This latter scenario is akin to use of evidence to inform sentencing discretion approved in State v. Sings, 182 N.C. App. 162 (2007), discussed in my earlier post.
I’d like to follow up by addressing how the exclusion of chemical analysis results based on the Confrontation Clause may affect the issuance of a limited driving privilege for a defendant with an alcohol concentration of 0.15 or more.
G.S. 20-179.3(c1) requires that any limited driving privilege issued to a person “convicted of an impaired driving offense with an alcohol concentration of 0.15 or more at the time of the offense” contain certain restrictions. First, the privilege may not become effective until 45 days after the final conviction. Second, the privilege must require ignition interlock. Third, the privilege may only allow driving to the applicant’s work or school, to court-ordered treatment or substance abuse education, and to any ignition interlock service facility. The statute provides that “the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove a person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.” Thus, it is clear that where a chemical analysis revealing an alcohol concentration of 0.15 or more is admitted at trial or at sentencing for purposes of proving the aggravating factor in G.S. 20-179(d)(1), any limited privilege issued to the defendant must contain the restrictions set forth in G.S. 20-179.3(c1).
But what if the results were admitted solely for the purpose of informing the judge’s exercise of his sentencing discretion? Or were not admitted at all? May the judge consider such results in awarding a limited driving privilege? The Confrontation Clause does not apply to such proceedings, which are not criminal prosecutions. Thus, the answer to these questions depends upon interpretation of the relevant statutory provisions.
As noted above, the limited privilege restrictions apply to persons convicted of an impaired driving offense with an alcohol concentration of 0.15 or more at the time of the offense. Does a defendant convicted of impaired driving and sentenced for that offense without a finding of an aggravating factor based on an alcohol concentration of 0.15 or more fall within this category? Or does this encompass only defendants whose convictions included the element-like sentencing factor of a 0.15 alcohol concentation? I think it probably means the former, particularly given that a corollary provision in subsection (g5) prescribes ignition interlock for a person whose “drivers license is revoked for a conviction of G.S. 20-138.1, and the person had an alcohol concentration of 0.15 or more.” The language in (g5) more clearly separates the requirement of a 0.15 BAC from the underlying conviction of impaired driving, indicating that the 0.15 need not have been an aggravating factor for ignition interlock to be required.
Even if this broader category of defendants is included, does G.S. 20-179.3(c1) restrict the judge to consideration only of a chemical analysis that was presented at trial or sentencing? I don’t think so. The statute says that when presented, such an analysis is conclusive and not subject to modification, but it doesn’t expressly or implicitly preclude consideration of an analysis that was not presented at trial or sentencing. Significantly, another provision of Chapter 20, § 20-17.8, requires DMV to rely on affidavits reporting chemical analysis results of 0.15 or more for purposes of requiring ignition interlock upon license restoration. Given that DMV is required to rely on affidavits regarding chemical analysis results for similar purposes that are strikingly similar to the awarding of a limited privilege, and given that the statutory scheme generally treats such analyses as reliable, it seems a reasonable conclusion that the General Assembly intended for judges to consider such results in determining whether to award a limited privilege.
But if the chemical analysis was not admitted at trial or sentencing, how is the judge apprised of that result for purposes of a limited privilege petition? A defendant convicted of impaired driving may apply for a limited privilege at or after sentencing. When a defendant applies for a privilege at sentencing, the district attorney is present and may inform the judge of the chemical analysis results. If the defendant applies for a privilege after sentencing, a hearing may not be scheduled until a reasonable time after the clerk files the application with the district attorney’s office. This notice provides the district attorney an opportunity to bring the results to the court’s attention. But what if the district attorney fails to do so? May the judge on his own initiative take judicial notice of any chemical analysis result contained in the file for the underlying case or reported to DMV and reflected in the defendant’s driving history? I think so. Given that a person’s eligibility for a limited privilege depends in part upon the level of punishment imposed for the impaired driving offense as well as the person’s license status (see GS 20-179.3(b)(1)) and that a privilege is issued “in the discretion of the court for good cause shown,” I’m inclined to conclude that the judge may examine the file in the underlying case, including any chemical analysis results contained therein, to determine whether the defendant’s alcohol concentration render him or her a “high risk driver” subject to ignition interlock and other privilege restrictions. Of course, if the results were not admitted at trial or sentencing, the judge should afford the defendant an opportunity to proffer the reasons, if any, why the results should not be relied upon.
Category: Sentencing, Uncategorized | Tags: confrontation clause, DWI, limited driving privilege, melendez-diaz
