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.
G.S. 20-16.5 provides that a person’s driver’s license is subject to revocation if the following four criteria are satisfied:
- A law enforcement officer has reasonable grounds to believe the person has committed an implied consent offense;
- The person is charged with that offense;
- The law enforcement officer and the chemical analyst comply with the provisions of G.S. 20-16.2 and G.S. 20-139.1 in requiring that the person submit to or procuring a chemical analysis; and
- The person (a) willfully refuses to submit to the chemical analysis; (b) has an alcohol concentration of 0.08 or more within a relevant time after the driving; (c) has an alcohol concentration of 0.04 or more at any relevant time after driving a commercial motor vehicle; or (d) has any alcohol concentration at any relevant time after the driving and the person is under 21.
Revocation report. When these criteria are met at the time of the person’s initial appearance on the implied consent charge, a law enforcement officer must execute a revocation report (AOC-CVR-1A) before the magistrate conducting the initial appearance.
The magistrate then determines whether there is probable cause to believe that each of the criteria is met. If she determines that there is, she must enter an order (AOC-CVR-2) revoking the person’s driver’s license. These revocations are commonly referred to as “civil license revocations” or CVRs.
An exception (because there always is one). The magistrate is not required to issue a revocation order if the person has a currently revoked driver’s license, has no limited privilege, and will not become eligible to have his license restored or to receive a limited driving privilege during the period of the civil license revocation. A magistrate who relies on this exception must document the evidence in support of that determination.
Length of revocation. A license revoked by a magistrate under G.S. 20-16.5 will remain revoked for at least 30 days and until the person pays a $100 fee to the clerk for its return.
If the person has one or more pending offenses for which his license had been or is currently revoked under G.S. 20-16.5, the revocation remains in effect until a final judgment, including all appeals, has been entered for the current offense and for all pending offenses.
License surrender. A magistrate who enters an order imposing a civil license revocation under G.S. 20-16.5 must order the person to surrender his driver’s license. If necessary, the magistrate may order a law enforcement officer to seize the license. Licenses or learner’s permits issued by NC DMV, licenses issued by a similar agency in another jurisdiction, and limited driving privileges issued by a North Carolina court all are subject to surrender.
Review of revocation order. A person may request a hearing to contest the validity of the revocation. That request must be in writing (AOC-CVR-5) and may be made at the person’s initial appearance or within 10 days of the revocation to the clerk or a magistrate designated by the clerk. The person may request that the hearing be conducted by a district court judge. If no such request is made, the hearing is before a magistrate. The person’s license remains revoked pending the hearing.The hearing must be held within three working days if it is before a magistrate and within five working days if before a district court judge.
Not every case. While the G.S. 20-16.5 revocation-criteria may be satisfied at most initial appearances for DWI and other implied consent offenses, the criteria will not be met in all cases. Sometimes the defendant’s alcohol concentration will be ascertained by a blood test rather than a breath test. Those results will not be available at the time of the initial appearance. In such circumstances, a revocation report may be filed with the clerk after the blood is analyzed and the results reported. For implied consent offenses based on an allegation of impairment by drugs or another psychoactive substances besides alcohol, the criteria under G.S. 20-16.5 will only be satisfied if the defendant willfully refuses chemical testing under the implied consent statutes. The remaining components of the fourth criteria under G.S. 20-16.5(b) are alcohol-dependent.
Limited driving privilege. A person whose license has been revoked by the magistrate under G.S. 20-16.5 may petition a district court judge in the district where the charge is pending for a limited driving privilege (AOC-CVR-9) if the following criteria are satisfied:
- At the time of the alleged offense, the person held either a valid driver’s license or a license that had been expired less than a year;
- The person does not have an unresolved pending charge involving impaired driving except the charge for which the person’s license is currently revoked under G.S. 20-16.5 or additional convictions of an offense involving impaired driving since being charged with the violation for which the license is currently revoked;
- The person’s license has been revoked for at least 10 days; and
- The person has obtained a substance abuse assessment from a mental health facility and has registered for and agreed to participate in any recommended training or treatment program.
A person whose license has been indefinitely revoked by the magistrate because of another pending implied consent offense may apply for a limited driving privilege after 30 days, but it may only be issued if necessary to overcome undue hardship. The person also must show that:
- At the time of the alleged offense, the person held either a valid driver’s license or a license that had been expired less than a year;
- At the time of the alleged offense, he or she had not within the preceding seven years been convicted of an offense involving impaired driving;
- Subsequent to the alleged offense, the person has not been convicted of, or had an unresolved charge lodged against the person for, an offense involving impaired driving; and
- The person has obtained and filed with the court a substance abuse assessment of the type required by G.S. 20-17.6 for the restoration of a driver’s license.
What I have seen as a source of constant confusion is that the defendant is arrested for DWI and taken to an instrument. Rights are read, observation period met, and then a willful refusal. Officer obtains search warrant and blood is then drawn. Then the Magistrate does not do an immediate revocation because “even though they refused the intoxilyzer, they submitted to the blood test”.
I have seen it done both ways. It seems reasonable that, if the offender’s blood is drawn, then the refusal should not be reported causing a 1-year revocation.
Thank you for this information. I do the backgrounds for Cumberland County Schools and get this all the time. We require most classified positions to be able to obtain a CDL and a CVR is not permissable. I now have a better understanding and information I can give to applicants.
FYI if getting the LDP for the indefinite suspension, the DMV will revoke it. The computer system they use reads it as a normal pre trial LDP and kicks it for having an effective date outside of the suspension end date. Intuitively that does not make sense as the suspension is indefinite and you are required to wait 30 days. Numerous phone calls and a couple weeks later you can get it sorted out but it is a pain.
Professor Markham, I do not understand when the second option for a pre-trial privilege applies. When would a magistrate indefinitely revoke a license that would allow a defendant to apply for a pre-trial privilege.