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Commercial DWI in North Carolina

In North Carolina, impaired driving in a commercial vehicle is governed by a separate statute from impaired driving in a non-commercial vehicle.  While a blood alcohol content (BAC) of 0.08 will violate the driving while impaired statute for non-commercial vehicles, a commercial vehicle driver with a BAC of 0.04 will violate G.S. 20-138.2(a).  That section provides that:

(a)    Offense. - A person commits the offense of impaired driving in a commercial motor vehicle if he drives a commercial motor vehicle upon any highway, any street, or any public vehicular area within the State:

(1)    While under the influence of an impairing substance; or

(2)    After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.04 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or

(3)    With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

The punishment for G.S. 20-138.2 is governed by the same statute section that contains the punishment for non-commercial DWI - G.S. 20-179.  G.S. 20-138.2(e) goes on to state that “This offense is not a lesser included offense of impaired driving under G.S. 20-138.1, and if a person is convicted under this section and of an offense involving impaired driving under G.S. 20-138.1 arising out of the same transaction, the aggregate punishment imposed by the Court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S. 20-138.1.”

Furthermore, a commercial driver is in violation of G.S. 20-138.2A(a) by driving his commercial vehicle while consuming alcohol or while alcohol remains in the driver’s body.  That section provides that

(a)    Offense. - A person commits the offense of operating a commercial motor vehicle after consuming alcohol if the person drives a commercial motor vehicle, as defined in G.S. 20-4.01(3d)a. and b., upon any highway, any street, or any public vehicular area within the State while consuming alcohol or while alcohol remains in the person's body.

The punishment for a driver’s first violation of G.S. 20-138.2A “is a Class 3 misdemeanor and, notwithstanding G.S. 15A-1340.23, is punishable by a penalty of one hundred dollars ($100.00).”  A subsequent violation of G.S. 20-138.2A (within a seven year period) “is a misdemeanor punishable under G.S. 20-179” and “ is a lesser included offense of impaired driving of a commercial vehicle under G.S. 20-138.2.”

So what is a “commercial vehicle”?  G.S. 20-4.01(3d) defines a “commercial motor vehicle” as

Any of the following motor vehicles that are designed or used to transport passengers or property:

a.     A Class A motor vehicle that has a combined GVWR of at least 26,001 pounds and includes as part of the combination a towed unit that has a GVWR of at least 10,001 pounds.

b.     A Class B motor vehicle.

c.     A Class C motor vehicle that meets either of the following descriptions:

1.     Is designed to transport 16 or more passengers, including the driver.

2.     Is transporting hazardous materials and is required to be placarded in accordance with 49 C.F.R. Part 172, Subpart F.

d.     Repealed by Session Laws 1999, c. 330, s. 9, effective December 1, 1999.

This leads us to look up the definitions of Class A, Class B and Class C motor vehicles.  Those are:

(2a)  Class A Motor Vehicle. - A combination of motor vehicles that meets either of the following descriptions:

a.     Has a combined GVWR of at least 26,001 pounds and includes as part of the combination a towed unit that has a GVWR of at least 10,001 pounds.

b.     Has a combined GVWR of less than 26,001 pounds and includes as part of the combination a towed unit that has a GVWR of at least 10,001 pounds.

(2b)  Class B Motor Vehicle. - Any of the following:

a.     A single motor vehicle that has a GVWR of at least 26,001 pounds.

b.     A combination of motor vehicles that includes as part of the combination a towing unit that has a GVWR of at least 26,001 pounds and a towed unit that has a GVWR of less than 10,001 pounds.

(2c)  Class C Motor Vehicle. - Any of the following:

a.     A single motor vehicle not included in Class B.

b.   A combination of motor vehicles not included in Class A or Class B.

In a 2000 Court of Appeals case, State v. Jones, the defendant argued that he was not driving a “commercial vehicle” when he had unhooked the tractor from the trailer and was driving the tractor alone.  The court concluded that the tractor alone still met the definition of a commercial vehicle because

By simply detaching the trailer portion of a tractor-trailer, defendant did not change the nature of the vehicle or what it was designed or used to transport. Nor, did detaching the trailer change the vehicle's GVWR, the maximum loaded weight of the vehicle, which defendant's own testimony established was between 78,000 and 79,000 pounds.

A driver who has violated G.S. 20-138.2 or G.S. 20-138.2A is also subject to additional penalties.  G.S. 20-17.4(a) provides in part that

Any of the following disqualifies a person from driving a commercial motor vehicle for one year if committed by a person holding a commercial drivers license, or, when applicable, committed while operating a commercial motor vehicle by a person who does not hold a commercial drivers license:

(1) A first conviction of G.S. 20-138.1, driving while impaired, for a holder of a commercial drivers license that occurred while the person was driving a motor vehicle that is not a commercial motor vehicle.

(2) A first conviction of G.S. 20-138.2, driving a commercial motor vehicle while impaired.

(5) Refusal to submit to a chemical test when charged with an implied-consent offense, as defined in G.S. 20-16.2.

(6) A second or subsequent conviction, as defined in G.S. 20-138.2A(d), of driving a commercial motor vehicle after consuming alcohol under G.S. 20-138.2A.

A commercial vehicle defendant who was charged with non-commercial DWI in the 2013 case State v. McKenzie argued that the commercial drivers license (CDL) revocation constituted a criminal punishment and therefore barred a DWI prosecution from the same incident as a violation of double jeopardy.  The Court of Appeals agreed.  However, the North Carolina Supreme Court later reversed the Court of Appeals decision, agreeing with the Court of Appeals dissent opinion which concluded that the CDL license revocation was a civil punishment.  Therefore, a commercial driver can be punished with both a CDL license revocation and a DWI prosecution.

If you have been charged with commercial DWI, contact a lawyer at Rosensteel Fleishman, PLLC (704) 714-1450.

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