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DWI and Learner’s Permits in North Carolina

Getting your learner’s permit is an exciting rite of passage on your way to adulthood. In North Carolina, anyone under the age of 18 drives with a provisional license subject to the terms of G.S. 20-11. These provisional licenses are divided into three categories: Levels 1, 2 and 3. Level 1 is referred to as a limited learner’s permit; Level 2 is referred to as a limited provisional license; and Level 3 is referred to as a full provisional license. A person who is at least 15 years old but less than 18 years old can obtain a limited learner’s permit. A person who is at least 16 years old but less than 18 years old can obtain a limited provisional license and then, after meeting certain requirements, a full provisional license.

Because provisional licensees are under the age of 21, there are two separate statutes that a provisional licensee could violate by drinking and driving. The first is the general DWI statute in G.S. 20-138.1, which prohibits driving

any vehicle upon any highway, any street, or any public vehicular area within this 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 0.08 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 second is the driving after drinking for those under 21 statute in G.S. 20-138.3, which states that

It is unlawful for a person less than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has remaining in his body any alcohol or controlled substance previously consumed, but a person less than 21 years old does not violate this section if he drives with a controlled substance in his body which was lawfully obtained and taken in therapeutically appropriate amounts.

If a provisional licensee is convicted under either the DWI statute or the driving after drinking statute, his provisional license is revoked under G.S. 20-13.2. That section states, in part, that

(a)    The Division must revoke the license of a person convicted of violating the provisions of G.S. 20-138.3 upon receipt of a record of the licensee's conviction.

(b)    If a person is convicted of an offense involving impaired driving and the offense occurs while he is less than 21 years old, his license must be revoked under this section in addition to any other revocation required or authorized by law.

(c)    If a person willfully refuses to submit to a chemical analysis pursuant to G.S. 20-16.2 while he is less than 21 years old, his license must be revoked under this section, in addition to any other revocation required or authorized by law. A revocation order entered under authority of this subsection becomes effective at the same time as a revocation order issued under G.S. 20-16.2 for the same willful refusal.

(d)    The length of revocation under this section shall be one year. Revocations under this section run concurrently with any other revocations.

Although limited driving privileges are available for fully licensed drivers under G.S. 20-179.3, there is no such provision in the revocation of the provisional license section, and G.S. 20-138.3(d) specifically states that a person convicted of violating the driving after drinking statute can only apply for limited driving privileges if they are over the age of 18.

One additional special requirement for those with a Level 1 limited learner’s permit (which is anyone under the age of 16) is that “[a] supervising driver must be seated beside the permit holder in the front seat of the vehicle when it is in motion.” G.S. 20-11(k) defines a “supervising driver” as

a parent, grandparent, or guardian of the permit holder or license holder or a responsible person approved by the parent or guardian or the Division. A supervising driver shall be a licensed driver who has been licensed for at least five years.

A person cannot serve as a supervising driver if that person would be in violation of the DWI statute were they themselves driving. G.S. 20-12.1 states that

(a)    It is unlawful for a person to serve as a supervising driver under G.S. 20-7(l) or G.S. 20-11 or as an approved instructor under G.S. 20-7(m) in any of the following circumstances:

(1)    While under the influence of an impairing substance.

(2)    After having consumed sufficient alcohol to have, at any relevant time after the driving, an alcohol concentration of 0.08 or more.

(b)    An offense under this section is an implied-consent offense under G.S. 20-16.2.

Therefore, the provisional licensee cannot serve as the designated driver for the supervising driver. This statute makes sense considering that the North Carolina courts have presumed the that the supervising driver has a “duty to control” the vehicle in which they are riding as the supervising driver. If the supervising driver would not be able to drive the vehicle without violating the DWI statute, then he would not be able to exercise his duty to control the vehicle.

Of course, any traffic stop of a vehicle driving by a provisional licensee would have to be made subject to reasonable suspicion. Similar to the DWI statute, the impaired supervision offense is an implied-consent offense, which means that the supervising driver can refuse to submit to a breath or blood test. However, if he does refuse, his driver’s license will be revoked for one year. And if his driver’s license is revoked, he can no longer serve as a supervising driver.

If you have been charged with DWI or impaired supervision, visit www.rflaw.net for legal help.

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