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DWI Under 21 in North Carolina

Yesterday’s post discussed the underage buying sting being conducted by the Cary police on New Year’s Eve. That post focused on the liability of the sellers of the alcohol. However, underage buyers of alcohol also face consequences.

G.S. 18B-302(b) states that

Purchase, Possession, or Consumption. - It shall be unlawful for:

(1)    A person less than 21 years old to purchase, to attempt to purchase, or to possess malt beverages or unfortified wine; or

(2)    A person less than 21 years old to purchase, to attempt to purchase, or to possess fortified wine, spirituous liquor, or mixed beverages; or

(3)    A person less than 21 years old to consume any alcoholic beverage.

G.S. 20-17.3 provides that if a person is convicted under G.S. 18B-302(b), the DMV shall revoke the person’s driver’s license “if the violation occurred while the person was purchasing or attempting to purchase an alcoholic beverage.” The statute goes on to state that “[i]f the person's license is currently suspended or revoked, then the revocation under this section shall begin at the termination of that revocation.” The statute provides that “[a] person whose license is revoked under this section for a violation of G.S. 18B-302(a1) or G.S. 18B-302(c) shall be eligible for a limited driving privilege under G.S. 20-179.3.” However, the violation of G.S. 18B-302(b) is not included in those eligible for a limited driving privilege.

In addition, if a person under the age of 21 drinks any alcohol at all and then drives, he violates G.S. 20-138.3(a), which states

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.

An underage person convicted of driving after drinking is guilty of a Class 2 misdemeanor. A guilty verdict in a Class 2 misdemeanor generally results in less severe jail time and fines than a guilty verdict in a DWI.  However, both driving after drinking and DWI convictions result in a one-year license revocation.

If an underage person is convicted of driving after drinking and his license is revoked solely for this violation, G.S. 20-138.3(d) provides that he can apply for a limited driving privilege under the provisions of G.S. 20-179.3, so long as he is at least 18 years old and has not previously been convicted of a driving after drinking offense. G.S. 20-179.3(a) allows a person with a revoked driver’s license to apply for a limited driving privilege

to drive for essential purposes related to any of the following:

(1)    His employment.

(2)    The maintenance of his household.

(3)    His education.

(4)    His court-ordered treatment or assessment.

(5)    Community service ordered as a condition of the person's probation.

(6)    Emergency medical care.

However, if an underage person is convicted of driving while impaired under G.S. 20-138, his license is suspended pursuant to G.S. 20-13.2(b). G.S. 20-179.3(e) permits a judge to grant a limited driving privilege when “a person to drive if his license is revoked solely under G.S. 20-17(a)(2) or as a result of a conviction in another jurisdiction substantially similar to impaired driving under G.S. 20-138.1.” However, “if the person's license is revoked under any other statute, the limited driving privilege is invalid.” Because the underage person convicted of DWI has his license revoked under G.S. 20-13.2, G.S. 20-179.3 does not provide for the granting of limited driving privileges.

G.S. 20-138.3(d) permits the granting of limited driving privileges for a person whose license is revoked solely because of driving after drinking while under 21 and states that “G.S. 20-179.3, rather than this subsection, governs the issuance of a limited driving privilege to a person who is convicted of violating subsection (a) of this section and of driving while impaired as a result of the same transaction.” There is no other statutory provision providing for such privileges, and therefore, a person convicted of DWI when under the age of 21 is not eligible for limited driving privileges.

Like DWI, the driving after drinking offense is subject to the implied consent provisions of G.S. 20-16.2. So if a person is arrested for driving after drinking and refuses to submit to a breath test, he faces an automatic suspension of his license for a period of one year.

However, a person under the age of 21 faces additional consequences for refusing to submit to a breath test. Subsection (b1) of G.S. 20-138.3 states that if the underage person refuses to submit to a breath test, “[the odor of an alcoholic beverage on the breath of the driver” is sufficient “evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver's body in violation of this section.”

In addition, G.S. 20-13.2(c) states that “[i]f 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.” G.S. 20-16.2 provides for a one year revocation for willful refusal to submit to a chemical analysis, but it also provides for the granting of limited driving privileges after 6 months, under subsection (e1). However, G.S. 20-16.2(e1) states that “A limited driving privilege issued under this section authorizes a person to drive if the person's license is revoked solely under this section or solely under this section and G.S. 20-17(2). If the person's license is revoked for any other reason, the limited driving privilege is invalid.” Because no other statute provides for the granting of limited driving privileges when a person’s license is revoked under G.S. 20-13.2(c), a person under the age of 21 who refuses to submit to a breath test is not eligible for such privileges.

The driving after drinking offense for a person under 21 is a separate offense from DWI and is not a lesser included. It is possible to be found guilty of both, if the underage person was not only driving after drinking but driving while impaired. However, the driving after drinking statute states that “if a person is convicted under this section and of an offense involving impaired driving arising out of the same transaction, the aggregate punishment imposed by the court may not exceed the maximum applicable to the offense involving impaired driving, and any minimum punishment applicable shall be imposed.”

If you have been arrested for impaired driving or driving after drinking while under 21, visit www.rflaw.net for legal help.

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