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How is DWI law in North Carolina Different for People Under the Age of 21?

How is DWI Law in North Carolina Different for People Under the Age of 21?

How is DWI law different for people under the age of 21?  In short, it’s not.  One common misconception about DWI law is that a person who is under the age of 21 can be found guilty of DWI if they have had anything to drink at all.   Under the impaired driving statute, everyone, regardless of age, is held to the same standard.  Under G.S. 20-138.1, to be found guilty of DWI, a person must be driving a vehicle on a highway, street or public vehicular area in North Carolina:

(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.

Let’s say there are two brothers, John, who is 19, and John’s older brother James, who is 23.  One night John and James get together to watch a basketball game and drink a couple of beers.  After the game, John gets into his car and drives to his home and James gets into his car and drives to his home.  In an especially unlucky turn of events, each of the brothers is pulled over on his way home and arrested for DWI.  When he submits to a Breathalyzer, each of the brothers blows a 0.04.  Neither 19-year-old John nor 23-year-old James is guilty of DWI.

In the above example, however, 19-year-old John may be charged with the lesser crime of driving by a person under the age of 21 years old after consuming drugs or alcohol.  North Carolina has a zero tolerance policy for people under 21 drinking and driving.  Under G.S. 20-138.3,

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.

This means that our 19-year-old John may not drive after having had any alcohol at all to drink.  Because John’s Breathalyzer result was at least 0.01, John can be found guilty under the driving after drinking law. If John had refused to submit to a Breathalyzer, the law provides that John can be convicted of driving after drinking by only having the smell of alcohol on his breath.  This is a very different standard than the DWI law, which requires proof of impairment.  The mere smell of alcohol on his breath would not be sufficient proof for John to be convicted under the DWI law, even if John refused to submit to a Breathalyzer.  Under the DWI law, if John refused to submit to a Breathalyzer, his impairment would have to be proven through other evidence, such as a blood test for which a warrant is typically required.  In contrast, 23-year-old James is not subject to the driving after drinking law, and the only law he can be convicted under is the DWI law.  Because his Breathalyzer test resulted in a reading below the legal limit, James would be inconvenienced only by the hassle of an unexpected encounter with the police, while John has a potential trial to look forward to.

In either John’s case or James’ case, however, the refusal to submit to a Breathalyzer would result in an automatic one-year suspension of his driver’s license.   This automatic suspension is a result of the doctrine of implied consent.  When the North Carolina DMV issued John and James their driver’s licenses, the brothers gave their implied consent to submit to tests by blood or breath to determine blood alcohol content in the event of a lawful arrest for DWI or driving after drinking.  If either brother refused to submit to such a test after a lawful arrest, the DMV will automatically revoke his driver’s license for one year.

Driving by a person under the age of 21 years old after consuming drugs or alcohol is a Class 2 Misdemeanor and carries a less severe punishment than a DWI conviction.  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.  Driving after drinking is not a lesser included offense of DWI.  It is possible to be found guilty of both driving after drinking and DWI.  In the case where John is found guilty of both offenses, his punishment for the driving after drinking cannot be added to his punishment for the DWI to exceed the maximum punishment for DWI.

If John is found guilty of driving after drinking, he may still be eligible for a limited driving privilege since he was at least 18 at the time of the offense and as long as he has not previously been convicted of driving after drinking.  However, if John had refused to submit to a Breathalyzer, he would not be eligible for a limited driving privilege for a period of six months.  In either case, once John is granted his limited driving privilege, he can drive to school and work, but he won’t be able to drive to meet his brother James out to watch any basketball games.  James will have to pick John up for a while.

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