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Ignition Interlock Device in North Carolina

In North Carolina, a DWI conviction will result in a revocation of your driver’s license. G.S. 20-17(a)(2) provides that the DMV must revoke a driver’s license for

Either of the following impaired driving offenses:

a.     Impaired driving under G.S. 20-138.1.

b.     Impaired driving under G.S. 20-138.2, if the driver's alcohol concentration level was .06 or higher. For the purposes of this sub-subdivision, the driver's alcohol concentration level result, obtained by chemical analysis, shall be conclusive and is not subject to modification by any party, with or without approval by the court.

G.S. 20-19(c1) sets forth the period of revocation, which if the DWI conviction is a first, is a period of one year. During the period of revocation, you might receive a limited driving privilege under G.S. 20-179.3, and after the period of revocation, your driver’s license is restored pursuant to G.S. 20-17.6 and 20-17.8. In certain instances, a limited driving privilege or license restoration is subject to your agreement to use an ignition interlock device.

An ignition interlock device

requires a driver to pass an alcohol test by blowing into the device. The results are then recorded as logged events. If the device recognizes alcohol through the breath test, the vehicle is programmed not to start. Occasionally, an alcohol test will also be required while the vehicle is running. (Cole v. Faulkner, N.C. App. 2002)

G.S. 20-179.3(g3)(3) allows a judge to include in any limited driving privilege order the condition that a driver use an interlock device. If a driver’s blood alcohol concentration is 0.15 or more, a judge is required to include the interlock device as a condition to granting limited driving privileges. G.S. 20-179.3(g5) states that

If a person's drivers license is revoked for a conviction of G.S. 20-138.1, and the person had an alcohol concentration of 0.15 or more, a judge shall include all of the following in a limited driving privilege order:

(1)    A restriction that the applicant may operate only a designated motor vehicle.

(2)    A requirement that the designated motor vehicle be equipped with a functioning ignition interlock system of a type approved by the Commissioner, which is set to prohibit driving with an alcohol concentration of greater than 0.00. The Commissioner shall not unreasonably withhold approval of an ignition interlock system and shall consult with the Division of Purchase and Contract in the Department of Administration to ensure that potential vendors are not discriminated against.

(3)    A requirement that the applicant personally activate the ignition interlock system before driving the motor vehicle.

For purposes of this subsection, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove a person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

In addition, a driver whose blood alcohol concentration was 0.15 or more is required to have the interlock device as a condition to the restoration of his driver’s license at the end of the revocation period. G.S. 20-17.8(a) subjects drivers convicted of DWI to an interlock device following restoration of their license when

(1)    The person had an alcohol concentration of 0.15 or more;

(2)    The person has been convicted of another offense involving impaired driving, which offense occurred within seven years immediately preceding the date of the offense for which the person's license has been revoked; or

(3)    The person was sentenced pursuant to G.S. 20-179(f3).

G.S. 20-17.8(a1) is effective until December 31, 2014 and requires drivers convicted of habitual DWI to use the interlock device upon the restoration of their drivers license. If the original license revocation period was one year, then the period of time during which the driver must use the interlock device is also one year. If the original revocation period was four years, then the interlock device must be used for three years, and if the original revocation period was permanent, then the interlock device must be used for seven years. If a person violates the requirements in G.S. 20-17.8, they will be charged with driving with a revoked license pursuant to subsection (f).

In 2009, the North Carolina Court of Appeals reviewed the case Brunson v. Tatum, in which petitioner’s driving privileges were permanently revoked following his third DWI conviction. After seven years, the DMV conditionally restored privileges subject to a restoration agreement and an interlock device. The agreement stated that the “[l]icensee promises and agrees that he will under no circumstances drive or operate or attempt to drive or operate any motor vehicle upon the public streets, highways or public vehicular areas after having consumed any type of alcoholic beverages, drugs or other impairing substances.”

The interlock device detected alcohol and locked the ignition. The petitioner argued that he did not violate the terms of his agreement because he did not turn on ignition, and therefore, he did not attempt to operate the vehicle. The court held that

an act short of turning on the ignition is sufficient to constitute an "attempt" within the meaning of term three of the conditional restoration agreement. Since a person with an ignition interlock device cannot start his car — and thus operate it — without successfully blowing into the ignition interlock device, such an act goes beyond mere preparation and constitutes the necessary overt act. Accordingly, we hold that if petitioner, with the intent to drive his truck, blew into the ignition interlock device, he attempted to operate his vehicle as set out in term three of the conditional restoration agreement.

A trial court is granted the discretion to modify a driver’s limited driving privileges under G.S. 20-179.3(i). In the 2005 case, State v. Benbow, the defendant was convicted of DWI. The defendant was granted a limited driving privilege subject to the use of an interlock device because her BAC was 0.16. The defendant’s doctor wrote a note to the court stating that the defendant was unable to operate the interlock device because she had a cleft palate and asthma. The trial court modified the limited driving privilege to remove the requirement that the defendant use the interlock device.

The DMV did not challenge the modification of the limited driving privilege because G.S. 20-179.3(i) states that

A judge who issues a limited driving privilege is authorized to modify or revoke the limited driving privilege upon a showing that the circumstances have changed sufficiently to justify modification or revocation. If the judge who issued the privilege is not presiding in the court in which the privilege was issued, a presiding judge in that court may modify or revoke a privilege in accordance with this subsection. The judge must indicate in the order of modification or revocation the reasons for the order, or he must make specific findings indicating the reason for the order and those findings must be entered in the record of the case.

However, upon reinstating the defendant’s driver’s license, the trial court did not require the defendant to use an interlock device. The Court of Appeals held that the statute required the defendant’s reinstated driver’s license to be conditioned on the use of an interlock device, and the judge was not allowed to reinstate the defendant’s driver’s license without the condition of an interlock device.

Since that case, the statute has been modified to include a medical exception to the requirement in subsection (l), which states

A person subject to this section solely for the reason set forth in subdivision (a)(1) of this section and who has a medically diagnosed physical condition that makes the person incapable of personally activating an ignition interlock system may request an exception to the requirements of this section from the Division. The Division shall not issue an exception to this section unless the person has submitted to a physical examination by two or more physicians or surgeons duly licensed to practice medicine in this State or in any other state of the United States and unless such examining physicians or surgeons have completed and signed a certificate in the form prescribed by the Division. Such certificate shall be devised by the Commissioner with the advice of those qualified experts in the field of diagnosing and treating physical disorders that the Commissioner may select and shall be designed to elicit the maximum medical information necessary to aid in determining whether or not the person is capable of personally activating an ignition interlock system. The certificate shall contain a waiver of privilege and the recommendation of the examining physician to the Commissioner as to whether the person is capable of personally activating an ignition interlock system.

If you have been arrested for DWI, visit www.rflaw.net to get legal help.

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