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North Carolina DUI

UPDATED: May 21, 2020

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What you need to know...

  • In North Carolina, it is illegal to drive a vehicle with a BAC of 0.08 or higher
  • DUI checkpoints are legal in North Carolina
  • North Carolina has one of the highest DUI death rates in the Southern U.S.
  • A DUI conviction in North Carolina stays on your criminal record forever

When faced with a North Carolina DUI conviction, there are several issues to consider. Understanding the laws and penalties associated with drunk driving can help you to avoid a violation or to proceed accordingly if a violation has already been issued. An experienced DUI lawyer knows the relevant legal rules and standards and will be able to explain your options relative to your DUI case in detail.

For a free case evaluation by an experienced DUI attorney, click here.

In this article, we'll cover everything you need to know about a North Carolina DUI.

North Carolina DUI Laws

In North Carolina, it is illegal to drive a vehicle while noticeably impaired or with an alcohol concentration of 0.08 or higher. When driving a commercial motor vehicle, the limit is 0.04. Courts are required to order the installation and monitoring of an ignition interlock device for any driver whose breath alcohol concentration (BAC) levels are 0.15 or higher, even for a first offense.

DWI stands for Driving While Impaired, and DUI means Driving Under the Influence. Although you might have heard both terms used, the state of North Carolina does not make a distinction between them. There are several common terms associated with a DUI. It can be beneficial to familiarize yourself with these terms and definitions in case you find yourself facing a DUI in North Carolina.

North Carolina DUI Offenses

North Carolina requires anyone convicted of a DUI to attend alcohol safety school or substance abuse treatment.

First North Carolina DUI Offense

While a first DUI offense is a misdemeanor in North Carolina, the consequences are severe. If there have been no prior DUI convictions within the last three years, the driver will lose their license for one year. Three years is counted from one DUI arrest date to the next, not by conviction dates. The actual date your case was tried in court is irrelevant.

Second North Carolina DUI Offense

Receiving two DUI charges within three years will result in a second offense DUI charge if the first DUI resulted in a conviction. The loss of your driver's license will be for four years. There is a possibility of having a hearing by the North Carolina Division of Motor Vehicles to restore your license after two years if you've completed a DUI substance abuse program and have made significant changes in your lifestyle. These changes will have to be verified by witnesses at a DUI hearing.

Third North Carolina DUI Offense

Three DUI offenses within ten years, the last two occurring within five years, will result in the permanent loss of your driver's license. However, after five years, you can request a hearing by the North Carolina Division of Motor Vehicles to reinstate your driver's license.

Habitual Impaired Driving

Receiving three or more DUI convictions within ten years will result in a conviction of habitual impaired driving. This DUI is considered a felony, and there is a minimum prison sentence of one year. The prison sentence cannot be suspended or shortened for any reason, and it will run consecutively with and commence at the expirationof any sentence being served. A person convicted of habitual impaired driving will have their license permanently revoked. No appeals are allowed by the North Carolina DMV for a conviction of habitual impaired driving.

Levels of Punishment

North Carolina is known as one of the strictest states on DUI offenders. North Carolina DUI offenders are sentenced based on a sliding scale. The scale includes five levels of misdemeanor DUI, with Level I being the most serious and Level V the least serious.

Level V

A Level V offense is punishable by a fine of up to $200 and a jail sentence of 24 hours minimum and 60 days maximum. A judge can suspend the sentence, on the condition that the driver spends 24 hours in jail, performs 24 hours of community service, or does not operate a vehicle for 30 days.

Level IV

A Level IV offense is punishable by a fine of up to $500 and a minimum jail sentence of 48 hours and a maximum of 120 days. A judge can suspend the sentence if the driver spends 48 hours in jail, performs 48 hours of community service, or does not operate a vehicle for 60 days.

Level III

A Level III offense is punishable by a fine of up to $1,000 and a minimum jail sentence of 72 hours and a maximum of six months. A judge can suspend the sentence if the driver spends at least 72 hours in jail, performs 72 hours of community service, or does not operate a vehicle for 90 days.

Level II

A Level II offense is punishable by a fine of up to $2,000 and a jail sentence of seven days minimum and one year maximum. A judge CANNOT suspend the minimum sentence.

Level I

A Level I offense is punishable by a fine of up to $4,000, along with a minimum jail sentence of 30 days and a maximum of two years. A judge CANNOT suspend the minimum sentence.

Level I and II drivers are repeat offenders, people whose licenses have been revoked, impaired drivers, impaired drivers who are transporting young children, and impaired drivers who hurt someone in a crash. Impaired drivers must complete a substance abuse assessment and comply with any recommended treatment as a condition of having their driver's license restored at the end of the revocation period.

Factors That Determine the Level of Punishment

The level of punishment given to a DUI offender is determined by weighing aggravating factors (e.g., BAC > 0.15, reckless/dangerous driving, negligent driving resulting in an accident or driving with a revoked license) and mitigating factors.

Grossly Aggravating Factors

Grossly aggravating factors are the most severe circumstances under which a DUI arrest might occur. The factors that are considered grossly aggravating are:

  • A prior conviction for an offense involving DUI if:
    • The DUI conviction occurred within seven years before the date of the offense for which the defendant is being sentenced, or;
    • The DUI conviction occurs after the date of the offense for which the defendant is presently being sentenced, prior to or simultaneously with the present sentencing. Each prior conviction is considered a separate grossly aggravating factor by the state of North Carolina.
    • Driving by the defendant at the time of the DUI offense while his driver's license was revoked, and the revocation was a DUI revocation.
    • Serious injury to another person caused by the defendant's impaired driving at the time of the DUI offense.
    • Driving by the defendant while a child under the age of 16 years old was in the vehicle at the time of the DUI offense.

Aggravating Factors

Aggravating factors aggravate or increase the seriousness of the offense but are not considered quite as severe as the above factors. Factors that aggravate the seriousness of a DUI offense include:

  • Gross impairment of the defendant's faculties while driving, or an alcohol concentration of 0.16 or more within a relevant time after driving.
  • Extraordinarily reckless or dangerous driving during the DUI offense.
  • Negligent driving that led to a reportable accident during the DUI offense.
  • Driving while license is revoked.
  • Two or more prior convictions of a motor vehicle offense not involving a DUI for which
    • at least three points are assigned;
    • or for which the convicted person's license is subject to revocation if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced;
    • or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
  • A conviction of speeding by the defendant while fleeing or attempting to evade apprehension during the DUI arrest.
  • A conviction of speeding by the defendant by at least 30 miles per hour over the legal limit during the DUI offense.
  • Passing a stopped North Carolina school bus.
  • Any other factor that aggravates the seriousness of the DUI offense.

Mitigating Factors

Mitigating factors are factors that are in your favor and mitigate the seriousness of the DUI offense. The mitigating factors are always considered in your favor and can lessen the level of punishment you receive from the judge. Mitigating factors include:

  • Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after driving.
  • Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant at the time of the DUI charge.
  • Driving at the time of the DUI offense that was safe and lawful except for the impairment of the defendant's faculties.
  • A safe driving record, with the defendant having no conviction for any motor vehicle offense for which at least four points are assigned or for which the person's license is subject to revocation within five years of the date of the DUI offense for which the defendant is being sentenced.
  • Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, IF the amount of the drug taken was within the prescribed dosage. (Often people do not know that they may be charged and convicted of DUI resulting from taking prescribed medication, taken as prescribed. However, this type of DUI charge is just as serious in some ways as a DUI charge resulting from alcohol or street drugs.)
  • The defendant's voluntary submission to a mental health facility for DUI alcohol and drug abuse assessment after being charged with the impaired driving offense for which they're being sentenced, and, if recommended by the facility, voluntary participation in the recommended DUI substance abuse treatment.

Ignition Interlock Devices

Connected to a vehicle's ignition system, an ignition interlock device requires an individual to breathe into the equipment, which prevents the vehicle from starting if the individual's BAC is outside the acceptable range. Ignition interlock devices are installed at the expense of the driver.

Limited Driving Privilege

A limited driving privilege is a judgment issued at the discretion of a court for good cause authorizing a person with a revoked driver's license to drive for essential purposes related to any of the following:

  • The person's employment.
  • The maintenance of the person's household.
  • The person's education.
  • The person's court-ordered treatment or assessment.
  • Community service ordered as a condition of the person's probation.
  • Emergency medical care.
  • Religious worship.

Eligibility for a North Carolina limited driving privilege is as follows:

  • A person convicted of a DUI is eligible for a limited driving privilege if:
    • At the time of the offense the person held either a valid driver's license or a license that had been expired for less than one year;
    • At the time of the offense the person had not within the preceding seven years been convicted of an offense involving impaired driving;
    • Punishment Level Three, Four, or Five was imposed for the offense of impaired driving;
    • Subsequent to the offense the person has not been convicted of, or had an unresolved charge lodged against them for, an offense involving impaired driving; and
    • The person has obtained and filed with the court a substance abuse assessment for the restoration of a driver's license.

A person whose North Carolina driver's license is revoked because of a conviction in another jurisdiction substantially similar to impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege if the person would be eligible for it had the conviction occurred in North Carolina.

  • Any person whose licensing privileges are forfeited is eligible for a limited driving privilege if the court finds that at the time of the forfeiture, the person held either a valid drivers license or a driver's license that had been expired for less than one year AND
  • The person is supporting existing dependents or must have a driver's license to be gainfully employed; or
  • The person has an existing dependent who requires serious medical treatment, and the defendant is the only person able to provide transportation to the dependent to the health care facility where the dependent can receive the needed medical treatment.

The limited driving privilege granted under this subdivision must restrict the person to essential driving related to the purposes listed above, and any driving that is not related to those purposes is unlawful, even if done at times and upon routes that may be authorized by the privilege.

North Carolina's Implied Consent Laws: Refusing a DUI Blood or Breath Test

You can legally refuse a breathalyzer test in North Carolina. However, North Carolina has what is called an implied consent law. Implied consent means that when you apply for a North Carolina driver's license, you implicitly agree to drug and alcohol testing should a police officer suspect you of driving while intoxicated.

Under the implied consent law, you can refuse any test, but your driver's license will be revoked for one year if you do so. It could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

DUI Checkpoint Laws in North Carolina

Under North Carolina law, DUI checkpoints are legal. Law enforcement agencies in North Carolina widely employ motor vehicle checkpoints. To legally conduct these DUI checkpoints, law enforcement agencies and police officers must follow specific DUI checkpoint laws in accordance with the provisions of the United States Constitution and the Constitution of North Carolina, as follows:

  • Designate in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to produce their driver's license, registration, or insurance information.
    • Operate under a written policy that provides guidelines for the pattern, which need not be in writing. The policy may be either the agency's own policy, or if the agency does not have a written policy, it may be the policy of another law enforcement agency, and may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to produce their driver's license, registration, or insurance information. If officers of a law enforcement agency are operating under another agency's policy, it must be stated in writing.
    • Advise the public that an authorized checking station is being operated by having, at a minimum, one law enforcement vehicle with its blue light in operation during the conducting of the checking station.
      • An officer who determines there is a reasonable suspicion of a violation may detain the driver to further investigate in accordance with the law. The operator of any vehicle stopped at a checking station may be requested to submit to an alcohol screening test if, during the stop, the officer determines the driver had previously consumed alcohol or has an open container of alcoholic beverage in the vehicle. The officer so requesting shall consider the results of any alcohol screening test or the driver's refusal in determining if there is reasonable suspicion to investigate further.
      • The placement of checkpoints should be random or statistically indicated, and agencies shall avoid placing checkpoints repeatedly in the same location or proximity.

Recent DUI Checkpoints in North Carolina

North Carolina DUI Statistics

North Carolina is one of seven states in the southern region of the U.S. with the highest DUI death rates. What's more, North Carolina was ranked seventh on the top 10 list of worst states for drunk driving in 2018, according to a recent report from BackgroundChecks.org.

North Carolina DUI License Reinstatement

The North Carolina Division of Motor Vehicles must receive a certificate of completion for a DUI substance use assessment that has been approved by the North Carolina Department of Health and Human Services before a driver's license can be reinstated.

The North Carolina Division of Motor Vehicles will notify a driver by mail of their eligibility for an administrative hearing and provide information about associated fees and the deadline for submitting requests.

A driver or vehicle owner requesting an administrative hearing must mail a completed Driver License Hearing Request form, along with the applicable fee, to the address on the form. (Requests without the paid fee will not be processed). The North Carolina Division of Motor Vehicles will notify an applicant of their hearing date within 30 business days.

A driver who has satisfied the requirements of a suspension or revocation must reapply for their license and pay the associated fees, required by law, outlined in the chart below:

  • Restoration fee: $65
    • Required to restore driving privileges when the suspension term is complete; this fee is not required if the license was taken for medical or health reasons following a medical evaluation
  • Service fee: $50
    • Required unless the license was surrendered to the court or mailed to the NC Division of Motor Vehicles before the effective date of the suspension or revocation
  • DUI reinstatement fee: $130
    • Required when a DUI suspension term is complete

In North Carolina, after an offender's license has been reinstated or restored, a restriction is placed on the license prohibiting driving with a BAC level at or above 0.04 for a first restoration. For a second or subsequent restoration, the offender is prohibited from driving with any alcohol in their system.

These restrictions are in effect for three years unless the offender's license was permanently revoked, but could be restored. The restriction appears on the back of the driver's license and is in the driver's license record. A violation of the restriction is an implied consent offense. A violation of the restriction will result in at least a one-year revocation.

How long does a DUI stay on my record in North Carolina?

A DUI conviction in North Carolina stays on your criminal record forever. For sentencing purposes, however, there is what is called a "look-back period." The look-back period in North Carolina for misdemeanor DUI is seven years, and for felony habitual DUI it's 10 years.

This look-back period means that if you are arrested and charged with a DUI in North Carolina within seven years of your first conviction, you'll be charged as a second offender. If a second DUI arrest is made more than seven years after the first, it will be sentenced as a first DUI. The prior qualifying convictions could have taken place in any state.

Can you get a DUI expunged in North Carolina?

In some cases, you can get a DUI expunged in North Carolina; however, expungement is available only if your case was dismissed or you were found not guilty. DUI expungement is not available to people who have a conviction.

To expunge a DUI charge that did not result in a conviction, you must file a petition in the county where the charge originated. There is no fee to expunge DUI dismissals or not-guilty verdicts.

The Advantages of Hiring a North Carolina DUI Lawyer

A DUI charge is a serious matter. Self-representation in any criminal matter can be a difficult task. DUI cases get dismissed because of the law, legal arguments, and helpful fact patterns. You may not consider or be aware of legal defenses that exist that could help your DUI case. Understanding North Carolina's DUI penalties, and which North Carolina DUI levels could apply to your DUI case, are essential.

Even if you ultimately decide to plead guilty to a DUI in North Carolina, having an experienced North Carolina DUI lawyer on your side can help minimize the legal consequences, and potentially help you obtain a limited driving privilege.

In any case, a DUI attorney can help guide you through the complex North Carolina DUI process. Whether it's your first offense or your third offense, you need information and help, and you need them fast. It's in your best interest to consult an attorney near you or find help by asking a question on our forum of hundreds of attorneys and other legal professionals.

References:

  1. https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_20/GS_20-138.5.html
  2. https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_20/GS_20-138.1.html
  3. https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_20/gs_20-16.2.html
  4. http://www.duiblock.com/dui_checkpoint_locations/north_carolina/
  5. https://backgroundchecks.org/which-states-have-the-worst-dui-problems.html
  6. https://www.ncdot.gov/dmv/offices-services/administrative-hearings/Pages/default.aspx

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