DWI Law in North Carolina

Recent Changes in North Carolina DWI Law

Pretrial Limited Driving Privilege is now $100 and so is the Civil Revocation Fee. To prevent these charges we must file for a CVR hearing within 10 days of the arrest date. Post Trial limited driving privileges also cost $100.

Dec 1, 2006 new laws went into effect under “The Motor Vehicle Driver Protection Act.”

You can now get a DWI on a bicycle or lawnmower, but not a horse.
There are now stricter regulations for purchasing kegs.

Under the new N.C. G.S. 20-138.1, you can be convicted for DWI when any amount of a Schedule I controlled substance, as listed in N.C. G.S. 90-89, or its metabolites are present in your blood or urine.

There are stricter penalties for DWI’s with injuries or death to passengers or drivers in N.C. G.S. 20-191.4, now if someone is seriously injured you can be charged with a felony.

You can be convicted of a habitual DWI if you have been convicted of three prior DWI’s within 10 years under N.C. G.S. 20-138.5(a).

A refusal hearing with DMV has now become very important. Any appeal of a refusal hearing now is not a de novo hearing but a hearing in which the Superior Court will review the record to find out whether there is sufficient evidence to support the Hearing Commissioner’s findings of fact.

The checkpoint statutes have been modified by the legislature and they will be tested by competent defense attorneys.

Defendants may move to suppress evidence or dismiss charges only prior to trial, except the Defendant may move to dismiss the charges for insufficient evidence at the close of the State’s evidence and at the close of all of the evidence without prior notice. However, if during the course of trial, the Defendant discovers facts not previously known, the motion to suppress or dismiss may be made during the trial, under N.C. G.S. 20-38.6.

The State can have time to prepare for pretrial motions to procure witnesses and evidence and to conduct research.

A Judge can deny a motion to suppress if the Defendant fails to make the motion pretrial.

A judge must set forth, in writing, the findings of fact and conclusions of law and preliminary indicate whether the motion should be granted or denied.
Under N.C. G.S. 20-38.7, the State may appeal to Superior Court any District Court preliminary determination granting a motion to suppress OR dismiss. If there is a dispute about the findings of fact, the Superior Court shall determine the matter de novo.

The Defendant can only appeal a conviction at District Court.
When appeals from District Court are withdrawn, they can only be remanded back to District court with the consent of the prosecutor and Superior Court. If remanded back to District court, the District court shall consider any new convictions. Sentencing will be delayed on the remanded case until all cases are resolved.

Persons qualified as experts can testify as to results of the Horizontal Gaze Nystagmus test.

Persons qualified as Drug Recognition Experts can testify as to what drug they believe impairs the Defendant and why.

The fact that a person tested positive or negative for alcohol can be admissible in court by a roadside preliminary breath test.

Officer’s will now send affidavits to DMV for refusals and cases in which Defendant’s blow greater than .16 on the intoxilyzer to DMV under N.C. G.S. 20-16.2 (c1).

Law enforcement has improved access to medical records in impaired driving cases through N.C. G.S. 90-21.20B.

The State can seize your car if the Defendant did not have a valid driver’s license and had no insurance under N.C. G.S. 20-28.2 (a1)(1).

Prohibits anyone in a motor vehicle from having an open container of beer or wine.

Requires the ignition-interlock system device installed if the person had a blood-alcohol content of .15 or greater in all vehicles registered under that persons name before their license is reissued.

A blood-alcohol content of .04 and for those who have been convicted of a DWI and had their license reinstated.

For those who have been convicted of a second DWI and have their license reinstated, a blood alcohol content of .00 is required.

North Carolina DUI/DWI Law is primarily governed by NC General Statute Section 20-138.1 and Section 20-16.

20-16: Authority of Division to suspend license.

The Division shall have authority to suspend the license of any operator with or without a preliminary hearing upon a showing by its records or other satisfactory evidence that the licensee:

(1) through (4) Repealed by Session Laws 1979, c. 36;

(5) Has, under the provisions of subsection (c) of this section, within a three-year period, accumulated 12 or more points, or eight or more points in the three-year period immediately following the reinstatement of a license which has been suspended or revoked because of a conviction for one or more traffic offenses;

(6) Has made or permitted an unlawful or fraudulent use of such license or a learner’s permit, or has displayed or represented as his own, a license or learner’s permit not issued to him;

(7) Has committed an offense in another state, which if committed in this State would be grounds for suspension or revocation;

(8) Has been convicted of illegal transportation of alcoholic beverages;

(8a) Has been convicted of impaired instruction under G.S. 20-12.1;

(8b) Has violated on a military installation a regulation of that installation prohibiting conduct substantially similar to conduct that constitutes impaired driving under G.S. 20-138.1 and, as a result of that violation, has had his privilege to drive on that installation revoked or suspended after an administrative hearing authorized by the commanding officer of the installation and that commanding officer has general court marital jurisdiction;

(9) Has, within a period of 12 months, been convicted of (i) two or more charges of speeding in excess of 55 and not more than 80 miles per hour, (ii) one or more charges or reckless driving and one or more charges of speeding in excess of 55 and not more than 80 miles per hour, or (iii) one or more charges of aggressive driving and one or more charges of speeding in excess of 55 and not more than 80 miles per hour;

(10) Has been convicted of operating a motor vehicle at a speed in excess of 75 miles per hour on a public road or highway where the maximum speed is less than 70 miles per hour;

10a) Has been convicted of operating a motor vehicle at a speed in excess of 75 miles per hour on a public highway where the maximum speed is 70 miles per hour; or

(11) Has been sentenced by a court of record and all or a part of the sentence has been suspended and a condition of suspension of the sentence is that the operator not operate a motor vehicle for a period of time.

20-138.1: Impaired driving


A person commits the offense of impaired driving if he drives 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.

(b)Defense Precluded

The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.


In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.

(d)Sentencing Hearing and Punishment

Impaired driving as defined in this section is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge must hold a sentencing hearing and impose punishment in accordance with G.S. 20-179.


Notwithstanding the definition of “vehicle” pursuant to G.S. 20-4.01(49), for purposes of this section the word “vehicle” does not include a horse, bicycle, or lawnmower. (1983, c. 435, s. 24; 1989, c. 711, s. 2; 1993, c. 285, s. 1.)

20-138.3: Driving by person less than 21 years old after consuming alcohol or drugs.

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.

(b)Subject to Implied-Consent Law
An offense under this section is an alcohol-related offense subject to the implied-consent provisions of G.S. 20-16.2.

(b1)Odor Insufficient
The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver’s body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.

(b2)Alcohol Screening Test
Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violation of subsection (a) of this section, and the results of an alcohol screening test or the driver’s refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver’s body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, and the screening test is conducted in accordance with the applicable regulations of the Commission as to its manner and use.

(c)Punishment; Effect When Impaired Driving Offense Also Charged
The offense in this section is a Class 2 misdemeanor. It is not, in any circumstances, a lesser included offense of impaired driving under G.S. 20-138.1, but 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.

(d)Limited Driving Privilege
A person who is convicted of violating subsection (a) of this section and whose drivers license is revoked solely based on that conviction may apply for a limited driving privilege as provided in G.S. 20-179.3. This subsection shall apply only if the person meets both of the following requirements:

(1) Is 18, 19, or 20 years old on the date of the offense.
(2) Has not previously been convicted of a violation of this section.

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