Motor Vehicles; Driving Under Influence Offenses

Subject:

Motor Vehicles; Driving Under Influence Offenses

Requested By:

Ed McClearen Assistant District Attorney Tenth Prosecutorial District

Question:

Under N.C.G.S.20-179, where there is a prior conviction for driving under the influence, how many years must have elapsed in order that the current conviction may be considered a first conviction?

Conclusion:

Three or more years must elapse.

N.C.G.S. 20-179(a), in relevant part, reads:

"Convictions for offenses occurring prior to July 1, 1978, or more than three years prior to the current offense shall not be considered prior offenses for the purpose of subdivisions (2) and (3) above."

As to the criminal penalty, this means that if a person was charged and convicted of DUI in June 1978, and then again in January 1980, the January 1980 conviction would be punishable as a DUI first offense, as no offenses occurring prior to July 1978 can be considered. Under the law prior to amendment, there was no imprisonment upon a conviction of second offense DUI. Thus, there can be no retroactive effect of the new law without violating the ex post facto rules.

However, the provisions of G.S. 20-179(b) are applicable only when the question of a limited driving privilege arises. In relevant part, it reads:

"For the purpose of determining whether the conviction is a first conviction, no prior offense occurring more than seven years before the date of the current offense shall be considered. In addition, convictions for violations of any provision of G.S. 20-138(a), 20-138(b), 20-139(a), or 20-139(b) shall be considered previous convictions. Convictions prior to January 1, 1980, shall be considered for purposes of this subsection."

The time limitation involved in G.S. 20-179(b) is seven years. Using the above example, the June 1978 conviction would be a first conviction. Thus, a January 1980 conviction would be a second conviction and a limited driving privilege would not be available. Because no criminal penalties are imposed, there is no ex post facto effect, and offenses occurring prior to the effective date of the statute can be considered. By way of further example, if a person was convicted of DUI in June 1962 and again in January 1980, more than seven years have elapsed between the convictions. The January 1980 conviction would then be a first conviction under G.S. 20179(b), and the offender would be eligible for a limited driving privilege.

Rufus L. Edmisten Attorney General

Jane P. Gray Associate Attorney