Motor Vehicles; Alcohol and Drug Education Traffic Schools

Subject:

Motor Vehicles; Alcohol and Drug Education Traffic Schools.

Requested By:

Sarah T. Morrow, M.D., M.P.H. Secretary of Human Resources

Questions:

Relative to G.S. 20-179(b) establishing of Alcohol and Drug Education Traffic Schools:

1. a. Do judges have the discretionary authority to extend the time limit beyond the specified 75 days for payment of the required $100 fee for enrollment in the Alcohol and Drug Education Traffic School?

b. Does failure of the assigned student to pay the $100 fee within the 75 days constitute grounds to report said student back to court as failing to compelet the school&?

2. a. Does a guilty plea or verdict of guilty to G.S. 20-138(b) codify as a separate offense to G.S. 20-138(a)?

b. Is the period of revocation of driving privileges the same for G.S. 20-138(b) as G.S. 20-138(a)? Does G.S. 20-138(b) qualify as a first offense, and does the adjudged person qualify for a limited driving privilege even though that person may have one or more driving under the influence offenses on his or her driving record during the past seven years? Does G.S. 20-138(b) specifically apply to the completion of the school in the same manner as G.S. 20-138(a)?

1. Is it necessary that all persons found guilty of driving under the influence first offense be issued a limited driving privilege in order to have his or her driving privilege reinstated after six months?

2. If a person is convicted in another state for driving under the influence and this is a first offense and this person appears before a North Carolina District Court Judge, requests and receives a limited driving privilege, is assigned to the school, pays the fee and completes the school within 75 days, is this person then entitled to the return of his license at the end of six months?

3. a. When the Clerk reports to the Division of Motor Vehicles noncompliance for failure to complete the school, what should such a form contain&?

b. When a defendant receives limited driving privileges, and if for any reason a judge does not act on noncompliance as reported by the school for noncompletion, and the Clerk fails to notify the Division of Motor Vehicles for the noncompletion, will that student receive his license back in six months?

6. If a judge finds reason to believe that a person will not benefit from the school, or other circumstances which would be prohibitive for that person’s attendance, and that person does not request a limited driving privilege, may the judge:

a.

exempt the defendant from attending the school, or

b.

take an action other than the mandatory sentences under G.S. 20-179(a)?

Conclusions:

1. a. Yes, if the judge finds that failure to pay was not willful.

b. Yes.

2. a. Yes.

b. Yes; No; Yes.

1. Yes, the limited driving privilege pursuant to G.S. 20-179(b) is the instrument through which assignment to the Alcohol and Drug Education Traffic School is made, the completion of which is required for the six-month’s reduction in revocation.

2. Yes.

3. a. In the form of a court order revoking the limited driving privilege.

b. No.

6. a. Yes.

b. Yes.

As to Conclusion 1.a., G.S. 20-179(b)(5), in relevant part, reads:

". . . For purposes of this subsection, the phrase "failure to successfully complete the prescribed program of instruction at an Alchol and Drug Education Traffic School" includes . . . . willful failure to pay the required fee for the course, . . . The court shall revoke the limited privilege. The person possessing the limited privilege may obtain a hearing prior to revocation." (Emphasis added).

If the court finds upon hearing that the person possessing the limited privilege did not willfully fail to pay the required fee, it would follow that additional time to pay may be granted.

As to Conclusion 1.b., as set out in 1.a. above, the failure to willfully pay the required fee for the course would be grounds to report the possessor of the limited permit back to the court. However, it would appear that the failure to pay must be willful, which would be a matter for determination by the court. If the court finds that the failure to pay was not willful and orders payment in installments or at a future time certain, such would appear to be within the discretion of the court.

As to Conclusion 2.a., the fact of a blood alcohol of 0.10 percent under G.S. 20-138(b) is an offense while such blood alcohol content under G.S. 20-138(a) would be evidence of intoxication, but it would require additional evidence to prove that a person was appreciably under the influence of intoxicating liquor. See State v. Basinger, 30 N.C. App. 45.

As to Conclusion 2.b., the period or revocation under G.S. 20-138(a) and G.S. 20-138(b) is one year; however, if convicted under G.S. 20-138(a), convictions are cumulative for purpose of punishment under G.S. 20-179(a), and for driver license purposes while convictions under G.S. 20-138(b) are cumulative for punishment pursuant to G.S. 20-179(a), but conviction under G.S. 20-138(b) carries a one year driver’s license revocation while a second conviction under G.S. 20-179(a), within three years of a prior conviction, carries a four year revocation.

A second conviction of 0.10 percent would be cumulative and be considered a second conviction for purposes of G.S. 20-179(a) but would only carry a one year driver’s license revocation.

For the purpose of G.S. 20-179(b), a first conviction pursuant to G.S. 20-138(a) or G.S. 20-138(b) would have the same effect.

As to Conclusion 3, the wording of G.S. 20-179(b) requires the issuance of a limited driving permit to invoke the benefits accruing to the licensee thereunder and is in the nature of a condition precedent to assignment to an Alcohol and Drug Education Traffic School.

As to Conclusion 4, G.S. 20-179(b)(3) states:

"(3) If a person is convicted in another state or county or in a federal court of an offense that is equivalent to one of the provisions of G.S. 20-138(a), 20-138(b), 20-139(a) or 20-139(b), and if the person’s North Carolina driver’s license is revoked as a result of that conviction, the person so convicted may apply to the presiding or resident judge of the superior court or a district court judge of the district in which he resides for a limited driving privilege. Upon such application the judge may issue a limited driving privilege in the same manner as if he were the trial judge." (Emphasis added).

Once the limited driving privilege is issued, the holder thereof would be entitled to the benefits of the Alcohol and Drug Education Traffic School pursuant to G.S. 20-179(b) and the six months reduction in revocation provided upon completion.

As to Conclusion 5.a., upon failure to complete the Alcohol and Drug Education Traffic School, G.S. 20-179(b)(5) (set out in relevant part in 1.a. above) requires the court to revoke the limited driving privilege.

G.S. 20-24 requires that the action of the court be reported to the Division of Motor Vehicles.

If a form is needed for the purpose of reporting failures to complete the Alcohol and Drug Education Traffic School, a request should be made to the Administrative Office of the Courts for the development of such form.

As to Conclusion 5.b., until the Division of Motor Vehicles receives certification that a permittee has completed the Alcohol and Drug Education Traffic School, no action will be taken and the license would remain revoked for the full 12 month period.

As to Conclusion 6.a., G.S. 20-179(b)(1) reads, in relevant part:

". . . The trial judge may issue a limited driving privilege that does not contain a condition that the defendant successfully complete the program of instruction at an Alcohol and Drug Education Traffic School if:

a.

There is no Alcohol or Drug Education Traffic School within a reasonable distance of the defendant’s residence; or

b.

The defendant because of his history of alcohol or drug abuse, is not likely to benefit from the program of instruction; or

c.

There are specific, extenuating circumstances which make it likely (sic) that the defendant will not benefit from the program of instruction. The trial judge shall enter such specific findings in the record provided that in the case of subsection b. above such findings shall include the exact reasons why the defendant is not likely to benefit from the program of instruction and that in the case of subsection c. above such findings shall include the specific, extenuating circumstances which make it likely that the defendant will not benefit from the program of instruction." (Emphasis added).

As to Conclusion 6.b., the trial court may, pursuant to G.S. 20-179(b)(1), allow the defendant to participate in a program for alcohol or drug rehabilitation approved for this purpose by the Department of Human Resources.

G.S. 20-179(b) reads, in relevant part:

". . . The first three days of imprisonment pursuant to subdivisions (2) and (3) above shall not be subject to suspension or parole; provided that in lieu of such imprisonment pursuant to subdivision (2) above the court may allow the defendant to participate in a program for alcohol or drug rehabilitation approved for this purpose by the Department of Human Resources; . . ."

It should be noted that the above provision relative to a program for alcohol or drug rehabilitation speaks only to subsection (2) and is not the same as the Alcohol and Drug Education Traffic School. It would appear from the specific reference to a program for alcohol or drug rehabilitation that the substitution of Alcohol or Drug Education Traffic School would not meet the mandate of the statute unless the Alcohol or Drug Education Traffic School is specifically approved by the Department of Human Resources for that purpose.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General