Can you lose your license under NC Implied Consent Law if you are on a Bike

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I always find it interesting that you can lose your license if you get drunk and choose to ride a bike home instead of driving your car.  It would seem that choosing to take a bike is a better decision.  However, under NCGS 20-16.2 (copied below), you have given implied consent to give a chemical test if you are operating any vehicle.  Under 20-4.01 (49), a bike is a vehicle.  To me this is a case where the legislature has not really thought the process through.  Shouldn't we encourage a drunk person to take a bike rather than a car?  The law does not say so.

§ 20-16.2.  Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.

(a)        Basis for Officer to Require Chemical Analysis; Notification of Rights. - Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.

Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person's breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

(1)        You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

(2)        Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.

(3)        The test results, or the fact of your refusal, will be admissible in evidence at trial.

(4)        Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

(5)        After you are released, you may seek your own test in addition to this test.

(6)        You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.

(a1)      Meaning of Terms. - Under this section, an "implied-consent offense" is an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense made subject to the procedures of this section. A person is "charged" with an offense if the person is arrested for it or if criminal process for the offense has been issued.

(b)        Unconscious Person May Be Tested. - If a law enforcement officer has reasonable grounds to believe that a person has committed an implied-consent offense, and the person is unconscious or otherwise in a condition that makes the person incapable of refusal, the law enforcement officer may direct the taking of a blood sample or may direct the administration of any other chemical analysis that may be effectively performed. In this instance the notification of rights set out in subsection (a) and the request required by subsection (c) are not necessary.

(c)        Request to Submit to Chemical Analysis. - A law enforcement officer or chemical analyst shall designate the type of test or tests to be given and may request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.

(c1)      Procedure for Reporting Results and Refusal to Division. - Whenever a person refuses to submit to a chemical analysis, a person has an alcohol concentration of 0.15 or more, or a person's drivers license has an alcohol concentration restriction and the results of the chemical analysis establish a violation of the restriction, the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating that:

(1)        The person was charged with an implied-consent offense or had an alcohol concentration restriction on the drivers license;

(2)        A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(3)        Whether the implied-consent offense charged involved death or critical injury to another person, if the person willfully refused to submit to chemical analysis;

(4)        The person was notified of the rights in subsection (a); and

(5)        The results of any tests given or that the person willfully refused to submit to a chemical analysis.

If the person's drivers license has an alcohol concentration restriction, pursuant to G.S. 20-19(c3), and an officer has reasonable grounds to believe the person has violated a provision of that restriction other than violation of the alcohol concentration level, the officer and chemical analyst shall complete the applicable sections of the affidavit and indicate the restriction which was violated. The officer shall immediately mail the affidavit(s) to the Division. If the officer is also the chemical analyst who has notified the person of the rights under subsection (a), the officer may perform alone the duties of this subsection.

(d)       Consequences of Refusal; Right to Hearing before Division; Issues. - Upon receipt of a properly executed affidavit required by subsection (c1), the Division shall expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division. Except for the time referred to in G.S. 20-16.5, if the person shows to the satisfaction of the Division that his or her license was surrendered to the court, and remained in the court's possession, then the Division shall credit the amount of time for which the license was in the possession of the court against the 12-month revocation period required by this subsection. If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws the request, or the person fails to appear at a scheduled hearing. The hearing officer may subpoena any witnesses or documents that the hearing officer deems necessary. The person may request the hearing officer to subpoena the charging officer, the chemical analyst, or both to appear at the hearing if the person makes the request in writing at least three days before the hearing. The person may subpoena any other witness whom the person deems necessary, and the provisions of G.S. 1A-1, Rule 45, apply to the issuance and service of all subpoenas issued under the authority of this section. The hearing officer is authorized to administer oaths to witnesses appearing at the hearing. The hearing shall be conducted in the county where the charge was brought, and shall be limited to consideration of whether:

(1)        The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;

(2)        A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(3)        The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;

(4)        The person was notified of the person's rights as required by subsection (a); and

(5)        The person willfully refused to submit to a chemical analysis.

If the Division finds that the conditions specified in this subsection are met, it shall order the revocation sustained. If the Division finds that any of the conditions (1), (2), (4), or (5) is not met, it shall rescind the revocation. If it finds that condition (3) is alleged in the affidavit but is not met, it shall order the revocation sustained if that is the only condition that is not met; in this instance subsection (d1) does not apply to that revocation. If the revocation is sustained, the person shall surrender his or her license immediately upon notification by the Division.

(d1)     Consequences of Refusal in Case Involving Death or Critical Injury. - If the refusal occurred in a case involving death or critical injury to another person, no limited driving privilege may be issued. The 12-month revocation begins only after all other periods of revocation have terminated unless the person's license is revoked under G.S. 20-28, 20-28.1, 20-19(d), or 20-19(e). If the revocation is based on those sections, the revocation under this subsection begins at the time and in the manner specified in subsection (d) for revocations under this section. However, the person's eligibility for a hearing to determine if the revocation under those sections should be rescinded is postponed for one year from the date on which the person would otherwise have been eligible for the hearing. If the person's driver's license is again revoked while the 12-month revocation under this subsection is in effect, that revocation, whether imposed by a court or by the Division, may only take effect after the period of revocation under this subsection has terminated.

(e)        Right to Hearing in Superior Court. - If the revocation for a willful refusal is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court district or set of districts defined in G.S. 7A-41.1, where the charges were made, within 30 days thereafter for a hearing on the record. The superior court review shall be limited to whether there is sufficient evidence in the record to support the Commissioner's findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.

(e1)      Limited Driving Privilege after Six Months in Certain Instances. - A person whose driver's license has been revoked under this section may apply for and a judge authorized to do so by this subsection may issue a limited driving privilege if:

(1)        At the time of the refusal the person held either a valid drivers license or a license that had been expired for less than one year;

(2)        At the time of the refusal, the person had not within the preceding seven years been convicted of an offense involving impaired driving;

(3)        At the time of the refusal, the person had not in the preceding seven years willfully refused to submit to a chemical analysis under this section;

(4)        The implied consent offense charged did not involve death or critical injury to another person;

(5)        The underlying charge for which the defendant was requested to submit to a chemical analysis has been finally disposed of:

a.         Other than by conviction; or

b.         By a conviction of impaired driving under G.S. 20-138.1, at a punishment level authorizing issuance of a limited driving privilege under G.S. 20-179.3(b), and the defendant has complied with at least one of the mandatory conditions of probation listed for the punishment level under which the defendant was sentenced;

(6)        Subsequent to the refusal the person has had no unresolved pending charges for or additional convictions of an offense involving impaired driving;

(7)        The person's license has been revoked for at least six months for the refusal; and

(8)        The person has obtained a substance abuse assessment from a mental health facility and successfully completed any recommended training or treatment program.

Except as modified in this subsection, the provisions of G.S. 20-179.3 relating to the procedure for application and conduct of the hearing and the restrictions required or authorized to be included in the limited driving privilege apply to applications under this subsection. If the case was finally disposed of in the district court, the hearing shall be conducted in the district court district as defined in G.S. 7A-133 in which the refusal occurred by a district court judge. If the case was finally disposed of in the superior court, the hearing shall be conducted in the superior court district or set of districts as defined in G.S. 7A-41.1 in which the refusal occurred by a superior court judge. A limited driving privilege issued under this section authorizes a person to drive if the person's license is revoked solely under this section or solely under this section and G.S. 20-17(2). If the person's license is revoked for any other reason, the limited driving privilege is invalid.

(f)        Notice to Other States as to Nonresidents. - When it has been finally determined under the procedures of this section that a nonresident's privilege to drive a motor vehicle in this State has been revoked, the Division shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.

(g)        Repealed by Session Laws 1973, c. 914.

(h)        Repealed by Session Laws 1979, c. 423, s. 2.

(i)         Right to Chemical Analysis before Arrest or Charge. - A person stopped or questioned by a law enforcement officer who is investigating whether the person may have committed an implied consent offense may request the administration of a chemical analysis before any arrest or other charge is made for the offense. Upon this request, the officer shall afford the person the opportunity to have a chemical analysis of his or her breath, if available, in accordance with the procedures required by G.S. 20-139.1(b). The request constitutes the person's consent to be transported by the law enforcement officer to the place where the chemical analysis is to be administered. Before the chemical analysis is made, the person shall confirm the request in writing and shall be notified:

(1)        That the test results will be admissible in evidence and may be used against you in any implied consent offense that may arise;

(2)        Your driving privilege will be revoked immediately for at least 30 days if the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

(3)        That if you fail to comply fully with the test procedures, the officer may charge you with any offense for which the officer has probable cause, and if you are charged with an implied consent offense, your refusal to submit to the testing required as a result of that charge would result in revocation of your driving privilege. The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant.  (1963, c. 966, s. 1; 1965, c. 1165; 1969, c. 1074, s. 1; 1971, c. 619, ss. 3-6; 1973, c. 206, ss. 1, 2; cc. 824, 914; 1975, c. 716, s. 5; 1977, c. 812; 1979, c. 423, s. 2; 1979, 2nd Sess., c. 1160; 1981, c. 412, s. 4; c. 747, s. 66; 1983, c. 87; c. 435, s. 11; 1983 (Reg. Sess., 1984), c. 1101, ss. 5-8; 1987, c. 797, s. 3; 1987 (Reg. Sess., 1988), c. 1037, ss. 76, 77; c. 1112; 1989, c. 771, ss. 13, 14, 18; 1991, c. 689, s. 233.1(c); 1993, c. 285, ss. 3, 4; 1995, c. 163, s. 1; 1997-379, ss. 3.1-3.3; 1998-182, s. 28; 1999-406, ss. 1, 10; 2000-155, s. 5; 2006-253, s. 15; 2007-493, ss. 25, 27; 2011-119, s. 1.)

Getting a Ticket while on a provisional License in NC

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I often get calls from drivers who are under the age of 18 who are driving on a graduated license with limitations as to time and number of passengers.  If this is the case, the typical procedure is to have the case continued until after the driver can get their full license after driving for 6 months.  Failure to do this will result in the limitations being extended an additional 6 months.

Below is a great article by Shea Denning of the the North Carolina School of Government on the limitations and also whether or not the limitations are making an impact on the death rate of young drivers.

Vehicle crashes are the leading cause of death for teenagers in the United States. That’s why states no longer grant unrestricted driver’s licenses to teens once they turn 16, as they did when I was a kid. Instead, states grant driving privileges to teenagers under 18 only after they have been driving under a permit with supervision for a lengthy period of time, and, even then, only by degrees. Driver’s licenses issued to such teens typically restrict nighttime driving and/or the number of minors who may be present in the vehicle for some period of time after initial licensure. While many people readily accept the notion that teens are safer during the graduated licensing period–either because they aren’t driving unsupervised at night, because they don’t have a gaggle of friends in the car, or because they aren’t driving at all given the hassle associated with becoming licensed–they wonder whether the effects vanish once the teens are on their own.
First, let’s review North Carolina’s graduated licensing law.
North Carolina requirements. To obtain a driver’s license in North Carolina, a sixteen-year-old must:

1. Have held a limited learner’s permit issued by NC DMV for at least 12 months;
2. Not have been convicted of a motor vehicle moving violation, a seat belt infraction, or a violation of the law prohibiting use of a mobile phone by drivers under 18 in the preceding six months;
3. Pass a road test administered by NC DMV
4. Have a high school diploma, a GED, or a driving eligibility certificate issued by a school administrator stating that (a) the person is currently enrolled in school and is making progress toward obtaining a high school diploma, (b) a substantial hardship would be placed on the person or his or her family if the person did not receive a certificate, or (c) the person cannot make progress toward obtaining a high school diploma or GED
5. Have completed a driving log detailing a minimum of 60 hours of driving, at least ten of them at night.

G.S. 20-11(d).
Even then, a sixteen-year-old is granted a limited provisional license, which permits unsupervised driving from 5:00 a.m. until 9:00 p.m. and at any time when driving to and from work. When the license holder is driving unsupervised, there may be no more than one passenger under age 21 in the vehicle. This limit does not apply to passengers who are members of the license holder’s immediate family or who live in the same household with the driver. However, if a family member who is under 21 is in the vehicle, no non-family-member passengers who also are under 21 may be in the vehicle.
Failure to comply with the time-of-driving restriction constitutes operating a motor vehicle without a license, a Class 3 misdemeanor. G.S. 20-11(l). Failure to comply with the limitations on the number of passengers is an infraction, punishable by a fine of up to $100.
A sixteen-year-old who has held a limited provisional license for six months may obtain a full provisional license if he or she:

1. Has not been convicted of a motor vehicle moving violation, a seat belt infraction, or a violation of the law prohibiting use of a mobile phone by drivers under 18 in the preceding six months,
2. Has a driving eligibility certificate, a high school diploma or GED, and
3. Has completed a driving log documenting at least 12 hours of driving, six of them at night.

The restrictions on time of driving, supervision, and passengers do not apply to a full provisional licensee. Such drivers are still prohibited from using mobile phones while driving, subject to the limited exceptions in G.S. 20-137.3.
Are teens safer? North Carolina was among the pioneers of graduated licensing, adopting, along with Georgia and Michigan, a full three-tier stage licensing system in 1997. Parents love it, teens tolerate it, and researchers have concluded that North Carolina’s system in particular is associated with a reduced crash risk for sixteen-year old drivers in the years following initial licensure. See Masten & Foss, Long-term effect of the North Carolina graduated driver licensing system on licensed driver crash incidence: A 5-year survival analysis, 42 Accident Analysis & Prevention, 1647-1652 (stating that the findings “provide further evidence that crashing among young drivers is more commonly the result of what they have not yet learned than it is the result of the ‘foolishness of youth.’”)
Payback at 18? One comprehensive study has, however, associated graduated licensing with an increase in fatal crashes among 18-year-olds. See Masten, Foss & Marshall, Graduated Licensing and Fatal Crashes Involving 16- to 19-Year-Old Drivers, 306/10 JAMA, 1098-1103 (concluding based on nationwide examination of fatal crash data that stronger graduated licensing programs were associated with substantially decreased fatal crash incidence for 16-year-old drivers but somewhat higher fatal crash incidence for 18-year-old drivers). The studies’ authors posited that the amount learned under a graduated licensing program might not compare to what teens previously learned through experience alone. They noted that supervised driving is “co-driving, and some important lessons of experience, such as the need for self-regulation and what it means to be fully responsible for a vehicle, cannot be learned until teens begin driving alone.” Another potential explanation is that graduated licensing leads some teens to skip the supervised driving component altogether, waiting until they are 18 to apply for and be issued an unrestricted license.
In any event, the authors of the study cautioned that fatal crashes (the only type of crash data for which evidence is available nationally) differ in significant ways from less serious crashes. For example, fatal crashes are more likely to involve high-risk behavior such as alcohol use and excessive speeding. Because graduated licensing programs are designed to “improve learning among novice drivers and to protect them from the consequences of their inexperience as they learn,” rather than to “control the excessive behaviors often involved in fatal crashes,” graduated licensing should only influence fatal crashes caused by lack of understanding versus misbehavior. Ultimately, the study concludes that more research is required to determine what accounts for the increase among 18-year-olds and how changes to licensing policy might reduce this association.