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.

New Traffic Laws

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There are several new laws  being considered this legislative session that will affect drivers.  Below are a few of interest.

Ramp meter violation created.

This session law contains several changes

involving the state Department of Transportation. Of direct relevan

ce to criminal law, section 10

amends G.S. 20-4.01 to define “ramp meter” as a traffic control device that consists of a circular red

and circular green display placed at a point along an interchange entrance ramp. New G.S. 20-158(c)(6), effective for offe

nses committed on or after December 1, 2014, provides that when a

ramp meter is displaying a circular red display, vehicles facing the red light must stop. When displaying green, a vehicle may proceed for each lane of traffic facing the meter. When the display is dark or not red or green, a vehicle may proceed without stopping. A violation of the subdivision is an infraction without assessment of driver’s license points or insurance surcharge.

Texting While Driving:

The Legislature is considering changing Texting While Driving from having no points to a "Serious Infraction" that will carry both driving points and insurance points.

Mopeds:

Currently, Mopeds are not required to be registered if they have fewer than 50 CCs.  Under the proposed law, all mopeds will be required to be registered thereby causing the owner to pay registration fees and property taxed on a yearly bases.  In addition, they will also have to be inspected each year.

Affect of Driving School on Teenage Drivers

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I have often thought making a teenage driver attend a safe driving course to get a ticket reduced was not only a waste of time but simply a money grab by the system to get more money to a private organization or the community colleges.  The article below confirms this thought by showing drivers training does little if any to make teens better drivers.

Thanks again to Shea Denning of the NC School of Government for her article.



Fifteen-year-old Laura Yost died on September 23 from injuries she sustained after the teenage driver of the car she was riding in turned left in front of an oncoming dump truck. A few days later, fifteen-year-old Braden Rock died after his 17-year-old sister turned left in front of an oncoming car. The next morning, 11–year-old Michael Burgess was walking across the street to board his school bus when he was struck by a car driven by a 16-year-old and seriously injured. Many have questioned in the wake of these events how such injuries might be prevented in the future.
Some have raised concerns about the legislature’s decision last session to eliminate state funding for local driver’s education programs beginning with the 2015-16 fiscal year. Yet all of the teenager drivers involved in these accidents successfully completed driver’s education, and it obviously did not inoculate them from negligent driving. Perhaps more such accidents would occur if there were no formalized driver’s education training.  Unfortunately, despite the millions spent on driver’s education programs in North Carolina every year for decades, the simple truth is that we have no idea whether driver’s education has any effect on teen driving safety.

There is no data.  The General Assembly’s Program Evaluation Division (PED) submitted a lengthy report to the legislature last March recommending that it strengthen the accountability of the statewide driver education program by requiring statewide performance measures to assess its effectiveness and efficiency. The report contains a blistering review of the Department of Public Instruction’s (DPI) oversight and management of driver’s education. The report concluded that DPI did not collect sufficient and reliable data to determine the efficiency and effectiveness of driver education, did not have a uniform method to deliver driver education statewide, and did not monitor local instructors. Among the findings reported were that 46% of students attempting the DMV license test from 2007 through 2013 failed the test—including students making multiple attempts.  All of these students had successfully completed driver’s education.
What does work? While North Carolina’s accident and fatality rates for teen drivers remains high, teen traffic injury and fatality rates in North Carolina and nationwide have declined substantially over the past decade. That decline is attributed in large measure to graduated driver’s licensing, of which novice driver education is a part. However, research suggests that components of graduated licensing other than formalized driver education have accounted for the reduction. Namely, reduced accident rates have been associated with delaying unsupervised teen driving, increasing hours of mature adult supervised behind-the-wheel experience, limiting nighttime driving, and limiting novice teen drivers to no more than one teen passenger.
The Center for the Study of Young Drivers, part of the University of North Carolina Highway Safety Research Center, says that most novice drivers don’t have enough practical experience when they are first licensed.  Indeed, the Center characterizes the limited experience teens gain in standard driver education programs as “not even enough for novice drivers to become minimally competent, much less proficient.” The Center states that additional research is needed to determine how much driving experience is enough, noting that one study found a decrease in crash rates among teens who amassed about 118 hours of supervised driving practice before being licensed.
There’s an app for that. The Center has developed a smartphone application, Time to Drive, to support supervisors of teen drivers. The app records the amount of driving and conditions, and generates a log that drivers can provide to DMV, keeps track of “hard stops,” and encourages the parent and teen to meet driving goals.
Parents can supervise even when they aren’t in the car. The Center suggests that parents can also play an important role after their teen begins to drive unsupervised by, for example, negotiating a parent-teen driving agreement that clearly spells out the expectations and responsibilities of parents and teens and using devices, such as DriveCam, that allow vehicle information and driver behavior to be recorded and monitored.
The Time to Drive webpage has many other helpful hints for parents, including advice about what kind of vehicles are best for a novice driver.
The entire community is looking for a solution, and advice from the experts seems a good place to start.

Portable Breathalizer Test (PBT)

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For some time now, PBT test have not been admissible to determine if a person is driving while impaired in North Carolina.  The test is only allowed to be used to determine if the impairing substance is alcohol.  Below is a great article on what the test can be used for and what it cannot be used for in North Carolina.

The Old Portable Breath Test Ain’t What She Used to Be

Posted on September 16, 2014 by Shea Denning • 1 comment

Portable breath tests don’t go very far anymore in proving whether a suspect is impaired from alcohol.  That’s because the legislature amended G.S. 20-16.3(d) in 2006 to provide that the alcohol concentration results from such a test, termed an alcohol screening test by statute, are not admissible in court— not even for purposes of determining probable cause—and may not be relied upon by a law enforcement officer. An officer may rely upon, and a court may receive evidence of, whether the result from such a test was positive or negative. But since a positive result merely establishes the presence of alcohol, and driving after drinking by a person who is over 21 is not a crime, such evidence doesn’t add much proof of impairment.
The court of appeals applied this rule in two cases decided today:  State v. Overocker and State v. Townsend. In Overocker, the court concluded that evidence that a defendant smelled “faint[ly]” of alcohol, had consumed drinks at a bar, registered a positive result on a portable breath test and backed over a motorcycle in a parking lot that was parked illegally behind his sports utility vehicle were not sufficient to establish probable cause that the defendant was driving while impaired. In Townsend, the court determined that though the trial court erred in admitting the numerical results of the portable breath test at a pre-trial hearing on the defendant’s motion to suppress, other evidence was sufficient to establish probable cause that the defendant was driving while impaired, and the violation did not entitle the defendant to a new trial.
Somewhat oddly, the alcohol concentration results of a portable breath test are admissible for purposes of establishing probable cause in the one context in which evidence of a positive or negative result would be just as probative, namely to prove any of the several zero tolerance offenses under State law.  See G.S. 20-138.2A(b2), 20-138.2B(b2), 20-138.3(b2).  It is unclear why the General Assembly amended G.S. 20-16.3 to preclude reliance upon and admission of alcohol concentration results from portable breath testing instruments at pre-trial hearings for other offenses. The amendments were part of an Act that otherwise facilitated the State’s prosecution of impaired driving offenses and broadened the rules governing the admissibility of evidence by, for example, approving the admission of expert testimony regarding the result of a Horizontal Gaze Nystagmus (HGN) test when the test is administered by a person trained in HGN.  Presumably the reliability of portable breath test results was the General Assembly’s concern.  See, e.g.,  People v. Aliaj, 36 Misc. 3d 682, 693 (N.Y. Sup. Ct. 2012) (noting that “tests given in the field are prone to multiple possibilities for interference which may not exist at police stations” including varying lighting conditions, radio interference, temperature, and the location’s physical layout).
Former G.S. 20-16.3 (2005), like the current statute, required that tests be made on approved devices and in accordance with applicable regulations and permitted the admission of alcohol concentration results only for purposes of determining probable cause.  Other courts have considered those safeguards sufficient. See, e.g., Der v. Connolly, 666 F.3d 1120, 1131 (8th Cir. 2012) (noting that while a portable breath test lacks sufficient reliability to be admitted as substantive evidence, it is admissible to establish probable cause). North Carolina is not, however, alone in further limiting the use of such evidence.  See Greene v. Commonwealth, 244 S.W.3d 128, 134-35 (Ky. Ct. App. 2008) (concluding that though the results of a portable breath test are inadmissible to prove guilt or for sentencing purposes, the pass/fail result of a portable breath test is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress). Whatever the legislature’s reasoning, the limits exist and they unquestionably diminish the probable value of evidence from portable breath tests.
Overocker highlights the effect of this limitation. Though there was no dispute that the defendant in Overocker had consumed alcohol, he showed no outward signs of impairment and performed satisfactorily on field sobriety tests.  Indeed, he only came into contact with law enforcement officers because of a traffic accident that was not his fault.  Because of the rule in G.S. 20-16.3(d), no evidence appears in the record or was introduced in court of the alcohol concentration result that registered on the portable breath test. One might speculate, based on the officer’s subsequent arrest of the defendant, that the result approached a minimum level of 0.08.  If there was in fact such a result, and it had been admitted, one might have expected a different ruling from the trial court.  Under G.S. 20-16.3(d), however, the precise results were inadmissible, and the positive result revealed nothing that was not already known, i.e. that the defendant had consumed alcohol. Thus, there was no probable cause for the arrest.