www.kisslinglaw.com
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(2) Repealed by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.)
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