No Operators License

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A ticket for No Operators License is a class 3 misdemeanor, carries 3 driving points and one insurance point.  Too many can result in a revocation and if obtained during a period of revocation, can add a year to the revocation.  In addition, due to the changes in the law, there are many who cannot get a license due to the lack of documentation,

NCGS 20-35 states:

§ 20-35.  Penalties for violating Article; defense to driving without a license.

(a)        Penalty. - Except as otherwise provided in subsection (a1) or (a2) of this section, a violation of this Article is a Class 2 misdemeanor unless a statute in the Article sets a different punishment for the violation. If a statute in this Article sets a different punishment for a violation of the Article, the different punishment applies.

(a1)      The following offenses are Class 3 misdemeanors:

(1)        Failure to obtain a license before driving a motor vehicle, in violation of G.S. 20-7(a).

(2)        Failure to comply with license restrictions, in violation of G.S. 20-7(e).

(3)        Permitting a motor vehicle owned by the person to be operated by an unlicensed person, in violation of G.S. 20-34.

(a2)      A person who does any of the following is responsible for an infraction:

(1)        Fails to carry a valid license while driving a motor vehicle, in violation of G.S. 20-7(a).

(2)        Operates a motor vehicle with an expired license, in violation of G.S. 20-7(f).

(3)        Fails to notify the Division of an address change for a drivers license within 60 days after the change occurs, in violation of G.S. 20-7.1.

(b)        Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 761, s. 4.

(c)        Defenses. - A person may not be found responsible for failing to carry a regular drivers license if, when tried for that offense, the person produces in court a regular drivers license issued to the person that was valid when the person was charged with the offense. A person may not be found responsible for driving a motor vehicle with an expired drivers license if, when tried for that offense, the person shows all the following:

(1)        That, at the time of the offense, the person had an expired license.

(2)        The person renewed the expired license within 30 days after it expired and now has a drivers license.

(3)        The person could not have been charged with driving without a license if the person had the renewed license when charged with the offense.  

New Moped rules

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New laws on Mopeds in North Carolina.  Thank you to NC SOG for their blog post.

Laws governing the operation of mopeds have changed significantly in recent years. Mopeds now must be registered before they may be driven on state roadways, and the owner of the moped must have insurance.  An overview of the current legal requirements for moped operation is set forth below. 
First, what’s a moped?  For years, the term “moped,” has not been separately defined in the motor vehicle statutes. Instead, the term is defined in the State’s tax statutes as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” G.S. 105-164.3. Effective December 1, 2016, however, Chapter 20 will have its own definition, which will be incorporated into the tax statutes by cross reference.
New G.S. 20-4.01(27)d1 defines a moped as “[a] vehicle, other than a motor-driven bicycle or electric assisted bicycle, that has two or three wheels, no external shifting device, a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface. The motor may be powered by electricity, alternative fuel, motor fuel, or a combination of each.” S.L. 2016-90 (H 959), section 13.(a).
The registration requirement.  G.S. 20-53.4, effective July 1, 2015, requires that mopeds be registered before being driven on the streets or highways of the state. To be registered, the moped must have a manufacturer’s certificate of origin and must be designed and manufactured for use on highways or public vehicular areas.
The fee for registering a moped is the same as for registering a motorcycle: $24.  G.S. 20-87(6).
Driving an unregistered moped on a street or allowing a moped you own to be so driven is a Class 2 misdemeanor. G.S. 20-111(1). The same is true for failing to display a current registration plate on a moped. Id.
The insurance requirement.  G.S. 20-309(a) requires, as of July 1, 2016, that owners of mopeds provide proof of financial responsibility before a moped may be registered and that they maintain such a policy throughout the registration period. Legislation was proposed in 2016 to delay this effective date, but was not enacted. S 821, section 46.(a).
Moped drivers must be at least 16 years old. G.S. 20-10.1 makes it unlawful for a person under the age of 16 to operate a moped upon a street or public vehicular area. Violation of this provision is a Class 2 misdemeanor. G.S. 20-35.
Moped drivers are not required to have a driver’s license. While the North Carolina Department of Transportation has recommended that driver’s licenses be required for the operation of mopeds, the General Assembly has not acted on that recommendation.

Implied Consent

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New case on Implied consent and and how it relates to breathalizers and blood test.  Thank you to Shea Denning from the NCSOG for the post.

The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:

• Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
• Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.

Three cases were consolidated for oral argument and decision in Birchfield.
Blood test refusal. In Birchfield v. North Dakota, the defendant was arrested for driving while impaired.  The officer advised him that North Dakota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Birchfield refused to let his blood be drawn. He was thereafter prosecuted for his refusal, a misdemeanor crime. The North Dakota Supreme Court affirmed his conviction.
Breath test refusal. In Bernard v. Minnesota, the defendant was arrested for driving while impaired.  The officer advised him that Minnesota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Bernard refused to submit to a breath test. He was prosecuted criminally for his refusal. Because he had four prior impaired driving convictions, Bernard’s refusal was punishable by up to seven years imprisonment. The Minnesota District Court dismissed the charges on the basis that warrantless breath testing was not permitted under the Fourth Amendment.  The state court of appeals reversed, and the state supreme court affirmed the court of appeals.
Blood test with consent. In Beylund v. Levi, the defendant was arrested for driving while impaired and was taken to a hospital.  There he was informed that under North Dakota law, he was required to submit to chemical testing and that failure to do so was a crime. Beylund agreed have his blood drawn and analyzed. Because the resulting alcohol concentration revealed a blood alcohol concentration of 0.25, Beylund’s license was suspended for two years.  He appealed from the suspension, arguing that he did not voluntarily consent to the search, but only did so to avoid criminal prosecution for refusing. The North Dakota Supreme Court rejected Beylund’s argument.
Though their circumstances differed, each petitioner’s claim rested on his assertion that the criminal law cannot compel a person to submit to chemical testing unless a warrant is issued authorizing such testing.
Permissible search incident to arrest?  Writing for the majority, Justice Alito first considered whether the chemical testing of an impaired driving suspect’s breath or blood could be carried out as a warrantless search incident to arrest. The Court explained that the authority to search a person incident to arrest was a categorical rule that did not depend upon the characteristics of a particular arrestee.  The Court then employed the test it had used in Riley v. California, 573 U.S. __ (2014), to determine whether a given type of search should be exempted from the warrant requirement:  Does the need for the search in light of a legitimate government interest outweigh the individual’s privacy interest?
Breath tests. The Court characterized the physical intrusion involved in breath testing as “almost negligible,” and observed that breath tests reveal “only one bit of information,” namely “the amount of alcohol in the subject’s breath.” Slip op. at 20-21. Moreover, the court opined that participation in a breath test does not greatly enhance the embarrassment already inherent in any arrest.
Blood tests. Blood tests are different. The process is “significantly more intrusive than blowing in a tube” as it requires piercing of the skin. Slip op. at 23. And even though such tests involve little pain or risk, people do not relish the process. Moreover, blood samples can provide information beyond a person’s blood alcohol concentration.
State’s interest. The states and the federal government have a paramount interest in keeping public highways safe.  Alcohol consumption is the leading cause of traffic deaths. To deter driving while impaired, states have adopted per se blood alcohol concentration levels and have adopted implied consent laws to induce drivers to submit to chemical testing. States first punished refusal by suspending a driver’s driving privileges.  Some states then upped the ante, prosecuting such refusals as a crime. These laws are designed to provide an incentive to cooperate with testing and thus serve an important function.
Holding. Weighing these interests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.  The Court found no justification, however, for demanding a blood test as a search incident to arrest. Blood tests are significantly more intrusive, and the State may require the less invasive alternative of a breath test.
Implied consent? The Court next considered whether a warrantless blood tests could be justified based on a driver’s legally implied consent. Noting that prior opinions “have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply,” the Court cautioned that “nothing we say here should be read to cast doubt on them.” Slip op. at 36.
The Court distinguished the laws in the cases before it from the general concept of implied consent laws with civil penalties.  North Dakota and Minnesota not only mandate blood testing but also impose criminal penalties for the refusal to cooperate.  The Court explained that the consequences to which motorists may be deemed to have consented by driving on public roads must be reasonable. The Court concluded that deeming a driver to have consented to a blood test under threat of criminal prosecution was an unreasonable requirement.
Applying its conclusions to the cases before it, the court ruled as follows:
Birchfield: The blood draw that Birchfield refused cannot be justified as a search incident to arrest or based on implied consent. Moreover, there was no exigency. Because Birchfield was threatened with an unlawful search, the Supreme Court reversed his conviction for refusing that search.
Bernard: The breath test that Bernard refused was a permissible search incident to arrest. Officers did not need a warrant to carry out the test, and Bernard had no right to refuse search. Thus, the court affirmed Bernard’s conviction.
Beylund: Beylund submitted to a blood test after being warned that if he did not, he would be criminally prosecuted. That warning was partially inaccurate as he could not lawfully be prosecuted for such a refusal. Thus, the Supreme Court remanded Beylund’s case for a determination by the state court as to whether Beylund’s consent was voluntary.
Birchfield fails to coherently explain the theory of implied consent. The Court did not address whether a person’s refusal to submit to a warrantless blood test may be sanctioned by the revocation of a person’s license. Different parts of the opinion point to different conclusions about that issue. On the one hand, Birchfield went out of its way not to throw shade on implied consent laws that impose civil rather than criminal penalties for refusing chemical testing. That portion of the opinion indicates that implied consent laws that impose civil or administrative penalties do not abridge a suspect’s constitutional rights. On the other hand, Birchfield’s consideration of whether chemical testing is a search incident to arrest suggests that implied consent laws don’t dictate what measures are reasonable under the Fourth Amendment.  And if it isn’t reasonable under the Fourth Amendment to require a person’s submission to a warrantless breath test, then how can a person be sanctioned for that refusal, regardless of whether the sanction is civil or criminal in nature?
Birchfield further indicates that consent is to be determined based on the totality of all the circumstances rather than by a legal construct that implies a driver’s consent to such testing. Many courts with implied consent laws have assumed the voluntariness of a suspect’s acquiescence to testing when it follows implied consent warnings. But see Williams v. State, 771 S.E.2d 373 (Ga. 2015) (discussed here, holding that impaired driving suspect’s agreement to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement).
Impact in NC. Unlike North Dakota and Minnesota, North Carolina does not impose criminal penalties for refusing implied consent testing. Instead, G.S. 20-16.2 requires license revocation (and renders the fact of refusal admissible at the person’s criminal trial) as a consequence of such a refusal. Thus, much of what the court decided in Birchfield will not affect NC.  The Court’s holding that warrantless blood testing under a state’s implied consent law is not permissible as a search incident to arrest is, however, significant for NC. Birchfield makes clear that law enforcement officers in NC who desire to test an impaired driving suspect’s blood for evidence of impairment must obtain a warrant, a person’s consent, or rely upon exigent circumstances to lawfully conduct such testing. Thus, Birchfield affirms the court of appeals’ conclusion in State v. Romano, ___ N.C. App. ___, 785 S.E.2d 168 (2016) (discussed here) that the warrantless withdrawal of blood from an unconscious impaired driving suspect runs afoul of the Fourth Amendment, notwithstanding provisions of NC’s implied consent law that authorize such testing. And, as noted above, Birchfield may also broaden the inquiry into whether a suspect’s consent to testing was voluntary.

When is your registration really due?

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Great article by Shea Denning of NCSOG.

Facts. An undercover Greensboro narcotics detective was monitoring the activities of passengers who disembarked from a bus early in the morning of October 6, 2014, when the actions of one passenger caught his attention. The passenger and his companion got off of the bus and walked into a nearby convenience store. The passenger came back out of the store a couple of minutes later, walked backwards towards the detective’s unmarked car, looked into the car, shooed the detective away, and walked back into the store. A burgundy Buick then pulled into the parking lot. The bus passenger got into the passenger seat of the Buick and his companion got into the right rear seat. The Buick then left the parking lot. The detective entered the Buick’s license plate into his mobile computer terminal, which accessed information from the Division of Motor Vehicles (DMV). The detective, who suspected the pair of drug trafficking activity, subsequently radioed other officers to report that the Buick’s registration was expired and that it “had an inspection violation.”
Another detective received the alert and independently typed the license plate information into his computer. The report from DMV showed that the Buick’s license plate was issued on 9/26/2013, that its status was “EXPIRED,” and that the plate was “VALID THRU: 10152014.” The DMV report contained no information about the status of the car’s inspection. Based on this information, the detective stopped the vehicle and told the driver, Sandy Baskins, that he had been stopped for an expired registration and inspection violation. Baskins consented to a search of the car. A drug-trained dog alerted to the front and rear passenger seats. All three passengers were searched, and officers found heroin inside the pants of the rear seat passenger.
Procedure. The driver, Sandy Baskins, was indicted for trafficking in heroin. He filed a motion to suppress evidence resulting from the traffic stop. The trial court denied the motion. Baskins was convicted at trial and appealed.
Court of Appeals. Baskins challenged the trial court’s findings of fact that the registration and inspection for the Buick had expired. With respect to the registration, the court of appeals cited the rule in G.S. 20-66(g) that permits operation of a vehicle until midnight on the fifteenth day of the month following the month in which the sticker expires
Thus, the court concluded that “[a]s far as the registration was concerned, Defendant was operating the Buick lawfully, and Detective O’Hal was provided confirmation of this fact in the information he requested and received from DMV.” (Slip op. at 7-8).
As for the inspection, the court noted that the DMV screen the officers examined did not contain information about the vehicle’s inspection. Thus, the record did not contain substantial evidence that the Buick was being operated with an expired inspection status.  (Unfortunately for procrastinators like me, there is no fifteen day grace period to obtain a vehicle inspection. See G.S. 20-183.4C(a)(6).)
The appellate court thus overruled the objected-to findings of fact.
But the appellate court did not reverse Baskins’ conviction. Instead, the court of appeals determined that the trial court had not made a proper conclusion of law when it found that “[t]he temporary detention of a motorist upon probable cause to believe he has violated a traffic law (such as operating a vehicle with expired registration and inspection) is not inconsistent with the Fourth Amendment . . . . O’Hal was justified in stopping Defendant[s’] vehicle.”
The court of appeals explained that while this conclusion “intimates that Detective O’Hal was justified in initiating the stop based upon either the alleged registration violations or the alleged inspection violation . . . it does not actually make any such conclusion.” (Slip Op. at 12.)
Thus, the court remanded for “further action consistent with this opinion, including making additional findings of fact and conclusions of law as necessary.” (Slip Op. at 13.) The appellate court stated that the trial court had discretion to take additional evidence “in order to comply with this holding.” Id. (citing State v. Gabriel, 192 N.C. App. 517 (2008) (vacating order denying motion to suppress and remanding for additional evidence where trial court failed to enter a written suppression order containing findings of fact or conclusions of law)).
Down to the wire. I thought everyone knew that a vehicle could not be stopped for an expired NC registration during the fifteen-day grace period following expiration. Now that the court of appeals has cleared up any doubt about that issue, NC motorists can continue to drive halfway through the month that follows the expiration of their vehicles’ registrations without worry of being stopped for a violation of G.S. 20-66. It remains to be seen, however, whether the application of this rule will result in a new trial for Sandy Baskins.

DEATHS CAUSED BY UNDOCUMENTED DRIVERS

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Interesting article on deaths caused by illegal immigrants compared to DWIs.

In the five years since an unlicensed illegal immigrant ran down his son, Don Rosenberg has turned his anger and grief into a mission to answer a seemingly simple question: How many people are killed each year by drivers who don’t belong in the U.S., much less behind a wheel?
Drew Rosenberg, a 25-year-old student at Golden Gate University, was riding his motorcycle in San Francisco when Roberto Galo struck him on Nov. 16, 2010. In his frenzied effort to flee the scene, Galo ran over his victim twice. The elder Rosenberg got the news no parent should hear from San Francisco General Hospital that night, but what he would learn over the next few years only compounded his bitterness.
As many as 7,500 Americans -- 20 per day -- are killed annually by unlicensed drivers, and Rosenberg calculates that more than half are the victims of illegal immigrants. Now, by testifying before lawmakers, speaking to parents who have been through the same ordeal and posting his research on his nonprofit’s website, unlicensedtodrive.org, Rosenberg is shedding light on a frightening number not readily available from government sources.

“Our archives are filled with stories of drunk-driving illegals killing U.S. citizens.”
- William Gheen, Americans for Legal Immigration

“I was stunned at what I found,” said Rosenberg, who at 63 is semi-retired from the entertainment and publishing industry. “Not only were unlicensed drivers killing people in numbers only exceeded by drunk drivers, but many times they were barely being punished and many times faced no charges at all.”
Galo, a Honduran, who entered the country illegally but earned temporary protective status, had been cited five months earlier for driving without a license or insurance and heading the wrong way on a one-way street in San Francisco. His car was impounded for a day, he paid a fine for the moving violation and the other charges were dropped.

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Drew Rosenberg, (l.), was killed by a man his father Don, (r.), believes should not have been in the country. (Courtesy: Don Rosenberg)

After he was convicted of manslaughter, Galo served six weeks in jail and was released. He was deported in 2013 after a years-long legal battle.
Because state and federal highway safety officials do not classify deaths by the perpetrator’s immigration stats, tabulating the deadly toll of unlicensed, illegal immigrant drivers has been a painstaking effort.  Rosenberg has pored through spreadsheets and studies, piecing together numbers that show his son’s death was neither necessary nor unique. Still, his estimate is just that, and it varies from the guesses of other groups.

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Brandon Mendoza, (l.), was killed by an unlicensed illegal immigrant, prompting his mother, Mary Ann Mendoza, (r.), to become an activist. (Courtesy: Mary Ann Mendoza)

“I’ve learned over time that many jurisdictions do not cite license status or immigration status when reporting these statistics, so if anything, the numbers are understated,” he said. “For example, San Francisco doesn’t report either criteria, so Drew’s death defaults to having been killed by a licensed driver who was a citizen.”
Such imprecise government bookkeeping masks a frightening and, critics say, preventable danger. The AAA Foundation for Traffic Safety, which obtains state-by-state data from the federal government Fatality Analysis Reporting System (FARS) database – found that 20 percent of fatal crashes involved an unlicensed driver. From 2010-2014, there was an average of 32,887 road deaths per year, which would mean 6,577 were caused by unlicensed drivers. Those drivers include citizens with suspended or revoked licenses, and those who never had licenses. But if half are illegal immigrants, it would be in line with Rosenberg’s estimates.
“Our archives are filled with stories of drunk-driving illegals killing U.S. citizens,” William Gheen, of the Americans for Legal Immigration Political Action Committee, told FoxNews.com. “It is our official estimate that more than 3,000 U.S citizens lose their lives each year due to the insufficient enforcement of our existing border and immigration law.”

Car Crash Deaths By State Per 100k Population | Credio

Brandon Mendoza was a 32-year-old, Mesa, Ariz., policeman in 2014 when an unlicensed, illegal immigrant driver drove drunk the wrong way on a freeway and killed him. Raul Silva-Corona had been convicted of criminal conspiracy in Colorado 20 years earlier, but never deported.
Mendoza’s mother believes the government could make the roads safer by at least deporting illegal immigrants who have been convicted of crimes.
“I don't believe it's reality to be able to get all of the illegals out of the country, but I do believe we need to get the criminal element out of here and secure the border so that they cannot continue to keep coming back,” Mary Ann Mendoza said.
Like Rosenberg, Mendoza has turned her grief into activism, starting a memorial foundation to continue her fallen son’s legacy and urging policymakers to take the issue more seriously.
“Until you have lost a loved one to an illegal criminal, you will never truly understand the other side of this issue,” she said.
The problem of unlicensed illegal immigrant drivers is most severe in the southwest, according to Peoria, Ariz., Police Detective Chris Boughey. Patrolling the streets of the Phoenix suburb, Boughey has encountered many incidents involving unlicensed, illegal immigrant drivers and considered it in a national perspective.
“With at least 11.4 million unauthorized immigrants in the United States, it can be surmised that a large population drive a vehicle on a regular basis,” Boughey said, adding that enforcing laws already on the books should mean deportation for illegal immigrants caught driving without valid licenses.
When government agencies do acknowledge the danger posed by unlicensed drivers, including illegal immigrants, they often use the information to further a pro-illegal immigrant agenda, say critics.
In the wake of a 2013 study by the California Department of Motor Vehicles that concluded that unlicensed drivers are almost three times as likely to cause a deadly car accident as a licensed driver, Gov. Jerry Brown signed legislation allowing illegal immigrants to obtain driver’s licenses. California, which was believed to have 2 million unlicensed drivers prior to passage of the law, is now one of a dozen states to allow the controversial practice.
“States that have worked with undocumented immigrants to enable them to get drivers licenses and insurance see a decrease in uninsured motorist claims,” said Janet Ruiz, of the Insurance Information Institute. “The availability of driver’s licenses and insurance promote safer driving and less accidents.”
Gregory Chen, director of advocacy at the American Immigration Lawyers Associated, agreed.
"The best way to ensure safety on our nation's roads is to make sure everyone who drives has passed a driver's exam, and has a license and insurance,” he said. “The last thing states and localities want is for their law enforcement and emergency teams to arrive at roadside accidents where drivers are uninsured and where injured persons arrive at hospitals unable to pay."
But Gheen and other critics say those who combat the problem of unlicensed drivers by awarding them licenses have it backward. A better solution, he said, is enforcing existing immigration law to the point that people are no longer encouraged to “enter and remain in the U.S. illegally.”
Rosenberg, who describes himself as a “lifelong liberal,” said the circumstances surrounding his son’s death have left him bitter at the group he calls the “amnesty crowd.” He also wants illegal immigrants caught driving without a license to be deported.
 “While I can sympathize with people who want to make their lives better, they can’t do it at the expense of others,” he said. “I am not angry at those who come here to try and better their life or their children’s, but it can’t be condoned or rewarded.”

HAPPY EASTER FROM LAW ENFORCEMENT

HAPPY EASTER FROM LAW ENFORCEMENT

Speeding enforcement crackdown in NC to target anyone going above posted limit

Posted 11:17 am, March 23, 2016, by Web Staff

• 
  

(WTVD)

RALEIGH, N.C. — How fast can you go on the highway without getting the attention of police? Anything under 10 miles per hour over the speed limit is okay, right?
Well, WTVD reported that the North Carolina Department of Transportation is ready to burst the bubble on the widely believed 9 mph cushion myth.
The governor’s highway safety program is ramping up what’s being called “Obey the Sign or Pay the Fine” speeding enforcement crackdown.
Apparently, there’s a belief out there that if the speed limit is 65, officers or troopers won’t pull you over if you’re doing 1 to 9 miles per hour over the limit – a so-called buffer zone.
The DOT says that’s not the case. Law enforcement says beginning Thursday, they’ll target and ticket anyone driving above the posted speed limit.

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.)

Driving While Talking CDL

www.kisslinglaw.com

Not many drivers know that while drivers of cars can use their phones while driving, truck drivers cannot.  Here is a great article by Shea Denning of the NC School of Government on the subject.

There is a ban on hand-held mobile phone use by drivers in North Carolina. And there’s a good chance you’ve never heard of it.
That’s because the ban only applies to drivers of commercial motor vehicles—not drivers of private passenger vehicles.
The federal government banned the use of hand-held mobile phones by the drivers of commercial motor vehicles in 2011. The next year, the North Carolina legislature codified the ban in G.S. 20-137.4A(a1). And while the federal rule applies only to commercial motor vehicles operated in interstate commerce, North Carolina’s administrative rules extend the prohibition to for-hire motor carriers, for-hire motor carrier vehicles, private motor carriers and private motor carrier vehicles operated entirely within North Carolina if the vehicle is: 

(1) a vehicle having a gross vehicle weight rating (GVWR), gross combination weight rating (GCWR), gross vehicle weight (GVW), gross combination weight (GCW) of 26,001 pounds or more, whichever is greater;
(2) designed or used to transport 16 or more passengers, including the driver; or
(3) used in transporting a hazardous material in a quantity requiring placarding pursuant to 49 C.F.R. Parts 170 through 185.

14B N.C.A.C. 07C .0101. Neither the federal nor the North Carolina rules barring hand-held mobile phone use apply to commercial motor vehicles operated by federal, state or local governments.
What exactly are drivers of CMVs prohibited from doing? Drivers of qualifying commercial motor vehicles may not “use a hand-held mobile telephone while driving.” 49 C.F.R. § 392.82. Driving is defined broadly as “operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays.” Driving does not include “operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.” An exception applies to allow the driver of a commercial motor vehicle to use a hand-held mobile telephone “when necessary to communicate with law enforcement officials or other emergency services.”
An earlier-enacted ban prohibits such drivers from texting while driving. 49 C.F.R. § 392.80.
A fact sheet from the Federal Motor Carrier Safety Administration (FMCSA) says it is easy to comply with the rules. It summarizes the rules as: No REACHING, No HOLDING, No DIALING, No TEXTING, No READING.
What about other drivers? All drivers in North Carolina are prohibited from driving on a street or public vehicular area while using a mobile telephone to: (1) manually enter multiple letters or text as a means of communicating with another person; or (2) read any electronic mail or text message transmitted to or stored within the device. G.S. 20-137.4A(a). This prohibition does not apply to the operator of a vehicle that is “lawfully parked or stopped.” Thus, it presumably is permissible to text and read emails and texts while temporarily stopped at a traffic light.
Drivers of private passenger vehicles who are 18 or older may lawfully hold mobile phones in their hands, dial numbers, and talk while driving in North Carolina.
Drivers who are under 18 are prohibited from operating a motor vehicle on a street or public vehicular area in North Carolina while using a mobile phone while the vehicle is in motion. G.S. 20-137.3(d). Exceptions apply to allow minors to use a mobile phone to communicate with a parent, legal guardian, spouse, or emergency personnel. 
Reason for the federal ban. The federal rule was adopted as part of the U.S. Transportation Department’s effort to end distracted driving. The Federal Motor Carrier Safety Administration (FMCSA) said its research showed that using a hand-held cell phone while driving required riskier steps than hand-free mobile phone use such as searching and reaching for the phone. According to the FMCSA, commercial drivers reaching for an object such as a cell phone are three times more likely to be involved in a crash or “other safety critical event.” Dialing a hand-held phone made it six times more likely that a commercial driver would be involved in such an event.
Could the hand-held ban be extended? A few years ago, the National Transportation Safety Board called for a complete ban on the use of cell phones while driving, citing an “epidemic” of distracted driving. Given the ubiquitous use of mobile phones by drivers, I’m doubtful that state legislators, who have the authority to order such a ban, have an appetite for such a sweeping prohibition. The ready availability of so much hands-free technology might, however, render broader application of the hands-free requirement more appealing.
North Carolina cities may not enact their own rules. The Town of Chapel Hill enacted an ordinance in 2012 prohibiting drivers from using a mobile telephone while operating a motor vehicle in motion on a street or public vehicular area within the town. The operator of a local towing company challenged the lawfulness of the ordinance on the basis that state law preempts municipal restrictions on mobile phone use while driving. The North Carolina Supreme Court agreed. In King v. Town of Chapel Hill, 367 N.C. 400, the court determined that the General Assembly’s enactment of various statutory provisions to reduce the dangers associated with mobile phone use while driving indicated its “’intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.’” Id. at 412 (citing G.S. 160A-174(b)(5)).