§ 20-16.2. Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.
§ 20‑16.2. Impliedconsent to chemical analysis; mandatory revocation of license in event ofrefusal; right of driver to request analysis.
(a) Basis for Officerto Require Chemical Analysis; Notification of Rights. Any person who drives avehicle on a highway or public vehicular area thereby gives consent to achemical analysis if charged with an implied‑consent offense. Any lawenforcement officer who has reasonable grounds to believe that the personcharged has committed the implied‑consent offense may obtain a chemicalanalysis of the person.
Before any type of chemicalanalysis is administered the person charged shall be taken before a chemicalanalyst authorized to administer a test of a person's breath or a lawenforcement officer who is authorized to administer chemical analysis of thebreath, who shall inform the person orally and also give the person a notice inwriting that:
(1) You have beencharged with an implied‑consent offense. Under the implied‑consentlaw, you can refuse any test, but your drivers license will be revoked for oneyear and could be revoked for a longer period of time under certaincircumstances, and an officer can compel you to be tested under other laws.
(2) Repealed by SessionLaws 2006‑253, s. 15, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(3) The test results, orthe fact of your refusal, will be admissible in evidence at trial.
(4) Your drivingprivilege will be revoked immediately for at least 30 days if you refuse anytest or the test result is 0.08 or more, 0.04 or more if you were driving acommercial vehicle, or 0.01 or more if you are under the age of 21.
(5) After you arereleased, you may seek your own test in addition to this test.
(6) You may call anattorney for advice and select a witness to view the testing proceduresremaining after the witness arrives, but the testing may not be delayed forthese purposes longer than 30 minutes from the time you are notified of theserights. You must take the test at the end of 30 minutes even if you have notcontacted an attorney or your witness has not arrived.
(a1) Meaning of Terms. Underthis section, an "implied‑consent offense" is an offenseinvolving impaired driving or an alcohol‑related offense made subject tothe procedures of this section. A person is "charged" with an offenseif the person is arrested for it or if criminal process for the offense hasbeen issued.
(b) Unconscious PersonMay Be Tested. If a law enforcement officer has reasonable grounds to believethat a person has committed an implied‑consent offense, and the person isunconscious or otherwise in a condition that makes the person incapable ofrefusal, the law enforcement officer may direct the taking of a blood sample ormay direct the administration of any other chemical analysis that may beeffectively performed. In this instance the notification of rights set out insubsection (a) and the request required by subsection (c) are not necessary.
(c) Request to Submitto Chemical Analysis. A law enforcement officer or chemical analyst shalldesignate the type of test or tests to be given and may request the personcharged to submit to the type of chemical analysis designated. If the personcharged willfully refuses to submit to that chemical analysis, none may begiven under the provisions of this section, but the refusal does not precludetesting under other applicable procedures of law.
(c1) Procedure forReporting Results and Refusal to Division. Whenever a person refuses tosubmit to a chemical analysis, a person has an alcohol concentration of 0.15 ormore, or a person's drivers license has an alcohol concentration restrictionand the results of the chemical analysis establish a violation of therestriction, the law enforcement officer and the chemical analyst shall withoutunnecessary delay go before an official authorized to administer oaths andexecute an affidavit(s) stating that:
(1) The person wascharged with an implied‑consent offense or had an alcohol concentrationrestriction on the drivers license;
(2) A law enforcementofficer had reasonable grounds to believe that the person had committed animplied‑consent offense or violated the alcohol concentration restrictionon the drivers license;
(3) Whether the implied‑consentoffense charged involved death or critical injury to another person, if theperson willfully refused to submit to chemical analysis;
(4) The person wasnotified of the rights in subsection (a); and
(5) The results of anytests given or that the person willfully refused to submit to a chemicalanalysis.
If the person's drivers licensehas an alcohol concentration restriction, pursuant to G.S. 20‑19(c3), andan officer has reasonable grounds to believe the person has violated aprovision of that restriction other than violation of the alcohol concentrationlevel, the officer and chemical analyst shall complete the applicable sectionsof the affidavit and indicate the restriction which was violated. The officershall immediately mail the affidavit(s) to the Division. If the officer is alsothe 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 ofRefusal; Right to Hearing before Division; Issues. Upon receipt of a properlyexecuted affidavit required by subsection (c1), the Division shallexpeditiously notify the person charged that the person's license to drive isrevoked for 12 months, effective on the tenth calendar day after the mailing ofthe revocation order unless, before the effective date of the order, the personrequests in writing a hearing before the Division. Except for the time referredto in G.S. 20‑16.5, if the person shows to the satisfaction of theDivision that his or her license was surrendered to the court, and remained inthe court's possession, then the Division shall credit the amount of time forwhich the license was in the possession of the court against the 12‑monthrevocation period required by this subsection. If the person properly requestsa hearing, the person retains his or her license, unless it is revoked undersome other provision of law, until the hearing is held, the person withdrawsthe request, or the person fails to appear at a scheduled hearing. The hearingofficer may subpoena any witnesses or documents that the hearing officer deemsnecessary. The person may request the hearing officer to subpoena the chargingofficer, the chemical analyst, or both to appear at the hearing if the personmakes the request in writing at least three days before the hearing. The personmay subpoena any other witness whom the person deems necessary, and theprovisions of G.S. 1A‑1, Rule 45, apply to the issuance and service ofall subpoenas issued under the authority of this section. The hearing officeris authorized to administer oaths to witnesses appearing at the hearing. Thehearing shall be conducted in the county where the charge was brought, andshall be limited to consideration of whether:
(1) The person wascharged with an implied‑consent offense or the driver had an alcoholconcentration restriction on the drivers license pursuant to G.S. 20‑19;
(2) A law enforcementofficer had reasonable grounds to believe that the person had committed animplied‑consent offense or violated the alcohol concentration restrictionon the drivers license;
(3) The implied‑consentoffense charged involved death or critical injury to another person, if thisallegation is in the affidavit;
(4) The person wasnotified of the person's rights as required by subsection (a); and
(5) The person willfullyrefused to submit to a chemical analysis.
If the Division finds that theconditions specified in this subsection are met, it shall order the revocationsustained. 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) isalleged in the affidavit but is not met, it shall order the revocationsustained if that is the only condition that is not met; in this instancesubsection (d1) does not apply to that revocation. If the revocation issustained, the person shall surrender his or her license immediately uponnotification by the Division.
(d1) Consequences ofRefusal in Case Involving Death or Critical Injury. If the refusal occurredin a case involving death or critical injury to another person, no limiteddriving privilege may be issued. The 12‑month revocation begins onlyafter all other periods of revocation have terminated unless the person'slicense 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 thissubsection begins at the time and in the manner specified in subsection (d) forrevocations under this section. However, the person's eligibility for a hearingto determine if the revocation under those sections should be rescinded ispostponed for one year from the date on which the person would otherwise havebeen eligible for the hearing. If the person's driver's license is againrevoked while the 12‑month revocation under this subsection is in effect,that revocation, whether imposed by a court or by the Division, may only takeeffect after the period of revocation under this subsection has terminated.
(e) Right to Hearing inSuperior Court. If the revocation for a willful refusal is sustained afterthe hearing, the person whose license has been revoked has the right to file apetition 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 therecord. The superior court review shall be limited to whether there issufficient evidence in the record to support the Commissioner's findings offact and whether the conclusions of law are supported by the findings of factand whether the Commissioner committed an error of law in revoking the license.
(e1) Limited DrivingPrivilege after Six Months in Certain Instances. A person whose driver'slicense has been revoked under this section may apply for and a judgeauthorized to do so by this subsection may issue a limited driving privilegeif:
(1) At the time of therefusal the person held either a valid drivers license or a license that hadbeen expired for less than one year;
(2) At the time of therefusal, the person had not within the preceding seven years been convicted ofan offense involving impaired driving;
(3) At the time of therefusal, the person had not in the preceding seven years willfully refused tosubmit to a chemical analysis under this section;
(4) The implied consentoffense charged did not involve death or critical injury to another person;
(5) The underlyingcharge for which the defendant was requested to submit to a chemical analysishas been finally disposed of:
a. Other than byconviction; or
b. By a conviction ofimpaired driving under G.S. 20‑138.1, at a punishment level authorizingissuance of a limited driving privilege under G.S. 20‑179.3(b), and thedefendant has complied with at least one of the mandatory conditions ofprobation listed for the punishment level under which the defendant wassentenced;
(6) Subsequent to therefusal the person has had no unresolved pending charges for or additionalconvictions of an offense involving impaired driving;
(7) The person's licensehas been revoked for at least six months for the refusal; and
(8) The person hasobtained a substance abuse assessment from a mental health facility andsuccessfully completed any recommended training or treatment program.
Except as modified in thissubsection, the provisions of G.S. 20‑179.3 relating to the procedure forapplication and conduct of the hearing and the restrictions required orauthorized to be included in the limited driving privilege apply toapplications under this subsection. If the case was finally disposed of in thedistrict court, the hearing shall be conducted in the district court districtas defined in G.S. 7A‑133 in which the refusal occurred by a districtcourt judge. If the case was finally disposed of in the superior court, thehearing shall be conducted in the superior court district or set of districtsas defined in G.S. 7A‑41.1 in which the refusal occurred by a superiorcourt judge. A limited driving privilege issued under this section authorizes aperson to drive if the person's license is revoked solely under this section orsolely under this section and G.S. 20‑17(2). If the person's license isrevoked for any other reason, the limited driving privilege is invalid.
(f) Notice to OtherStates as to Nonresidents. When it has been finally determined under theprocedures of this section that a nonresident's privilege to drive a motorvehicle in this State has been revoked, the Division shall give information inwriting of the action taken to the motor vehicle administrator of the state ofthe person's residence and of any state in which the person has a license.
(g) Repealed by SessionLaws 1973, c. 914.
(h) Repealed by SessionLaws 1979, c. 423, s. 2.
(i) Right to ChemicalAnalysis before Arrest or Charge. A person stopped or questioned by a lawenforcement officer who is investigating whether the person may have committedan implied consent offense may request the administration of a chemicalanalysis before any arrest or other charge is made for the offense. Upon thisrequest, the officer shall afford the person the opportunity to have a chemicalanalysis of his or her breath, if available, in accordance with the proceduresrequired by G.S. 20‑139.1(b). The request constitutes the person'sconsent to be transported by the law enforcement officer to the place where thechemical 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 testresults will be admissible in evidence and may be used against you in any impliedconsent offense that may arise;
(2) Your drivingprivilege will be revoked immediately for at least 30 days if the test resultis 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01or more if you are under the age of 21.
(3) That if you fail tocomply fully with the test procedures, the officer may charge you with anyoffense for which the officer has probable cause, and if you are charged withan implied consent offense, your refusal to submit to the testing required as aresult of that charge would result in revocation of your driving privilege. Theresults of the chemical analysis are admissible in evidence in any proceedingin 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.)