§ 20-16.5. Immediate civil license revocation for certain persons charged with implied-consent offenses.
§ 20‑16.5. Immediatecivil license revocation for certain persons charged with implied‑consentoffenses.
(a) Definitions. Asused in this section the following words and phrases have the followingmeanings:
(1) Law EnforcementOfficer. As described in G.S. 20‑16.2(a1).
(2) Clerk. As definedin G.S. 15A‑101(2).
(3) Judicial Official. As defined in G.S. 15A‑101(5).
(4) Revocation Report. A sworn statement by a law enforcement officer and a chemical analystcontaining facts indicating that the conditions of subsection (b) have beenmet, and whether the person has a pending offense for which the person'slicense had been or is revoked under this section. When one chemical analystanalyzes a person's blood and another chemical analyst informs a person of hisrights and responsibilities under G.S. 20‑16.2, the report must includethe statements of both analysts.
(5) Surrender of aDriver's License. The act of turning over to a court or a law‑enforcementofficer the person's most recent, valid driver's license or learner's permitissued by the Division or by a similar agency in another jurisdiction, or alimited driving privilege issued by a North Carolina court. A person who isvalidly licensed but who is unable to locate his license card may file an affidavitwith the clerk setting out facts that indicate that he is unable to locate hislicense card and that he is validly licensed; the filing of the affidavitconstitutes a surrender of the person's license.
(b) Revocations forPersons Who Refuse Chemical Analyses or Who Are Charged With Certain Implied‑ConsentOffenses. A person's driver's license is subject to revocation under thissection if:
(1) A law enforcementofficer has reasonable grounds to believe that the person has committed anoffense subject to the implied‑consent provisions of G.S. 20‑16.2;
(2) The person ischarged with that offense as provided in G.S. 20‑16.2(a);
(3) The law enforcementofficer and the chemical analyst comply with the procedures of G.S. 20‑16.2and G.S. 20‑139.1 in requiring the person's submission to or procuring achemical analysis; and
(4) The person:
a. Willfully refuses tosubmit to the chemical analysis;
b. Has an alcoholconcentration of 0.08 or more within a relevant time after the driving;
c. Has an alcohol concentrationof 0.04 or more at any relevant time after the driving of a commercial motorvehicle; or
d. Has any alcoholconcentration at any relevant time after the driving and the person is under 21years of age.
(b1) Precharge TestResults as Basis for Revocation. Notwithstanding the provisions of subsection(b), a person's driver's license is subject to revocation under this sectionif:
(1) The person requestsa precharge chemical analysis pursuant to G.S. 20‑16.2(i); and
(2) The person has:
a. An alcoholconcentration of 0.08 or more at any relevant time after driving;
b. An alcoholconcentration of 0.04 or more at any relevant time after driving a commercialmotor vehicle; or
c. Any alcoholconcentration at any relevant time after driving and the person is under 21years of age; and
(3) The person ischarged with an implied‑consent offense.
(c) Duty of LawEnforcement Officers and Chemical Analysts to Report to Judicial Officials. Ifa person's driver's license is subject to revocation under this section, thelaw enforcement officer and the chemical analyst must execute a revocationreport. If the person has refused to submit to a chemical analysis, a copy ofthe affidavit to be submitted to the Division under G.S. 20‑16.2(c) maybe substituted for the revocation report if it contains the informationrequired by this section. It is the specific duty of the law enforcementofficer to make sure that the report is expeditiously filed with a judicialofficial as required by this section.
(d) Which Judicial OfficialMust Receive Report. The judicial official with whom the revocation reportmust be filed is:
(1) The judicialofficial conducting the initial appearance on the underlying criminal chargeif:
a. No revocation reporthas previously been filed; and
b. At the time of theinitial appearance the results of the chemical analysis, if administered, orthe reports indicating a refusal, are available.
(2) A judicial officialconducting any other proceeding relating to the underlying criminal charge atwhich the person is present, if no report has previously been filed.
(3) The clerk ofsuperior court in the county in which the underlying criminal charge has beenbrought if subdivisions (1) and (2) are not applicable at the time the lawenforcement officer must file the report.
(e) Procedure if ReportFiled with Judicial Official When Person Is Present. If a properly executedrevocation report concerning a person is filed with a judicial official whenthe person is present before that official, the judicial official shall, aftercompleting any other proceedings involving the person, determine whether thereis probable cause to believe that each of the conditions of subsection (b) hasbeen met. If he determines that there is such probable cause, he shall enter anorder revoking the person's driver's license for the period required in thissubsection. The judicial official shall order the person to surrender hislicense and if necessary may order a law‑enforcement officer to seize thelicense. The judicial official shall give the person a copy of the revocationorder. In addition to setting it out in the order the judicial official shallpersonally inform the person of his right to a hearing as specified insubsection (g), and that his license remains revoked pending the hearing. Therevocation under this subsection begins at the time the revocation order isissued and continues until the person's license has been surrendered for theperiod specified in this subsection, and the person has paid the applicablecosts. The period of revocation is 30 days, if there are no pending offensesfor which the person's license had been or is revoked under this section. If atthe time of the current offense, the person has one or more pending offensesfor which his license had been or is revoked under this section, the revocationshall remain in effect until a final judgment, including all appeals, has beenentered for the current offense and for all pending offenses. In no event, maythe period of revocation under this subsection be less than 30 days. If withinfive working days of the effective date of the order, the person does notsurrender his license or demonstrate that he is not currently licensed, theclerk shall immediately issue a pick‑up order. The pick‑up ordershall be issued to a member of a local law‑enforcement agency if the lawenforcement officer was employed by the agency at the time of the charge andthe person resides in or is present in the agency's territorial jurisdiction.In all other cases, the pick‑up order shall be issued to an officer orinspector of the Division. A pick‑up order issued pursuant to thissection is to be served in accordance with G.S. 20‑29 as if the order hadbeen issued by the Division.
(f) Procedure ifReport Filed with Clerk of Court When Person Not Present. When a clerkreceives a properly executed report under subdivision (d)(3) and the personnamed in the revocation report is not present before the clerk, the clerk shalldetermine whether there is probable cause to believe that each of theconditions of subsection (b) has been met. For purposes of this subsection, aproperly executed report under subdivision (d)(3) may include a sworn statementby the law enforcement officer along with an affidavit received directly by theClerk from the chemical analyst. If he determines that there is such probablecause, he shall mail to the person a revocation order by first‑classmail. The order shall direct that the person on or before the effective date ofthe order either surrender his license to the clerk or appear before the clerkand demonstrate that he is not currently licensed, and the order shall informthe person of the time and effective date of the revocation and of itsduration, of his right to a hearing as specified in subsection (g), and thatthe revocation remains in effect pending the hearing. Revocation orders mailedunder this subsection become effective on the fourth day after the order isdeposited in the United States mail. If within five working days of theeffective date of the order, the person does not surrender his license to theclerk or appear before the clerk to demonstrate that he is not currentlylicensed, the clerk shall immediately issue a pick‑up order. The pick‑uporder shall be issued and served in the same manner as specified in subsection(e) for pick‑up orders issued pursuant to that subsection. A revocationunder this subsection begins at the date specified in the order and continuesuntil the person's license has been revoked for the period specified in this subsectionand the person has paid the applicable costs. If the person has no pendingoffenses for which his license had been or is revoked under this section, theperiod of revocation under this subsection is:
(1) Thirty days from thetime the person surrenders his license to the court, if the surrender occurswithin five working days of the effective date of the order; or
(2) Thirty days afterthe person appears before the clerk and demonstrates that he is not currentlylicensed to drive, if the appearance occurs within five working days of theeffective date of the revocation order; or
(3) Forty‑fivedays from the time:
a. The person's driverslicense is picked up by a law‑enforcement officer following service of apick‑up order; or
b. The person demonstratesto a law‑enforcement officer who has a pick‑up order for hislicense that he is not currently licensed; or
c. The person's driverslicense is surrendered to the court if the surrender occurs more than fiveworking days after the effective date of the revocation order; or
d. The person appearsbefore the clerk to demonstrate that he is not currently licensed, if heappears more than five working days after the effective date of the revocationorder.
If at the time of the currentoffense, the person has one or more pending offenses for which his license hadbeen or is revoked under this section, the revocation shall remain in effectuntil a final judgment, including all appeals, has been entered for the currentoffense and for all pending offenses. In no event may the period of revocationfor the current offense be less than the applicable period of revocation insubdivision (1), (2), or (3) of this subsection. When a pick‑up order isissued, it shall inform the person of his right to a hearing as specified insubsection (g), and that the revocation remains in effect pending the hearing.An officer serving a pick‑up order under this subsection shall return theorder to the court indicating the date it was served or that he was unable toserve the order. If the license was surrendered, the officer serving the ordershall deposit it with the clerk within three days of the surrender.
(g) Hearing beforeMagistrate or Judge if Person Contests Validity of Revocation. A person whoselicense is revoked under this section may request in writing a hearing tocontest the validity of the revocation. The request may be made at the time ofthe person's initial appearance, or within 10 days of the effective date of therevocation to the clerk or a magistrate designated by the clerk, and mayspecifically request that the hearing be conducted by a district court judge.The Administrative Office of the Courts must develop a hearing request form forany person requesting a hearing. Unless a district court judge is requested, thehearing must be conducted within the county by a magistrate assigned by thechief district court judge to conduct such hearings. If the person requeststhat a district court judge hold the hearing, the hearing must be conductedwithin the district court district as defined in G.S. 7A‑133 by adistrict court judge assigned to conduct such hearings. The revocation remainsin effect pending the hearing, but the hearing must be held within threeworking days following the request if the hearing is before a magistrate orwithin five working days if the hearing is before a district court judge. Therequest for the hearing must specify the grounds upon which the validity of therevocation is challenged and the hearing must be limited to the groundsspecified in the request. A witness may submit his evidence by affidavit unlesshe is subpoenaed to appear. Any person who appears and testifies is subject toquestioning by the judicial official conducting the hearing, and the judicialofficial may adjourn the hearing to seek additional evidence if he is notsatisfied with the accuracy or completeness of evidence. The person contestingthe validity of the revocation may, but is not required to, testify in his ownbehalf. Unless contested by the person requesting the hearing, the judicialofficial may accept as true any matter stated in the revocation report. If anyrelevant condition under subsection (b) is contested, the judicial officialmust find by the greater weight of the evidence that the condition was met in orderto sustain the revocation. At the conclusion of the hearing the judicialofficial must enter an order sustaining or rescinding the revocation. Thejudicial official's findings are without prejudice to the person contesting therevocation and to any other potential party as to any other proceedings, civilor criminal, that may involve facts bearing upon the conditions in subsection(b) considered by the judicial official. The decision of the judicial officialis final and may not be appealed in the General Court of Justice. If thehearing is not held and completed within three working days of the writtenrequest for a hearing before a magistrate or within five working days of thewritten request for a hearing before a district court judge, the judicial officialmust enter an order rescinding the revocation, unless the person contesting therevocation contributed to the delay in completing the hearing. If the personrequesting the hearing fails to appear at the hearing or any reschedulingthereof after having been properly notified, he forfeits his right to ahearing.
(h) Return of License. After the applicable period of revocation under this section, or if themagistrate or judge orders the revocation rescinded, the person whose licensewas revoked may apply to the clerk for return of his surrendered license.Unless the clerk finds that the person is not eligible to use the surrenderedlicense, he must return it if:
(1) The applicableperiod of revocation has passed and the person has tendered payment for thecosts under subsection (j); or
(2) The magistrate orjudge has ordered the revocation rescinded.
If the license has expired, hemay return it to the person with a caution that it is no longer valid.Otherwise, if the person is not eligible to use the license and the license wasissued by the Division or in another state, the clerk must mail it to theDivision. If the person has surrendered his copy of a limited driving privilegeand he is no longer eligible to use it, the clerk must make a record that hehas withheld the limited driving privilege and forward that record to the clerkin the county in which the limited driving privilege was issued for filing inthe case file. If the person's license is revoked under this section and underanother section of this Chapter, the clerk must surrender the license to theDivision if the revocation under this section can terminate before the otherrevocation; in such cases, the costs required by subsection (j) must still bepaid before the revocation under this section is terminated.
(i) Effect ofRevocations. A revocation under this section revokes a person's privilege todrive in North Carolina whatever the source of his authorization to drive.Revocations under this section are independent of and run concurrently with anyother revocations. No court imposing a period of revocation followingconviction of an offense involving impaired driving may give credit for anyperiod of revocation imposed under this section. A person whose license isrevoked pursuant to this section is not eligible to receive a limited drivingprivilege except as specifically authorized by G.S. 20‑16.5(p).
(j) Costs. Unlessthe magistrate or judge orders the revocation rescinded, a person whose licenseis revoked under this section must pay a fee of one hundred dollars ($100.00)as costs for the action before the person's license may be returned undersubsection (h) of this section. Fifty percent (50%) of the costs collectedunder this section shall be credited to the General Fund. Twenty‑fivepercent (25%) of the costs collected under this section shall be used to fund astatewide chemical alcohol testing program administered by the Injury ControlSection of the Department of Health and Human Services. The remaining twenty‑fivepercent (25%) of the costs collected under this section shall be remitted tothe county for the sole purpose of reimbursing the county for jail expensesincurred due to enforcement of the impaired driving laws.
(k) Report to Division. Except as provided below, the clerk shall mail a report to the Division:
(1) If the license isrevoked indefinitely, within 10 working days of the revocation of the license;and
(2) In all cases, within10 working days of the return of a license under this section or of thetermination of a revocation of the driving privilege of a person not currentlylicensed.
The report shall identify theperson whose license has been revoked, specify the date on which his licensewas revoked, and indicate whether the license has been returned. The reportmust also provide, if applicable, whether the license is revoked indefinitely.No report need be made to the Division, however, if there was a surrender ofthe driver's license issued by the Division, a 30‑day minimum revocationwas imposed, and the license was properly returned to the person undersubsection (h) within five working days after the 30‑day period hadelapsed.
(l) Restoration Feefor Unlicensed Persons. If a person whose license is revoked under thissection has no valid license, he must pay the restoration fee required by G.S.20‑7 before he may apply for a license from the Division.
(m) Modification ofRevocation Order. Any judicial official presiding over a proceeding underthis section may issue a modified order if he determines that an inappropriateorder has been issued.
(n) Exception forRevoked Licenses. Notwithstanding any other provision of this section, if thejudicial official required to issue a revocation order under this sectiondetermines that the person whose license is subject to revocation undersubsection (b):
(1) Has a currentlyrevoked driver's license;
(2) Has no limiteddriving privilege; and
(3) Will not becomeeligible for restoration of his license or for a limited driving privilegeduring the period of revocation required by this section,
the judicial official need notissue a revocation order under this section. In this event the judicialofficial must file in the records of the civil proceeding a copy of anydocumentary evidence and set out in writing all other evidence on which herelies in making his determination.
(o) Designation ofProceedings. Proceedings under this section are civil actions, and must beidentified by the caption "In the Matter of ________" and filed asdirected by the Administrative Office of the Courts.
(p) Limited DrivingPrivilege. A person whose drivers license has been revoked for a specifiedperiod of 30 or 45 days under this section may apply for a limited drivingprivilege if:
(1) At the time of thealleged offense the person held either a valid drivers license or a licensethat had been expired for less than one year;
(2) Does not have anunresolved pending charge involving impaired driving except the charge forwhich the license is currently revoked under this section or additionalconvictions of an offense involving impaired driving since being charged forthe violation for which the license is currently revoked under this section;
(3) The person's licensehas been revoked for at least 10 days if the revocation is for 30 days or 30days if the revocation is for 45 days; and
(4) The person hasobtained a substance abuse assessment from a mental health facility andregisters for and agrees to participate in any recommended training ortreatment program.
A person whose license hasbeen indefinitely revoked under this section may, after completion of 30 daysunder subsection (e) or the applicable period of time under subdivision (1),(2), or (3) of subsection (f), apply for a limited driving privilege. In thecase of an indefinite revocation, a judge of the division in which the currentoffense is pending may issue the limited driving privilege only if theprivilege is necessary to overcome undue hardship and the person meets theeligibility requirements of G.S. 20‑179.3, except that the requirementsin G.S. 20‑179.3(b)(1)c. and G.S. 20‑179.3(e) shall not apply.Except as modified in this subsection, the provisions of G.S. 20‑179.3relating to the procedure for application and conduct of the hearing and therestrictions required or authorized to be included in the limited drivingprivilege apply to applications under this subsection. Any district court judgeauthorized to hold court in the judicial district is authorized to issue such alimited driving privilege. A limited driving privilege issued under thissection authorizes a person to drive if the person's license is revoked solelyunder this section. If the person's license is revoked for any other reason,the limited driving privilege is invalid. (1983, c. 435, s. 14; 1983 (Reg. Sess., 1984), c.1101, ss. 11‑17; 1985, c. 690, ss. 1, 2; 1987 (Reg. Sess., 1988), c.1037, s. 80, c. 1112; 1989, c. 771, ss. 15, 16, 18; 1991, c. 689, s. 233.1(a);1993, c. 285, ss. 5, 6; 1997‑379, ss. 3.4‑3.8; 1997‑443, s.11A.9; 1997‑486, ss. 2‑6; 1998‑182, ss. 29, 30; 1999‑406,s. 13; 2000‑140, s. 103A; 2000‑155, s. 15; 2001‑487, ss. 6,7; 2003‑104, s. 1; 2007‑323, s. 30.10(e); 2007‑493, s. 17.)