GENERALASSEMBLY OF NORTH CAROLINA
SENATE BILL 1069
Short Title: DWI Task Force Recommendations.
March 24, 2005
A BILL TO BE ENTITLED
AN ACTto amend various statutes related to driving while impaired, as recommended bythe Governor's task force on driving while impaired.
The General Assembly of North Carolina enacts:
PART i. iNTEGRATED DATASYSTEM to provide essential information about dwi offenses statewide
SECTION 1. G.S.7A-109.2 reads asrewritten:
(a) Each clerk ofsuperior court shall ensure that all records of dispositions in criminal cases,including those records filed electronically, contain all the essentialinformation about the case, including the
identity the name ofthe presiding judge and the attorneys representing the State and the defendant.
(b) In additionto the information required by subsection (a) for all offenses involvingimpaired driving as defined by G.S.20-4.01, all charges of driving whilelicense revoked for an impaired driving license revocation as defined byG.S.20-28.2, and any other violation of the motor vehicle code involvingthe operation of a vehicle and the possession, consumption, use, ortransportation of alcoholic beverages, the clerk shall include in theelectronic records the following information:
(1) The reasonsfor any voluntary dismissal or reduction of charges as specified inG.S.20-138.4;
(2) The reasonsfor any pretrial dismissal by the court;
(3) The reasonsfor any continuances granted in the case;
(4) The alcoholconcentration reported by the charging officer or chemical analyst, if any;
(5) The reasonsfor any suppression of evidence;
(6) The reasonsfor dismissal of charges at trial;
(7) Thepunishment imposed, including community service, jail, substance abuseassessment and education or treatment, amount of any fine, costs, and feesimposed;
(8) The amountand reason for waiving or reduction of any fee or fine;
(9) The time orother conditions given to pay any fine, cost, or fees;
(10) After the initialdisposition, the modification or reduction to any sentence, fee owed, fine, orrestitution and the name and agency of the person requesting the modification;
(11) The date of compliancewith court-ordered community service, jail sentence, substance abuseassessment, substance abuse education or treatment, and payment of fines,costs, and fees; and
(12) Subsequent courtproceedings to enforce compliance with punishment, assessment, treatment,education, or payment of fines, costs, and fees.
SECTION 2. Chapter 7A of the General Statutesis amended by adding a new section to read:
"§ 7A-346.3.Impaired driving integrated data system report.
The information compiled by G.S.7A-109.2 shall bemaintained in an Administrative Office of the Courts database. By March 1, theAdministrative Office of the Courts shall provide an annual report of theprevious calendar year to the Joint Legislative Commission on GovernmentalOperation showing types of dispositions for the entire State, by county, byjudge, by prosecutor, and by defense attorney. This report shall also includethe amount of fines, costs, and fees ordered at the disposition of the charge,the amount of any subsequent reduction, amount collected and amount stillowed,, and compliance with sanctions of community service, jail, substanceabuse assessment, treatment, and education. The Administrative Office of theCourts shall facilitate public access to the information collected under thissection by posting this information on the court's Internet page in a manneraccessible to the public and shall make reports of any information collectedunder this section available to the public upon request and without charge.
part ii. preventnoncompliant permit holders from continuing irresponsible alcohol servicepractices by switching permits to another name
SECTION 3. G.S.18B-900 reads asrewritten:
"§ 18B-900.Qualifications for permit.
(a) Requirements. - To beeligible to receive and to hold an ABC permit, a person shall:
(1) Be at least 21 yearsold, unless the person is a manager of a business selling only malt beveragesand unfortified wine, in which case the person shall be at least 19 years old;
(2) Be a resident of NorthCarolina unless:
a. He is anofficer, director or stockholder of a corporate applicant or permittee and isnot a manager or otherwise responsible for the day-to-day operation of thebusiness; or
b. He hasexecuted a power of attorney designating a qualified resident of this State toserve as attorney in fact for the purposes of receiving service of process andmanaging the business for which permits are sought; or
c. He isapplying for a nonresident malt beverage vendor permit, a nonresident winevendor permit, or a vendor representative permit;
(3) Not have been convictedof a felony within three years, and, if convicted of a felony before then,shall have had his citizenship restored;
(4) Not have beenconvicted of an alcoholic beverage offense within two years;
(5) Not have beenconvicted of a misdemeanor controlled substance offense within two years; and
(6) Not have had analcoholic beverage permit revoked within three years, except where therevocation was based solely on a permittee's failure to pay the annualregistration and inspection fee required in G.S.18B-903(b1).
(7) Not have, whether asan individual or as an officer, director, shareholder, or manager of acorporate permittee, an unsatisfied outstanding final judgment that was enteredagainst him in an action under Article 1A of this Chapter.
To avoid undue hardship, however, the Commission may decline totake action under G.S.18B-104 against a permittee who is in violation ofsubdivisions (3), (4), or (5).
(b) Definition of Conviction.- A person has been "convicted" for the purposes of subsection (a)when he has been found guilty, or has entered a plea of guilty or nolocontendere, and judgment has been entered against him. A felony conviction inanother jurisdiction shall disqualify a person from being eligible to receiveor hold an ABC permit if his conduct would also constitute a felony in NorthCarolina. A conviction of an alcoholic beverage offense or misdemeanor drugoffense in another jurisdiction shall disqualify a person from being eligibleto receive or hold an ABC permit if his conduct would constitute an offense inNorth Carolina, unless the Commission determines that under North Carolinaprocedure judgment would not have been entered under the same circumstances. Revocationof a permit in another jurisdiction shall disqualify a person if his conductwould be grounds for revocation in North Carolina.
(c) Who Must Qualify;Exceptions. - For an ABC permit to be issued to and held for a business, eachof the following persons associated with that business must qualify undersubsection (a):
(1) The owner of a soleproprietorship;
(2) Each member of a firm,association or general partnership;
(2a) Each general partner in a limitedpartnership;
(2b) Each manager and any member witha twenty-five percent (25%) or greater interest in a limited liability company;
(3) Each officer, directorand owner of twenty-five percent (25%) or more of the stock of a corporationexcept that the requirement of subdivision (a)(1) does not apply to such anofficer, director, or stockholder unless he is a manager or is otherwiseresponsible for the day-to-day operation of the business;
(4) The manager of anestablishment operated by a corporation other than an establishment with onlyoff-premises malt beverage, off-premises unfortified wine, or off-premisesfortified wine permits;
(5) Any manager who hasbeen empowered as attorney-in-fact for a nonresident individual or partnership.
(d) Manager of Off-PremisesEstablishment. - Although he need not otherwise meet the requirements of thissection, the manager of an establishment operated by a corporation and holdingoff-premises permits for malt beverages, unfortified wine, or fortified wineshall be at least 19 years old and shall meet the requirements of subdivisions(3), (4), (5), and (6) of subsection (a).
(e) Convention Centers. -With the approval of the Commission, the manager of a convention center maycontract with another person to provide food and beverages at conventions andbanquets at the convention center, and that person may engage in the activitiesauthorized by the convention center's permit, under conditions set by theCommission. The person with whom the convention center contracts must meet thequalifications of this section.
(f) Definitionof Manager. - For purposes of this section, a manager is someone who has director indirect possession of the power to direct or cause the direction of themanagement and policies of a permitted establishment."
part iii. standardizecriteria for law enforcement checkpoints
SECTION 4. G.S.20-16.3A reads asrewritten:
Impaired driving checks. Checking Stations and Roadblocks.
(a) A law-enforcementagency may
make impaired driving checks of drivers of vehicles on highwaysand public vehicular areas if conduct checking stations to determinecompliance with the provisions of this Chapter. If the agency isconducting a checking station for the purposes of determining compliance withthis Chapter, it must:
1) Develops asystematic plan in advance that takes into account the likelihood of detectingimpaired drivers, traffic conditions, number of vehicles to be stopped, and theconvenience of the motoring public.
(2) Designates in advancethe pattern both for stopping vehicles and for requesting drivers that arestopped
to submit to alcohol screening tests to produce driverslicense, registration, and/or insurance information. The plan patternneed not be in writing and may include contingency provisions for alteringeither pattern if actual traffic conditions are different from thoseanticipated, but no individual officer may be given discretion as to whichvehicle is stopped or, of the vehicles stopped, which driver is requested tosubmit to an alcohol screening test to produce drivers license,registration or insurance information.
Marks the area inwhich checks are conducted to advise Advise the public that anauthorized impaired driving check checking station is being made operated by having, at a minimum, one law enforcement vehicle withits blue light in operation during the conducting of the checking station
(b) An officerwho determines there is a reasonable suspicion that the driver has violated aprovision of this Chapter or any other provision of law may detain the driverto further investigate in accordance with law. The operator of any vehiclestopped at a checking station established under this subsection may berequested to submit to an alcohol screening test under G.S.20-16.3 ifduring the course of the stop the officer determines the driver had previouslyconsumed alcohol or has an open container of alcoholic beverage in the vehicle.The officer so requesting shall consider the results of any alcohol screeningtest or the driver's refusal in determining if there is reasonable suspicion toinvestigate further.
(c) Otherroadblocks. Law enforcement agencies may conduct any type of checking stationor roadblock as long as it is established and operated in accordance with theprovision of the United States Constitution and the Constitution of NorthCarolina. No court shall suppress any evidence or dismiss any case unless thecourt specifies in writing that there was a substantial and willful violationof the provisions of this section and that such violation was not made in goodfaith and such violation amounts to a violation of the United StatesConstitution or the Constitution of North Carolina.
This section does not prevent an officer from using theauthority of G.S.20-16.3 to request a screening test if, in the course ofdealing with a driver under the authority of this section, he developsgrounds for requesting such a test under G.S.20-16.3. Alcohol screeningtests and the results from them are subject to the provisions of subsections(b), (c), and (d) of G.S.20-16.3. This section does not limit theauthority of a law-enforcement officer or agency to conduct a license checkindependently or in conjunction with the impaired driving check, to administerpsychophysical tests to screen for impairment, or to utilize roadblocks orother types of vehicle checks or checkpoints that are consistent with the lawsof this State and the Constitution of North Carolina and of the United States."
part iv. admit alco-sensor results at trial
SECTION 5. G.S.20-16.3 reads asrewritten:
"§ 20-16.3.Alcohol screening tests required of certain drivers; approval of test devicesand manner of use by
Commission for Health Services; Department ofHealth and Human Services; use of test results or refusal.
(a) When AlcoholScreening Test May Be Required; Not an Arrest. - A law-enforcement officer mayrequire the driver of a vehicle to submit to an alcohol screening test within arelevant time after the driving if the officer has:
(1) Reasonable grounds tobelieve that the driver has consumed alcohol and has:
a. Committed amoving traffic violation; or
b. Beeninvolved in an accident or collision; or
(2) An articulable andreasonable suspicion that the driver has committed an implied-consent offenseunder G.S.20-16.2, and the driver has been lawfully stopped for adriver's license check or otherwise lawfully stopped or lawfully encountered bythe officer in the course of the performance of the officer's duties.
Requiring a driver to submit to an alcohol screening test inaccordance with this section does not in itself constitute an arrest.
(b) Approval of ScreeningDevices and Manner of Use. - The
Commission for Health ServicesDepartmentof Health and Human Services is directed to examine and approve devicessuitable for use by law-enforcement officers in making on-the-scene tests ofdrivers for alcohol concentration. For each alcohol screening device or classof devices approved, the Commission Department must adoptregulations governing the manner of use of the device. For any alcoholscreening device that tests the breath of a driver, the Commission Departmentis directed to specify in its regulations the shortest feasible minimumwaiting period that does not produce an unacceptably high number of falsepositive test results.
(c) Tests Must Be Madewith Approved Devices and in Approved Manner. - No screening test for alcoholconcentration is a valid one under this section unless the device used isone approved by the
Commission for Health Services Department andthe screening test is conducted in accordance with the applicable regulationsof the Commission Department as to the manner of its use.
(d) Use of Screening TestResults or Refusal by Officer. - The results of an alcohol screening test or adriver's refusal to submit may be used by a law-enforcement officer, a court,or an administrative agency in determining if there are reasonable grounds forbelieving that the driver has committed an implied-consent offense under
G.S.20-16.2.G.S.20-16.2, and are admissible in a court or administrative proceeding to provethat the driver had consumed alcohol and that previously consumed alcohol waspresent in the driver's body, but not to prove a particular alcoholconcentration. Negative or low results on the alcohol screening test may beused in factually appropriate cases by the officer, a court, or anadministrative agency in determining whether a person's alleged impairment iscaused by an impairing substance other than alcohol. Except as provided inthis subsection, the results of an alcohol screening test may not be admittedin evidence in any court or administrative proceeding."
part v. clarify per seoffenses
SECTION 6. G.S.20-138.1(a) reads asrewritten:
"(a) Offense. - A personcommits the offense of impaired driving if he drives any vehicle upon anyhighway, any street, or any public vehicular area within this State:
(1) While under theinfluence of an impairing substance; or
(2) After having consumedsufficient alcohol
that he has,that, at any relevant time afterthe driving, an alcohol concentration of 0.08 or more.driving, theperson submits to a chemical analysis, and the result is 0.08 or more."
SECTION 7. G.S.20-138.2(a) reads asrewritten:
"(a) Offense. - A personcommits the offense of impaired driving in a commercial motor vehicle if hedrives a commercial motor vehicle upon any highway, any street, or any publicvehicular area within the State:
(1) While under theinfluence of an impairing substance; or
(2) After having consumedsufficient alcohol
that he has,that, at any relevant time afterthe driving an alcohol concentration of 0.04 or more.driving, theperson submits to a chemical analysis, and the result is 0.04 or more."
part vi. increase/createpenalty for dwi death/injury
SECTION 8. G.S.20-141.4 reads asrewritten:
"§ 20-141.4.Felony and misdemeanor death by vehicle.
(a) Repealed by SessionLaws 1983, c. 435, s. 27.
(a1) Felony Death by Vehicle. - Aperson commits the offense of felony death by vehicle if he unintentionallycauses the death of another person while engaged in the offense of impaireddriving under G.S.20-138.1 or G.S.20-138.2 and commission of thatoffense is the proximate cause of the death.
(a2) Misdemeanor Death by Vehicle. -A person commits the offense of misdemeanor death by vehicle if heunintentionally causes the death of another person while engaged in theviolation of any State law or local ordinance applying to the operation or useof a vehicle or to the regulation of traffic, other than impaired driving underG.S.20-138.1, and commission of that violation is the proximate cause ofthe death.
(a3) Felony Serious Injuryby Vehicle. - A person commits the offense of felony serious injury by vehicleif he unintentionally causes serious injury to another person while engaged inthe offense of impaired driving under G.S.20-138.1 or G.S.20-138.2,and commission of that offense is the proximate cause of the serious injury.
(a4) Aggravated FelonyDeath by Vehicle. - A person commits the offense of aggravated felony death byvehicle if he unintentionally causes the death of another person while engagedin the offense of impaired driving under G.S.20-138.1 or G.S.138.2,the commission of that offense is the proximate cause of the death, and theperson has a been convicted of an offense involving impaired driving as definedin G.S.20-4.01(24a) within seven years of the date of this offense.
(a5) Aggravated FelonySerious Injury by Vehicle. - A person commits the offense of aggravated felonyserious injury by vehicle if he unintentionally causes serious injury toanother person while engaged in the offense of impaired driving underG.S.20-138.1 or G.S.20-138.2, the commission of that offense is theproximate cause of the death, and the person has been convicted of an offenseinvolving impaired driving as defined in G.S.20-4.01(24a) within sevenyears of the date of this offense.
(b) Punishments. - Felonydeath by vehicle is a Class G felony. Aggravated felony death by vehicle isa Class D felony. Felony serious injury by vehicle is a Class H felony.Aggravated felony serious injury by vehicle is a Class E felony. Misdemeanordeath by vehicle is a Class 1 misdemeanor.
(c) No DoubleProsecutions. - No person who has been placed in jeopardy upon a charge ofdeath by vehicle may be prosecuted for the offense of manslaughter arising outof the same death; and no person who has been placed in jeopardy upon a chargeof manslaughter may be prosecuted for death by vehicle arising out of the samedeath."
part vii. improved access to medical records inimpaired driving cases
SECTION 9. Chapter 90 of the GeneralStatutes is amended by adding a new section to read:
"§ 90-21.20B.Access to medical information for law enforcement purposes.
(a) Notwithstandingany other provision of law, if a person is involved in a vehicle crash:
(1) Any healthcare provider who is providing medical treatment to the person shall, uponrequest, disclose to any law enforcement officer investigating the crash thefollowing information about the person: name, current location, and whether theperson appears to be impaired by alcohol, drugs, or another substance.
(2) Lawenforcement officers shall be provided access to visit and interview the personupon request, except when the health care provider requests temporary privacyfor medical reasons.
(3) A healthcare provider shall disclose a certified copy of all identifiable healthinformation related to that person as specified in a search warrant or an orderissued by a judicial official.
(b) Aprosecutor or law enforcement officer receiving identifiable health informationunder this section shall not disclose this information to others prior to trialexcept as necessary to the investigation or otherwise allowed by law.
(c) A certifiedcopy of identifiable health information, if relevant, shall be admissible inany hearing or trial without further authentication.
(d) As used inthis section, 'health care provider' has the same meaning as in G.S.90-21.11."
part viii. dwi training for judgesSECTION 10.Chapter 7A of the General Statutes is amended by adding a new section to read:
"§ 7A-10.2.Judicial education requirements.
All justices and judges of the General Court of Justiceshall be required to attend continuing judicial education as prescribed by theSupreme Court. At a minimum, every justice and judges shall be required toobtain two hours every two years of continuing judicial education regardingdriving while impaired offenses and related issues."
part ix. DRIVING WHILELICENSE REVOKED FOR FAILURE TO APPEAR IN DRIVING WHILE IMPAIRED
SECTION 11. G.S.20-48 reads asrewritten:
"§ 20-48.Giving of notice.
(a) Whenever the Divisionis authorized or required to give any notice under this Chapter or other lawregulating the operation of vehicles, unless a different method of giving suchnotice is otherwise expressly prescribed, such notice shall be given either bypersonal delivery thereof to the person to be so notified or by deposit in theUnited States mail of such notice in an envelope with postage prepaid,addressed to such person at his address as shown by the records of theDivision. The giving of notice by mail is complete upon the expiration of fourdays after such deposit of such notice. Proof of the giving of notice in eithersuch manner may be made by
the certificate of any officer or employee of theDivision or affidavit of any person over 18 years of age, naming the person towhom such notice was given and specifying the time, place, and manner of the givingthereof. a notation in the records of the Division that a notice wassent to a particular address and the purpose of the notice. A certified copy ofthe Division's records may be sent by the Police Information Network,facsimile, or other electronic means. A copy of the Division's records sentunder the authority of this section is admissible in evidence in any court oradministrative agency and is sufficient evidence to discharge the burden of theperson presenting the record that notice was sent to the person named in therecord, at the address indicated in the record, and for the purpose indicatedin the record. There is no requirement that the actual notice or letter beproduced.
(b) Notwithstanding anyother provision of this Chapter at any time notice is now required byregistered mail with return receipt requested, certified mail with returnreceipt requested may be used in lieu thereof and shall constitute valid noticeto the same extent and degree as notice by registered mail with return receiptrequested.
(c) The Commissionershall appoint such agents of the Division as may be needed to serve revocationnotices required by this Chapter. The fee for service of a notice shall befifty dollars ($50.00)."
SECTION 12. G.S.20-28 reads asrewritten:
"§ 20-28.Unlawful to drive while license
revoked revoked, after notification, orwhile disqualified.
(a) Driving While LicenseRevoked. - Except as provided in subsection (a1) of this section, any personwhose drivers license has been revoked who drives any motor vehicle upon thehighways of the State while the license is revoked is guilty of a Class 1misdemeanor. Upon conviction, the person's license shall be revoked for anadditional period of one year for the first offense, two years for the secondoffense, and permanently for a third or subsequent offense.
The restoree of a revoked drivers license who operates amotor vehicle upon the highways of the State without maintaining financialresponsibility as provided by law shall be punished as for driving without alicense.
(a1) Driving Without ReclaimingLicense. - A person convicted under subsection (a) shall be punished as if theperson had been convicted of driving without a license under G.S.20-35 ifthe person demonstrates to the court that either subdivisions (1) and (2), orsubdivision (3) of this subsection is true:
(1) At the time of theoffense, the person's license was revoked solely under G.S.20-16.5; and
(2)a. The offense occurred morethan 45 days after the effective date of a revocation order issued underG.S.20-16.5(f) and the period of revocation was 45 days as provided undersubdivision (3) of that subsection; or
b. The offenseoccurred more than 30 days after the effective date of the revocation orderissued under any other provision of G.S.20-16.5; or
(3) At the time of theoffense the person had met the requirements of G.S.50-13.12, orG.S.110-142.2 and was eligible for reinstatement of the person's driverslicense privilege as provided therein.
In addition, a person punished under this subsection shall betreated for drivers license and insurance rating purposes as if the person hadbeen convicted of driving without a license under G.S.20-35, and theconviction report sent to the Division must indicate that the person is to beso treated.
(a2) Driving AfterNotification or Failure to Appear. - A person who drives upon a highway whilehis license is revoked for an impaired driving license revocation after theDivision has sent notification in accordance with G.S.20-48 or who failsto appear for two years from the date of the charge after being charged with animplied consent offense shall be guilty of a Class 1 misdemeanor. Uponconviction, the person's drivers license shall be revoked for an additionalperiod of one year for the first offense, two years for the second offense, andpermanently for a third or subsequent offense. The restoree of a revokeddrivers license who operates a motor vehicle upon the highways of the Statewithout maintaining financial responsibility as provided by law shall bepunished as for driving without a license.
(b) Repealed by SessionLaws 1993 (Reg. Sess., 1994), c. 761, s. 3.
(c) When Person May Applyfor License. - A person whose license has been revoked under subsection (a)or (a1) of this section for one year may apply for a license after 90 days.A person whose license has been revoked under subsection (a2) of thissection for one year may apply for a license after one year. A person whoselicense has been revoked under this section for two years may apply for alicense after 12 months. A person whose license has been revoked under thissection permanently may apply for a license after three years. Upon thefiling of an application the Division may, with or without a hearing, issue anew license upon satisfactory proof that the former licensee has not beenconvicted of a moving violation under this Chapter or the laws of anotherstate, a violation of any provision of the alcoholic beverage laws of thisState or another state, or a violation of any provisions of the drug laws ofthis State or another state when any of these violations occurred during therevocation period. The Division may impose any restrictions or conditions onthe new license that the Division considers appropriate for the balance of therevocation period. When the revocation period is permanent, the restrictionsand conditions imposed by the Division may not exceed three years. If theperson was revoked pursuant to subsection (a1) of this section and the persondrove while his license was revoked for an impaired driving revocation, or therevocation was for violating subsection (a2) of this section and the revocationwas for more than one year, the Division may only conditionally restore thelicense in accordance with this subsection and shall require at a minimum as acondition of restoration that the driver obtain a substance abuse assessmentprior to issuance of a license and show proof of financial responsibility. Ifthe substance abuse assessment recommends education or treatment, the personmust complete the education or treatment within the time limits specified. Ifthe assessment determines that the person abuses alcohol, then the Divisionshall require the person to install and use an ignition interlock on anyvehicles that are to be driven. If the person violates any condition of therestoration or is convicted of any moving offense in this or another state orthe alcoholic beverage or control substance laws of this or any other state,the Division shall cancel the conditionally restored license and impose theremaining revocation period. The Division shall also cancel the registration onany vehicles and shall require the driver to surrender all current registrationplates and cards.
(d) Driving WhileDisqualified. - A person who was convicted of a violation that disqualified theperson and required the person's drivers license to be revoked who drives amotor vehicle during the revocation period is punishable as provided in theother subsections of this section. A person who has been disqualified whodrives a commercial motor vehicle during the disqualification period is guiltyof a Class 1 misdemeanor and is disqualified for an additional period asfollows:
(1) For a first offense ofdriving while disqualified, a person is disqualified for a period equal to theperiod for which the person was disqualified when the offense occurred.
(2) For a second offenseof driving while disqualified, a person is disqualified for a period equal totwo times the period for which the person was disqualified when the offenseoccurred.
(3) For a third offense ofdriving while disqualified, a person is disqualified for life.
The Division may reduce a disqualification for life underthis subsection to 10 years in accordance with the guidelines adopted underG.S.20-17.4(b). A person who drives a commercial motor vehicle while theperson is disqualified and the person's drivers license is revoked ispunishable for both driving while the person's license was revoked and drivingwhile disqualified."
part x. modify sentencingstatutes to comply with blakely v. washington
SECTION 13. G.S.20-179(a) reads asrewritten:
"(a) Sentencing HearingRequired. - After a conviction for impaired driving under G.S.20-138.1,G.S.20-138.2, a second or subsequent conviction under G.S.20-138.2A,or a second or subsequent conviction under G.S.20-138.2B, or when anyof those offenses are remanded back to district court after an appeal tosuperior court, the judge must hold a sentencing hearing to determinewhether there are aggravating or mitigating factors that affect the sentence tobe imposed. Before the hearing the prosecutor must make all feasible efforts tosecure the defendant's full record of traffic convictions, and must present tothe judge that record for consideration in the hearing. Upon request of thedefendant, the prosecutor must furnish the defendant or his attorney a copy ofthe defendant's record of traffic convictions at a reasonable time prior to theintroduction of the record into evidence. In addition, the prosecutor mustpresent all other appropriate grossly aggravating and aggravating factors ofwhich he is aware, and the defendant or his attorney may present allappropriate mitigating factors. In every instance in which a valid chemicalanalysis is made of the defendant, the prosecutor must present evidence of theresulting alcohol concentration."
SECTION 14. G.S.20-179 is amended byadding a new subsection to read:
"(a1) Sentencing Hearing inSuperior Court. - Upon a determination of guilt by the jury, the courtshall submit to the same jury or a different jury if using the same jury isimpracticable, any grossly aggravating or aggravating factors supported by theevidence. Prior to submitting these factors to the jury, the court shall allowthe State and the defendant to present evidence to the jury that is relevant toproving any grossly aggravating factors that had not been presented to the juryduring the guilt phase of the trial. Provided, however, the court is notrequired to allow proof of or submit to the jury any grossly aggravating oraggravating factor that is a conviction of a crime or determination ofresponsibility for an infraction or that is stipulated to by the defendant."
SECTION 15. G.S.20-179(c) reads asrewritten:
"(c) Determining Existenceof Grossly Aggravating Factors. - At the sentencing hearing, based upon theevidence presented at trial and in the hearing, the
judge judge, orthe jury in superior court, must first determine whether there are anygrossly aggravating factors in the case. The judge must impose the Level Onepunishment under subsection (g) of this section if the judge determinesitis determined that two or more grossly aggravating factors apply. The judgemust impose the Level Two punishment under subsection (h) of this section if thejudge determinesit is determined that only one of the grosslyaggravating factors applies. The grossly aggravating factors are:
(1) A prior conviction foran offense involving impaired driving if:
a. Theconviction occurred within seven years before the date of the offense for whichthe defendant is being sentenced; or
b. Theconviction occurs after the date of the offense for which the defendant ispresently being sentenced, but prior to or contemporaneously with the presentsentencing.
Each prior conviction is a separategrossly aggravating factor.
(2) Driving by thedefendant at the time of the offense while his driver's license was revokedunder G.S.20-28, and the revocation was an impaired driving revocationunder G.S.20-28.2(a).
(3) Serious injury toanother person caused by the defendant's impaired driving at the time of theoffense.
(4) Driving by thedefendant while a child under the age of 16 years was in the vehicle at thetime of the offense.
In imposing a Level One or Two punishment, the judge may considerthe aggravating and mitigating factors in subsections (d) and (e) indetermining the appropriate sentence. If there are no grossly aggravatingfactors in the case, the judge must weigh all aggravating and mitigatingfactors and impose punishment as required by subsection (f)."
SECTION 16. G.S.20-179(d) reads asrewritten:
"(d) Aggravating Factorsto Be Weighed. - The
judge judge, or the jury in superior court, mustdetermine before sentencing under subsection (f) whether any of the aggravatingfactors listed below apply to the defendant. The judge must weigh theseriousness of each aggravating factor in the light of the particularcircumstances of the case. The factors are:
(1) Gross impairment ofthe defendant's faculties while driving or an alcohol concentration of 0.16 ormore within a relevant time after the driving.
(2) Especially reckless ordangerous driving.
(3) Negligent driving thatled to a reportable accident.
(4) Driving by thedefendant while his driver's license was revoked.
(5) Two or more priorconvictions of a motor vehicle offense not involving impaired driving for whichat least three points are assigned under G.S.20-16 or for which theconvicted person's license is subject to revocation, if the convictionsoccurred within five years of the date of the offense for which the defendantis being sentenced, or one or more prior convictions of an offense involvingimpaired driving that occurred more than seven years before the date of theoffense for which the defendant is being sentenced.
(6) Conviction underG.S.20-141.5 of speeding by the defendant while fleeing or attempting toelude apprehension.
(7) Conviction underG.S.20-141 of speeding by the defendant by at least 30 miles per hourover the legal limit.
(8) Passing a stoppedschool bus in violation of G.S.20-217.
(9) Any other factor thataggravates the seriousness of the offense.
Except for the factor in subdivision (5) the conductconstituting the aggravating factor must occur during the same transaction oroccurrence as the impaired driving offense."
SECTION 17. G.S.20-179(f) reads asrewritten:
"(f) Weighing theAggravating and Mitigating Factors. - If the judge or the jury in thesentencing hearing determines that there are no grossly aggravating factors,
hethe judge must weigh all aggravating and mitigating factors listedin subsections (d) and (e). If the judge determines that:
(1) The aggravatingfactors substantially outweigh any mitigating factors, he must note in thejudgment the factors found and his finding that the defendant is subject to theLevel Three punishment and impose a punishment within the limits defined insubsection (i).
(2) There are noaggravating and mitigating factors, or that aggravating factors aresubstantially counterbalanced by mitigating factors, he must note in thejudgment any factors found and his finding that the defendant is subject to theLevel Four punishment and impose a punishment within the limits defined insubsection (j).
(3) The mitigating factorssubstantially outweigh any aggravating factors, he must note in the judgmentthe factors found and his finding that the defendant is subject to the LevelFive punishment and impose a punishment within the limits defined in subsection(k).
It is not a mitigating factor that the driver of the vehicle wassuffering from alcoholism, drug addiction, diminished capacity, or mentaldisease or defect. Evidence of these matters may be received in the sentencinghearing, however, for use by the judge in formulating terms and conditions ofsentence after determining which punishment level must be imposed."
part xi. require a dasignature before a motion for appropriate relief is granted in district court
SECTION 18. G.S.15A-1420(a) reads asrewritten:
"(a) Form, Service,Filing.
(1) A motion forappropriate relief must:
a. Be made inwriting unless it is made:
1. In opencourt;
2. Before thejudge who presided at trial;
3. Before theend of the session if made in superior court; and
4. Within 10days after entry of judgment;
b. State thegrounds for the motion;
c. Set forththe relief sought; and
d. Be timelyfiled.
(2) A written motion forappropriate relief must be served in the manner provided in G.S.15A-951(b).When the written motion is made more than 10 days after entry of judgment,service of the motion and a notice of hearing must be made not less than fiveworking days prior to the date of the hearing. When a motion for appropriaterelief is permitted to be made orally the court must determine whether thematter may be heard immediately or at a later time. If the opposing party, orhis counsel if he is represented, is not present, the court must provide forthe giving of adequate notice of the motion and the date of hearing to theopposing party, or his counsel if he is represented by counsel.
(3) A written motion forappropriate relief must be filed in the manner provided in G.S.15A-951(c).
(4) An oral orwritten motion for appropriate relief may not be granted in District Courtwithout the signature of the District Attorney, indicating that the State hashad an opportunity to consent or object to the motion. However, the court maygrant a motion for appropriate belief without the District Attorney's signature10 business days after the District Attorney has been notified in open court ofthe motion, or served with the motion pursuant to G.S.15A-951(c)."
part xii. MAKING IT ILLEGALFOR A PERSON UNDER 21 YEARS OF AGE TO CONSUME AS WELL AS POSSESS ALCOHOL AND TOALLOW ALCOHOL SCREENING DEVICES TO BE USED TO PROVE A PERSON HAS CONSUMEDALCOHOL
SECTION 19. G.S.18B-302 reads asrewritten:
"§ 18B-302.Sale to or purchase by underage persons.
(a) Sale. - It shall beunlawful for any person to:
(1) Sell or give maltbeverages or unfortified wine to anyone less than 21 years old; or
(2) Sell or give fortifiedwine, spirituous liquor, or mixed beverages to anyone less than 21 years old.
(b) Purchase orPossession. - It shall be unlawful for:
(1) A person less than 21years old to purchase, to attempt to purchase, or to possess malt beverages orunfortified wine; or
(2) A person less than 21years old to purchase, to attempt to purchase, or to possess fortified wine,spirituous liquor, or mixed
(3) A personless than 21 years old to consume any alcoholic beverage.
(c) Aider and Abettor.
(1) By Underage Person. -Any person who is under the lawful age to purchase and who aids or abetsanother in violation of subsection (a) or (b) of this section shall be guiltyof a Class 2 misdemeanor.
(2) By Person over LawfulAge. - Any person who is over the lawful age to purchase and who aids or abetsanother in violation of subsection (a) or (b) of this section shall be guiltyof a Class 1 misdemeanor.
(d) Defense. - It shallbe a defense to a violation of subsection (a) of this section if the seller:
(1) Shows that thepurchaser produced a driver's license, a special identification card issuedunder G.S.20-37.7, a military identification card, or a passport, showinghis age to be at least the required age for purchase and bearing a physicaldescription of the person named on the card reasonably describing thepurchaser; or
(2) Produces evidence ofother facts that reasonably indicated at the time of sale that the purchaserwas at least the required age.
(e) Fraudulent Use of Identification.- It shall be unlawful for any person to enter or attempt to enter a placewhere alcoholic beverages are sold or consumed, or to obtain or attempt toobtain alcoholic beverages, or to obtain or attempt to obtain permission topurchase alcoholic beverages, in violation of subsection (b) of this section,by using or attempting to use any of the following:
(1) A fraudulent oraltered drivers license.
(2) A fraudulent oraltered identification document other than a drivers license.
(3) A drivers licenseissued to another person.
(4) An identificationdocument other than a drivers license issued to another person.
(5) Any other form ormeans of identification that indicates or symbolizes that the person is notprohibited from purchasing or possessing alcoholic beverages under thissection.
(f) Allowing Use ofIdentification. - It shall be unlawful for any person to permit the use of theperson's drivers license or any other form of identification of any kind issuedor given to the person by any other person who violates or attempts to violatesubsection (b) of this section.
(g) Conviction ReportSent to Division of Motor Vehicles. - The court shall file a conviction reportwith the Division of Motor Vehicles indicating the name of the person convictedand any other information requested by the Division if the person is convictedof:
(1) A violation ofsubsection (e) or (f) of this section; or
(2) A violation ofsubdivision (c)(1) of this section; or
(3) A violation ofsubsection (b) of this section, if the violation occurred while the person waspurchasing or attempting to purchase an alcoholic beverage.
Upon receipt of a conviction report, the Division shall revokethe person's license as required by G.S.20-17.3.
(h) Handling in Course ofEmployment. - Nothing in this section shall be construed to prohibit anunderage person from selling, transporting, possessing or dispensing alcoholicbeverages in the course of employment, if the employment of the person for thatpurpose is lawful under applicable youth employment statutes and Commissionrules.
Purchase orPossessionPurchase, Possession, or Consumption by 19 or 20-Year old.-Aviolation of subdivision (b)(1) or (b)(3) of this section by a personwho is 19 or 20 years old is a Class 3 misdemeanor.
(j) Notwithstandingany other provisions of law, a law enforcement officer may require any personthe officer has probable cause to believe is under age 21 and has consumed alcoholto submit to an alcohol screening test using a device approved by theDepartment of Health and Human Services. The results of any screening deviceadministered in accordance with the rules of the Department of Health and HumanServices shall be admissible in any court or administrative proceeding to provethat a person possessed or consumed an alcoholic beverage. A refusal to submitto an alcohol screening test shall be admissible in any court or administrativeproceeding."
part xiii. allow credit onlyfor hours served for weekend jail time
SECTION 20. G.S.20-179(s) reads asrewritten:
"(s) Method of ServingSentence. - The judge in his discretion may order a term of imprisonment or
communityservice to be served on weekends, even if the sentence cannot be served inconsecutive sequence. However, if the defendant is ordered to a term of 48hours or more or has 48 hours or more remaining on a term of imprisonment, thedefendant shall be required to serve 48 continuous hours of imprisonment to begiven credit for time served. Credit for any jail time shall only be given hourfor hour for time actually served. The jail shall maintain a log showing numberof hours served. If the defendant appears at the jail and has remaining in hisbody any alcohol as shown by an alcohol screening device or controlledsubstance previously consumed, unless lawfully obtained and taken intherapeutically appropriate amounts, the defendant shall be refused entranceand shall be reported back to court. If, after a hearing, the court determinesthat when the defendant reported to jail, the defendant had remaining in hisbody any alcohol previously consumed as shown by an alcohol screening device orcontrolled substance previously consumed, unless lawfully obtained and taken intherapeutically appropriate amounts, the defendant must be ordered to serve hisjail time immediately and shall not be eligible to serve jail time on weekends.
part xiv. require dwioffenders on supervised probation to submit to testing for alcohol or drugs
SECTION 21. G.S.20-179 is amended byadding a new subsection to read:
"(u) MandatoryTerms of Supervised Probation. - When placing a defendant convicted of anoffense of impaired driving on supervised probation, the judge shall require asspecial conditions of probation that the defendant not use, possess, or controlany illegal or controlled substance, and submit to any physical, chemical,blood or breath test, or to a urinalysis for the detection of alcohol orcontrolled substances."
part xv. effective date
SECTION 22. Section 3 of this act becomeseffective December 1, 2005, and applies to all permit applications and renewalson or after that date. Section 10 of this act becomes effective January 1,2006. Sections 13 through 17 are effective when they become law. Section 18becomes effective December 1, 2005, and applies to all motions filed on orafter that date. Section 20 of this act is effective when it becomes law. Theremainder of this act becomes effective December 1, 2005, and applies tooffenses committed on or after that date.