DWI vs Driving after Consuming in NC
The "Driving after Consuming" charge only applies to those under age 21, and does not require any actual impairment due to alcohol. In fact any BAC above 0.01 can result in the charge. Someone under age 21 can be charged with both DWI and driving after consuming if they were in fact impaired. A DWI charge is basically automatic for a BAC of 0.08 or above. Each charge for first time offenders is a misdemeanor with similar consequences despite DWI having its own special sentencing guidelines.
What is the BAC limit for a minor in NC?
To be convicted of DWI a minor generally must blow 0.08 or higher; however, any alcohol in the system of someone under 21 will result in the charge of driving after consuming. Consequences for driving after consuming are substantially similar to a full blown DWI. This includes license revocation for a period of 1 year just like a first offense of DWI.
Underage DWI in NC
The legal limit for anyone in North Carolina is 0.08 regardless of their age. The main difference for underage drivers is they can also be charged with driving after consuming if they have any alcohol in their system. This charge is separate and distinct from Driving While Impaired, yet results in similar consequences such as license revocation for 1 year. Additionally, anyone under 21 convicted of DWI in NC is not eligible for a limited driving privilege.
Driving after Consuming in NC
Per NCGS 138.3(a) "It is unlawful for a person less than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has remaining in his body any alcohol or controlled substance previously consumed, but a person less than 21 years old does not violate this section if he drives with a controlled substance in his body which was lawfully obtained and taken in therapeutically appropriate amounts."
Is Driving after Consuming a misdemeanor in NC?
Driving after consuming is a Class 2 misdemeanor punishable by up to 60 days in jail. Although jail is rarely applied for first time offenders probation is a very real possibility based on the facts of the case and the judge. Driving after consuming is not a lessor included offense of DWI meaning a defendant can be charged with both offenses, although the District Attorney "DA" often will dismiss the driving after consuming if the defendant agrees to plead guilty to the more serious charge of DWI.
Defenses to driving after consuming in NC
Much like a DWI, there must be reasonable suspicion for a stop and probable cause for an arrest. The State actually has a much lower standard to convict compared to a DWI since they don’t have to prove any impairment.
Driving after consuming options in NC
Some possible options if you have no valid defense include the following:
Driving after consuming punishment in NC
Per NCGS 138.3(c) “Punishment; Effect When Impaired Driving Offense Also Charged. - The offense in this section is a Class 2 misdemeanor. It is not, in any circumstances, a lesser included offense of impaired driving under G.S. 20-138.1, but if a person is convicted under this section and of an offense involving impaired driving arising out of the same transaction, the aggregate punishment imposed by the court may not exceed the maximum applicable to the offense involving impaired driving, and any minimum punishment applicable shall be imposed.”
Driving after consuming under 21 in NC prayer for judgment
Only a judge as opposed to the DA can grant a prayer for judgment continued or PJC. A PJC is totally within the discretion of the judge and can only be granted after a guilty verdict or guilty plea. Generally speaking, it would help to have a lawyer who knows your local judge and can help you provide guidance on whether a PJC is likely. Although a PJC can never be granted for a DWI per NC statute it is a possibility for the charge of driving after consuming. Below are some of the factors a judge may consider in deciding whether to grant a request for a PJC for driving after consuming.
Will I lose my license if convicted of driving after consuming in NC?
Yes- a conviction for driving after consuming will result in a 1 year license revocation just like a DWI conviction.
Can I get a driving privilege after driving after consuming in NC?
To be eligible for a limited driving privilege after a conviction the defendant must have been at least 18 at the time of the offense and have no prior similar convictions.
When can a minor be charged with DWI in NC?
A 16 year old can be charged with DWI just like an adult. In addition, the new Raise the Age law raising the age to 18 to be charged as an adult for most criminal offenses does not apply to driving offenses.
Can a minor refuse a breathalyzer in NC?
Yes- but the statute of NCGS 138.3 has the following language: “Odor Insufficient. - The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver's body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.”
What happens in you get a DUI under 21 in NC?
If convicted of DUI for an offense that occurred while the defendant was under 21 they will lose their license for 1 year. In addition, as an added penalty for being under 21 they would not be eligible to drive to work as they would not be eligible to obtain a limited driving privilege.
Will I lose my license if convicted of DWI while under 21?
Yes- not only will your license be suspended for 1 year, you are not eligible for a limited driving privilege under any circumstances.
Can I get a driving privilege after DWI if under 21 in NC?
A person convicted for DWI for an offense that occurred before 21 is not eligible for a limited driving privilege under NC law. Even if you could get a judge to sign such a privilege it would be rejected by the DMV.
Can a conviction for driving after consuming be expunged?
Although a DWI conviction can never be expunged a driving after consuming conviction is potentially eligible based upon the criteria for misdemeanors. Expungement of misdemeanor convictions generally requires a 5 year wait period for offenses that occur after age 18. There is usually only a 2 year wait period for offenses before age 18.
Drinking and Driving under 21 in NC
There is “zero tolerance” in North Carolina for people under 21 to have an alcohol in their system while operating a motor vehicle. As anyone under 21 is not allowed to purchase or possess alcohol they are certainly not allowed to drink and drive. For this reason the special crime of "driving after consuming" was created which revokes the license of anyone convicted under 21 with a BAC or 0.01 or above.