Duncan A. McMillan

DWI/Traffic Cases

Provisional Licensee Per Se Alcohol Violations (Underage Drinking)

North Carolina General Statute 20-138.3 prohibits anyone under the age of 21 from driving a motor vehicle on the public streets or highways with any alcohol remaining in his or her system. The prohibition also includes driving while any controlled substance remains in the individual’s body, unless such controlled substance was lawfully obtained and taken in therapeutically appropriate amounts.

The law provides that the odor of alcohol on the breath of an underage driver is insufficient evidence, standing alone, to prove that alcohol remains in the driver’s body. However, the odor of alcohol alone may be sufficient if the driver was offered an alcohol screening test, or other chemical analysis, and refused to provide the appropriate breath or blood sample for analysis.

Although a portable breath testing device which may be used for investigative purposes by law enforcement officers in DWI cases is not admissible to show the alcohol concentration of an individual in a DWI case, the results of such tests are admissible in connection with a provisional licensee violation. Presumably, this is so because there is a per se prohibition on driving with any alcohol in the body for a person under the age of 21, and a precise measurement of the alcohol quantity is not necessary.

A conviction for underage drinking and driving carries a one year loss of license. An underage driver who is 18, 19, or 20 years old and is otherwise eligible for a Limited Privilege, may obtain a Limited Driving Privilege upon a conviction for underage drinking and driving. An individual who is 16 or 17 years old may not obtain a Limited Driving Privilege.

In the Tenth Judicial District, it is generally advisable for an individual who is charged with underage drinking and driving to obtain an assessment, and complete the alcohol education program recommended, prior to court. It is also helpful for such individual to perform 24 hours of community service prior to court. As of the time of this writing (July, 2005) it is not uncommon for a judge to grant a Prayer for Judgment Continued in an underage drinking and driving case where the defendant has obtained an assessment and completed treatment, and has performed 24 hours of community service. However, the current legislature is considering amendments to the motor vehicle laws that would preclude a judge from exercising his or her authority to grant a Prayer for Judgment in these cases. Although a Prayer for Judgment Continued is a finding of guilt, since no final judgment is entered for a first PJC, it cannot be used as a basis for a license suspension by the Division of Motor Vehicles.