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DMV License Suspension | Charlotte DUI

DMV License Issues in DUI Cases

In addition to the criminal penalties of a NC DWI conviction, there are also Department of Motor Vehicle (DMV) license consequences that must be addressed. Following arrest and before you are even released, the Magistrate Judge and/or the arresting officer will inform you that your North Carolina driver’s license (or driving privileges if you are from a different State) are immediately suspended for thirty (30) days. This surprises most clients. After all, you have not been convicted of anything at this point. And, of course, this is their most pressing concern as people have to be able to drive to get to work, get to school, pick up kids, etc. By far, this is the subject that clients want and need to know about first. Here is the good news.

DMV License Suspension Challenge

During this initial revocation period, our firm can help clients in one of two ways. First, if retained within ten (10) days from arrest, we can file a request for a DMV hearing to challenge the revocation. The State of North Carolina must be given three (3) days to respond. In many cases, they will fax a letter indicating they do not wish to be heard. We then present our petition before a District Court Judge. If approved, your driver’s license or privileges are restored in full. No limitations and no additional costs (we include this DMV hearing in our original attorney fees).

Pre-Trial Limited Driving Privilege

If retained after ten (10) days or the DMV challenge hearing is denied, we can then petition the Court for a Limited Driving Privilege. There are certain restrictions and additional costs involved. First, you must obtain a substance abuse assessment (not the treatment) at a cost of $100.00. Next, you must have your insurance company send a Form DL-123 that confirms you have active vehicle liability insurance. We then prepare the necessary court documents and affidavit indicating you have no other pending DWI charges and that your license was in good standing at the time of your arrest. Ten (10) days after arrest, we can submit your petition to a District Court Judge for approval. There is also another $100.00 cost paid to the State of North Carolina for your LDP. At the end of thirty (30) days following arrest, you can have your original driver’s license returned after you pay another $100.00 to the State of North Carolina for license restoration.

Willful Refusal of Breath Testing

If you willfully refuse or are otherwise unable to give a proper breath sample, the officer will indicate that refusal in the arrest records. Many clients report doing their best to comply but were not able to give a sufficient breath sample during testing. Even though most clients have never seen a breath test machine, police officers routinely describe the client’s “refusal” as “gaming the test.” If not challenged, the charged driver will lose their driver’s license for one (1) year, even with a first offense. Here’s what you can expect:

If a DWI suspect “refuses” breath testing, the arresting officer will complete an affidavit documenting that refusal. The officer then submits that affidavit to the Magistrate Judge at the defendant’s initial court appearance and also mails a copy to the North Carolina Department of Motor Vehicles (DMV). If (1) the officer is found to have had sufficient probable cause to believe the person committed an implied consent offense, (2) charged the person with that offense, and (3) complied with all implied consent procedures, then the defendant’s refusal will result in an immediate civil license revocation of thirty (30) days ordered by the Magistrate Judge. In addition, there will be a one (1) year driver’s license suspension ordered by DMV under N.C.G.S. 20-16.2(d). That one (1) year suspension can only be stayed by timely requesting a DMV hearing within ten (10) days after the date of arrest. If you fail to meet this very short deadline, your challenge option will be lost forever.

DMV Hearings in Willful Refusal Cases

Just as with the DWI charge, the entire burden of proof to show a willful refusal is entirely on the State of North Carolina. Reasonable suspicion to stop is not relevant in this hearing. Instead, the only issue is whether the officer had probable cause to believe a DUI defendant violated an implied consent offense. The arresting officer is the State’s witness and briefly reviews the initial arrest and then goes over in detail the breath testing process. For those persons who truly refuse, the resulting decision by the hearing officer is expected. The only way to prevail in true refusal cases is for the officer to not be present at the court date, usually twice. But in those cases where there is a legitimate question of “willfulness,” a bad ruling by a hearing officer can be difficult to appreciate. Here are a couple of examples we have encountered:

One case involved a lady with borderline or mild asthma. At her hearing, the officer testified that this client was polite and fully cooperative at all stages of her arrest. She freely answered all questions and complied with all requests, including roadside field sobriety testing. She never questioned or challenged any request or test. At the station, she actively blew into the machine for six (6) separate tests. Despite her best efforts, the machine never registered a reading, and she was deemed to be non-compliant. Perhaps the breath testing machine was not working properly? Nevertheless, she was ruled as a “willful refusal.”

Another case involved a foreigner who was visiting Charlotte and was arrested for DWI. While the Mecklenburg Charlotte Police Department has a numerous Spanish speaking officers and translators, this individual spoke a different language. Although the arresting officer confirmed he was having great difficulty communicating with this defendant and that no interpreter was available, the hearing officer affirmed the “willful refusal.” It is difficult to comply or willfully refuse when you cannot be properly informed of your rights.

There is one last option in these situations. If an unfavorable decision results from the initial DMV hearing, a defendant can pursue an appeal to Superior Court pursuant to N.C.G.S. 20-16.2(e) and seek judicial review of that Order.

Post DWI Limited Driving Privilege

Once the initial LDP and refusal issues resolved, we focus on the criminal side of the DWI case. If successful, no other DMV action is required. If found or plead guilty, the next DMV matter will be to petition the court for a post trial Limited Driving Privilege. For a first time DWI without any gross aggravators, your attorney will have a LDP ready for the judge to sign at the time of your plea. You will have to surrender your driver’s license but will be able to drive home with your issued LDP. However, in cases where there is a refusal or a blood alcohol concentration (BAC) level of 0.15% or greater, you will have to wait either six (6) months or forty-five (45) days, respectively, before you will eligible to petition. Many people understandably protest they have to drive and cannot wait these periods, but there is no legal exception to this harsh law. If subsequently arrested for driving without a license after a DWI, the penalties are severe, including possible jail time for violating the terms of your probation. Mecklenburg County judges would not hesitate to revoke a person’s probation under these conditions and sentence them to up to active time in jail.