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DRIVING WHILE IMPAIRED – Defining “Driving”

As always, we begin our analysis by reviewing the relevant law, N.C.G.S. 20-138.1: “A person commits the offense of Impaired Driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this state: While under

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DRUGGED DRIVING IN NORTH CAROLINA

Drugged Driving – or Drug DWI – is a form of “Impaired Driving,” under N.C.G.S. 20-138.1. This is the same law that the State uses to convict drunk drivers. In other words, the same law governs drunk driving and drugged driving. But, operating under the influence of drugs, and operating under the influence of alcohol, are two very different things.

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Serious cases require serious representation.

NC DMV SUSPENSIONS & REVOCATIONS

With 1 in 7 North Carolina drivers operating on a suspended license, it begs the questions: why so many? And, how does a driver reinstate a suspended North Carolina driver license?
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FLETCHER LEGAL IS A CHARLOTTE-BASED LAW PRACTICE DEDICATED TO HELPING OUR CLIENTS NAVIGATE BOTH THE JUDICIAL PROCESS, AND LIFE’S MOST DIFFICULT MOMENTS. We constantly push the limits of what’s possible when it comes to integrating technology into solo practice with the goal of reducing client fees and expanding access to law. We believe in treating people the way we want to be treated.

WE FIRMLY BELIEVE THAT RESULTS SPEAK FOR THEMSELVES, BUT RESULTS AREN’T EVERYTHING. We believe that relationships are key, and we only accept clients that we feel we can have a successful partnership with to reach the best results. We believe that legal emergencies rarely occur during business hours, and that it is essential for clients to have Attorney Fletcher’s personal cell phone number.

WE ACCEPT CLIENTS, NOT CASES, AND WE GO WHERE WE ARE NEEDED, ACROSS ALL 100 NORTH CAROLINA COUNTIES. We stick to what we’re good at, continually pushing the envelope and streamlining process steps. We always set our clients up for the best possible outcome.

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CRIMES RESULTING FROM DRIVING ON A SUSPENDED LICENSE

DID YOU KNOW that 1 in 7 North Carolina drivers has a suspended license as a result of not appearing in court, or failing to pay a fine? Traffic law can be especially tricky; and cleaning up a driving record in order to restore driving privileges is oftentimes a tedious process where one slip-up can accidentally invoke an additional period of suspension. At Fletcher Legal, we help clients restore their North Carolina driving privileges, and resolve old tickets and unpaid fines. In this article, I’ll teach you the process for reinstating a suspended North Carolina driver license, and getting back on the road – driving legally – and putting an end to incessantly checking your rear view mirrors.
CRIMINAL CHARGES FROM DRIVING ON SUSPENDED LICENSE. There are three types of criminal charges that can result from driving on a suspended license:

CRIMINAL CHARGES FROM DRIVING ON SUSPENDED LICENSE. There are three types of criminal charges that can result from driving on a suspended license:

  1. DRIVING WHILE LICENSE REVOKED (DWLR) N.C.G.S. § 20-28(a), a class 3 misdemeanor and a moving violation which carries a maximum authorized penalty of up to 20 days in jail, N.C.G.S. ⸹ 15A-1340.23.

  2. DRIVING WHILE LICENSE REVOKED FOR IMPAIRED DRIVING(DWLR-DWI) N.C.G.S. § 20-28(a1), a Class 1 misdemeanor that carries an additional 1 year suspension for a first conviction, two years for the second conviction, and a permanent driver license revocation for the third or subsequent offense. Additionally, this offense carries a maximum authorized penalty of up to 120 days in jail, N.C.G.S. ⸹ 15A-1340.23.

  3. NO OPERATOR LICENSE (NOL) N.C.G.S. § 20-35, a Class 2 misdemeanor with several subsections outlined in the statute that create a myriad of additional Class 3 misdemeanor offenses for operating motor vehicles outside the scope of the class for which the driver is authorized to operate (for example, operating a motorcycle without a proper motorcycle endorsement). Additionally, this offense carries a maximum authorized penalty of up to 60 days in jail, N.C.G.S. ⸹ 15A-1340.23.
COMPLIANCE OFFENSES. Driving While License Revoked (DWLR) and No Operator License (NOL) are both typically referred to as “Compliance Offenses,” meaning that if the person charged is able to get in compliance – that is, obtain their reinstated driving privileges and present proof of compliance – at or before their scheduled court date, the District Attorney is typically apt to dismiss the criminal charge. Easier said than done: oftentimes cleaning up a messy driving record is a complex process that requires professional assistance, adding old cases back onto criminal dockets, and paying off old court costs and fines. In any case involving a suspended North Carolina driver license, the process is usually the same:
  1. Obtain a copy of the client’s driving record and review the entries; determine the exact cause of suspension;

  2. Develop a clear path forward toward reinstatement; communicate the plan to the client along with an estimate of expected costs and fines;

  3. Add-on old tickets where the client missed court;

  4. Pay off old court costs and fines;

  5. File any special motions and “Hail Mary” plays that may be required as a last resort, such as a Motion for Appropriate Relief; and

  6. After removing all suspensions, have client obtain a valid driver license and resolve the underlying driving charge.

IMPAIRED DRIVING SUSPENSIONS. Take special note: none of this applies of the reason for revocation is an impaired driving charge or conviction. Whenever the client has been suspended for Driving While Impaired (DWI), Driving After Consuming < 21 years old, or Habitual Impaired Driving, it’s necessary to determine whether a Limited Driving Privilege is available, rather than removing a DMV suspension.

Stop looking over your shoulder every time you get behind the wheel, and call Fletcher Legal today.
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CAUSES OF DRIVER LICENSE SUSPENSIONS & REVOCATIONS

OTHER REASONS FOR DRIVER LICENSE SUSPENSION. N.C.G.S. § 20-16 specifies that NC DMV (North Carolina Division of Motor Vehicles) may revoke a person’s driver license for several reasons:

  1. DMV POINTS. The driver has accumulated twelve or more DMV points within a three-year period;

  2. DWI. The driver has been convicted of an Impaired Driving offense;

  3. SPEEDING > 80. The driver has been convicted of operating a motor vehicle at a speed in excess of eighty miles per hour on a public road where the maximum speed is seventy miles per hour;

  4. SPEEDING > 75. The driver has been convicted of operating a motor vehicle at a speed in excess of seventy-five miles per hour on a public road where the maximum speed is less than seventy miles per hour;

  5. POOR DRIVING. The driver has been convicted of the following charges in at least two separate incidents within twelve months of one another:

    1. Speeding in excess of fifty-five miles per hour, and not more than eighty miles per hour;

    2. Careless and Reckless Driving; and/or

    3. Aggressive Driving;

  6. FAKE ID. N.C.G.S. 18B-302(e) makes is a Class 1 misdemeanor to use fraudulent identification to:

    1. Enter or attempt to enter a place where alcoholic beverages are sold or consumed;

    2. Obtain or attempt to obtain alcoholic beverages; or

    3. To obtain or attempt to obtain permission to purchase alcoholic beverages.

A conviction under this statute also triggers a mandatory one-year driver license revocation. N.C.G.S. ⸹ 20-30 (3) makes it a Class 2 misdemeanor to display or represent as one’s own a driver’s license not issued to the person displaying it. Upon conviction, DMV may suspend a person’s driver’s license for up to one year. N.C.G.S. ⸹ 20-16 (a)(6); N.C.G.S. ⸹ 20-19 (c).

7. COURT ORDER. The driver has had their license revoked as part of a court order in any criminal sentence;

8. FAILURE TO APPEAR / FAILURE TO COMPLY OR PAY FINE. Failing to appear in court, or failing to pay a fine (when appearance is waivable) imposes an indefinite suspension on the driver until the citation is addressed and resolved.

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IMPORTANT TERMS

Insurance Points and their effect on insurance premiums in North Carolina.

DMV points are usually relevant if a driver receives enough points to result in suspension of their driver’s license. Otherwise, their primary concern is what effect a conviction will have on their insurance rates. The more insurance points a driver receives, the higher their auto insurance premiums will rise. DMV points and insurance points do not necessarily coincide with one another: for example, a conviction for speeding more than 10 mph over the limit, at a total speed between 55 and 76 mph results in 3 DMV points, and 2 insurance points (which yields a 45% increase in insurance rates).

There are two ways the state of North Carolina can take away a person’s driver license: suspension and revocation. Suspension is the loss of driving privileges for a limited period of time. Revocation is the loss of driving privileges permanently.

North Carolina Department of Transportation
North Carolina Department of Transportation

Failing to address and resolve a traffic ticket, whether or not appearance is required, results in the Clerk of Court marking the file as “Called and Failed.” This Failure to Appear, or FTA, results in an additional $200 fee being applied on top of any court costs or fines imposed. Likewise, a Failure to Comply, or Failure to Pay Fine, will result in additional fees being imposed.

After being pulled over and receiving a traffic ticket, it’s not always necessary for a driver to actually appear in court. Sometimes, a person is able to simply pay the ticket without appearing in court by mailing a signed copy of the citation plus certified funds to the Clerk of Court: the types of cases not requiring a personal appearance are called Waivable Appearances. Alternatively, Mandatory Appearances require an in-court appearance from the person charged, or his attorney.

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FAILURE TO APPEAR (FTA) • FAILURE TO COMPLY (FTC)

MANDATORY AND WAIVABLE APPEARANCES. Failing to handle and resolve a traffic ticket, whether or not a court appearance is required (referred to as “Mandatory Appearances” and “Waivable Offenses“) results in the Clerk of Court marking the file (or “Shuck”) as “Called and Failed.” Once that occurs, the driver has twenty days to either appear in court and attempt to have the case reset on a new court date or pay the court costs and fines (where the appearance is waivable), N.C.G.S. § 20-24.2. If after 20 days, the driver has still not appeared in court to resolve the ticket, the court will assess an additional $200 fine, in additional to any other fines and fees that may be assessed. The Clerk will then notify DMV.

FORMS BOOK. We keep lists of the traffic offenses requiring mandatory court appearances, and those offenses where appearance may be waived, along with a ton of other useful forms in our Forms Book.

DMV’S INVOLVEMENT IN AN FTA. Once DMV becomes aware of the driver’s failure to appear in court following a traffic citation, the agency will send a letter to the driver’s last known address stating that their driver license will be suspended within 60 days if the matter is not addressed. The 60-day clock begins to run on the day that the Clerk initially marked the Shuck as “Called and Failed,” not the date that DMV sent the driver its warning letter. On the 60th day, without any action taken by the driver to address their missed court appearance, DMV revokes their driver license “Indefinitely” (which is reflected on that person’s driving record as “INDEF”). Should the driver receive a moving violation during this period of revocation, such as reckless driving, speeding, DWLR, or NOL, an additional one-year revocation is assessed.

DMV’S INVOLVEMENT IN AN FTC. Alternatively, if the driver went to court, was ordered to pay a fine, but ultimately failed to do so, DMV will also send a warning letter advising the driver of the upcoming suspension should they fail to act. Failing to pay a fine, penalty, or court cost within 40 days of the date specified in the judgment will similarly cause an indefinite suspension. N.C.G.S. § 20-24.2 (a)(1).

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TYPES OF NC DRIVER LICENSE SUSPENSIONS

In North Carolina, there are three types of driver license suspensions:

  1. DEFINITE ;

  2. INDEFINITE; 

  3. PERMANENT
DEFINITE SUSPENSION. A definite suspension ends on a specified date. For example, a driver that is 21 years of age or older that registers a blood alcohol content level of .08 or higher will have his license revoked for 30 days. Definite revocations are difficult to modify: here, the best case scenario is often attempting to obtain a limited driving privilege.

INDEFINITE SUSPENSION. An indefinite suspension has no end date: these generally appear on a driving record because some necessary court or DMV action has not yet been addressed, such as failing to appear on a citation, or failing to pay a fine. Following a failure to appear, the driver will have his license suspended until:

  1. They dispose of the charge in the proper court;

  2. They demonstrate to the court that they are not the person charged with the offense;

  3. The failure to appear is marked “Sent in Error.”
TRACKING DOWN EACH INDEFINITE SUSPENSION. Generally, when a person indicates that their license is suspended, but they have not obtained a DWI charge or conviction, there are one or more indefinite suspensions recorded on their driving record. In order to resolve these suspensions, and reinstate the driver’s license, it’s necessary to record the case number from each entry, and call the Clerk of Court in the county where the case is located, then determine what action must occur to resolve the matter: has the driver appeared in court and simply needs to pay the fine? Must the case be added back onto the criminal docket for resolution?

HABITUAL IMPAIRED DRIVING. If a driver is convicted of Habitual Impaired Driving, they are ineligible to be licensed in North Carolina for at least ten years. N.C.G.S. § 20-19 (e)(4). A person commits the offense of Habitual Impaired Driving if they drive while impaired and have been convicted of three or more offenses involving impaired driving within ten years of the date of this offense. A revocation for Habitual Impaired Driving precludes the possibility of a limited driving privilege.

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HOW TO RESTORE A SUSPENDED OR REVOCATED NORTH CAROLINA DRIVER LICENSE

FOLLOW THE STEPS. Restoring a person’s suspended North Carolina driving privileges requires adherence to a specific procedure. Although each suspended driver requires a personalized plan, adherence to the following procedure
OUR METHODOLOGY. At Fletcher Legal, we follow a specific process for resolving a client’s suspended driver’s license. Each client is different: some are simple and require only the payment of a forgotten fine before a DMV suspension is lifted. Others are complex, spread out over multiple counties across the state, and require filing complex motions and multiple add-ons. After helping hundreds of clients reinstate their driving privileges, we’ve found that the following process is usually the best way to attack DMV suspensions, and to leave our clients in the best possible position with their insurance company with DMV:

1. SEEK DISMISSALS. If the driver has several old charges in the same county, see what can be resolved through “Global Pleas,” that is – if we plead to A, are you willing to dismiss B, C, and D? I’ve found that as long as the reason for suspension doesn’t stem from an Impaired Driving offense, District Attorneys are generally open to outright dismissals, instead wanting a suspended driver to simply get in compliance rather than continue to drive suspended. Start by dismissing everything that can be dismissed.

2. REDUCE OR AMEND MOVING VIOLATIONS TO NON-MOVING VIOLATIONS. Remember that convictions for moving violations during periods of suspension result in an additional one-year suspension being imposed. The classification of a moving violation versus a non-moving violation depends on whether or not the vehicle had to have been in motion during the offense (not whether it actually was in motion). Non-moving violations – that is, the pleas that you’d be willing to accept instead of the charged moving violations include:

    1. Expired or missing tags;

    2. Improper Equipment;

    3. Failure to notify DMV of address change;

    4. Leaving a vehicle unattended and running;

    5. Parking in a handicapped Zone / Illegal parking;

    6. Driving with an Invalid Vehicle Registration.

DRIVING SCHOOL. Oftentimes, the District Attorney will require completion of a certified driving school in order to modify a moving violation to a non-moving violation. In Mecklenburg County, Improper Equipment is frequently used as a mechanism for the state obtaining a conviction, and the driver pleading to a non-moving violation.

3. USE PRAYERS FOR JUDGMENT CONTINUED (PJC’s) WISELY. Over the years, most of my clients have heard the phrase “PJC,” but very few have ever understood – or, more often than not, have misunderstood – it’s proper definition or use. To be honest, many lawyers I know are unable to properly explain or define a PJC – it’s very unique to North Carolina law, and has a much more limited role than most clients initially believe.

PJC’S MAY ONLY BE GRANTED BY A JUDGE. A PJC may only be obtained from a judge: although a district attorney may agree “not to oppose” a PJC, it cannot be obtained as a result of a plea bargain. In order to receive a PJC, a defendant must plead guilty to the offense, and request that “judgment in this matter be continued.” Some counties are funny: in Cabarrus, I’ve been told that there is a secret phrase that defense counsel must use, such as “we respectfully request the court’s consideration in this matter.” Whatever the secret password is, it must be obtained from a judge directly.

THE ONLY AUTHORIZED PENALTY IS PAYMENT OF COSTS. Once the defendant pleads guilty, the court (in granting a PJC) agrees not to enter judgment (or agrees to suspend judgment indefinitely), thus allowing the defendant to plead guilty, but avoid the collateral consequences of the conviction. By law, the only punishment that can be applied following a PJC is payment of court costs. If a fine is tacked on, or any other penalty whatsoever, than what the defendant obtained is something other than a PJC – even if the judge said “PJC granted, ordered to pay costs plus a ten dollar fine.” In such a situation, defense counsel should ask to approach, and advise the judge that the order to pay the ten-dollar fine results in the entry of judgment and is not a PJC.

AVOIDING CONVICTION’S COLLATERAL CONSEQUENCES. What collateral consequences are avoided by PJC? Additional driving suspensions, DMV points, and insurance points (which result in higher insurance premiums). A driver is allotted one PJC every three years: at the end of the three-year period, if the driver has had no additional PJC’s for traffic issues, the PJC is entered permanently, and the driver receives no additional punishment. For insurance purposes, should the driver receive another PJC for a moving violation, the insurer will ignore both PJC’s and assess all insurance points associated with the violations. For DMV purposes, the upshot of using a PJC on a traffic offense is that DMV will not count the case as a conviction for a moving violation.

LIMITS. PJC’s have limits, a full discussion of which is outside the scope of this article. To learn more, contact our office.

4. PLEA BARGAIN. Having obtained as many dismissals as the state is willing to grant, then having as many moving violations reduced to non-moving violations, and used PJC’s where appropriate, the next step is to plead. Make sure to identify ALL underlying charges before entering into a plea and determine whether the driver was in a period of suspension at the time that each citation was issued.

5. “HAIL MARY” PLAYS, AND EXTRAORDINARY MOTIONS. Sometimes, when you’ve given it your best shot, it’s still not good enough. But there are a few additional tools at defense counsel’s disposal to address certain suspensions that are not remedied by the actions above. Although generally expensive and time consuming, we have been able to use the following tools in the past to mixed results:

  1. Nunc Pro Tunc;

  2. FTA in Error;

  3. Motion for Appropriate Relief (MAR);

  4. Limited Driving Privilege (LDP).
LET’S TALK. For a more in-depth discussion of how these tools may be necessary in your case, or how we may address your suspended driver’s license, contact our office. Pay only for a copy of your driving record, and we will conduct a free case evaluation with you.
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FLETCHER LEGAL HELPS CLIENTS JUST LIKE YOU!

SERIOUS CASES REQUIRE SERIOUS REPRESENTATION. If you or someone you know has questions restoring their firearm rights, or to begin the process of restoring your gun rights now, call FLETCHER LEGAL at 704-747-7262, shoot that number a text, step into our virtual lobby for a video call, or book an appointment now for your free case evaluation. Fletcher Legal has helped clients restore North Carolina firearm rights, appeal from pistol purchase denials, and challenge concealed carry decisions. We conduct independent investigations in every case we take, which reduces denials, and ensures a smooth hearing.

VIRTUAL SERVICES REDUCE CLIENT EXPENSES. Schedule an appointment today to speak with Attorney Fletcher, either by video call, text message, or phone call. We offer flexible payment arrangements, independent investigations, and 24 x 7 emergency services. Book an appointment online now to begin building your defense.

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