GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2005

 

 

SESSION LAW 2006-253

HOUSE BILL 1048

 

 

AN ACT TO PROVIDE: (1) IMPROVED DETECTION OF IMPAIRED DRIVERS ON THE STATE'S ROADS AND HIGHWAYs; (2) IMPROVED METHODS OF DETERMINING HOW UNDERAGE DRIVERS OBTAIN ALCOHOL; (3) PROCEDURES FOR INVESTIGATING, ARRESTING, CHARGING, AND JUDICIAL PROCESSING OF IMPAIRED DRIVING OFFENSES; (4) RULES FOR THE COURTROOM ADMISSION OF EVIDENCE THAT IS RELEVANT TO IMPAIRED DRIVING OFFENSES; (5) CLARIFICATION ON WHEN A DRIVER IS GUILTY OF DRIVING WHILE IMPAIRED; (6) AGGRAVATED PENALTIES FOR OFFENDERS WHO SERIOUSLY INJURE OR KILL WHEN DRIVING WHILE IMPAIRED; (7) A SYSTEM OF REPORTING BY STATE PROSECUTORS AND THE COURTS ON THE DISPOSITION OF IMPAIRED DRIVING OFFENSES; (8) ELECTRONIC MONITORING AFTER AN IMPAIRED DRIVER HAS BEEN RELEASED FROM CONFINEMENT; (9) for the seizure and forfeiture of the vehicle where a person is driving while impaired without a license or insurance; (10) OTHER MEASURES DESIGNED TO IMPROVE THE SAFETY OF THE MOTORING PUBLIC OF NORTH CAROLINA; AND TO PROVIDE THAT THE ACT SHALL BE KNOWN AS "THE MOTOR VEHICLE DRIVER PROTECTION ACT OF 2006."

 

The General Assembly of North Carolina enacts:

 

SECTION 1.  This act shall be known as "THE MOTOR VEHICLE DRIVER PROTECTION ACT OF 2006."

PART I.  REGULATING MALT BEVERAGE KEGS

SECTION 2.  G.S. 18B-101 is amended by adding a new subdivision to read:

"(7b)    "Keg" means a portable container designed to hold and dispense 7.75 gallons or more of  malt beverage."

SECTION 3.1.  Chapter 18B of the General Statutes is amended by adding a new section to read:

" 18B-403.1.  Purchase-transportation permit for keg or kegs of malt beverages.

(a)       Purchase-Transportation. - A person who is not a permittee may purchase and transport for off-premises consumption a keg or kegs as defined in G.S. 18B-101(7b) after obtaining a purchase-transportation permit. Failure to obtain a purchase-transportation permit according to this section is a violation of G.S. 18B-303(b).

(b)       Issuance. - A person holding a permit (permittee) pursuant to G.S. 18B-1001(2) shall issue a purchase-transportation permit for a keg or kegs of malt beverage to a purchaser. A copy of the purchase-transportation permit shall be maintained by the permittee for 90 days. Upon request by any person, the permittee shall maintain the permit for a requested period in excess of 90 days.

(c)       Form. - A purchase-transportation permit shall be issued on a printed form adopted and provided by the Commission. The Commission shall adopt rules specifying the content of the permit form.

(d)       Restrictions on Permit. - A purchase may be made only from the store named on the permit. One copy of the permit shall be kept by the purchaser and one by the permittee from whom the purchase is made. The purchaser shall display his copy of the permit to any law enforcement officer upon request.

(e)       Violation. - The first violation of this section by a permittee shall result in a warning to the permittee."

SECTION 3.2.  G.S. 18B-303(a) reads as rewritten:

"(a)      Purchases Allowed. - Without a permit, a person may purchase at one time:

(1)       Not more than 80 liters of malt beverages, other than draft malt beverages in kegs; beverages, except draft malt beverages in kegs for off-premises consumption. For purchase of a keg or kegs of malt beverages for off-premises consumption, the permit required by G.S. 18B-403.1(a) must first be obtained;

(2)       Any amount of draft malt beverages by a permittee in kegs; kegs for on-premise consumption;

(3)       Not more than 50 liters of unfortified wine;

(4)       Not more than eight liters of either fortified wine or spirituous liquor, or eight liters of the two combined."

PART II.  MODIFYING THE STATUTES ON CHECKING STATIONS AND ROADBLOCKS

SECTION 4.  G.S. 20-16.3A reads as rewritten:

" 20-16.3A.  Impaired driving checks. Checking stations and roadblocks.

(a)       A law-enforcement agency may make impaired driving checks of drivers of vehicles on highways and public vehicular areas if conduct checking stations to determine compliance with the provisions of this Chapter. If the agency is conducting a checking station for the purposes of determining compliance with this Chapter, it must:

(1)       Develops a systematic plan in advance that takes into account the likelihood of detecting impaired drivers, traffic conditions, number of vehicles to be stopped, and the convenience of the motoring public.

(2)       DesignatesDesignate in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to submit to alcohol screening tests to produce drivers license, registration, or insurance information. The plan

(2a)     Operate under a written policy that provides guidelines for the pattern, which need not be in writing. The policy may be either the agency's own policy, or if the agency does not have a written policy, it may be the policy of another law enforcement agency, and may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to submit to an alcohol screening test. to produce drivers license, registration, or insurance information. If officers of a law enforcement agency are operating under another agency's policy, it must be stated in writing.

(3)       Marks the area in which checks are conducted to advise Advise the public that an authorized impaired driving check  checking station is being made operated by having, at a minimum, one law enforcement vehicle with its blue light in operation during the conducting of the checking station.

(b)       An officer who determines there is a reasonable suspicion that an occupant has violated a provision of this Chapter, or any other provision of law, may detain the driver to further investigate in accordance with law. The operator of any vehicle stopped at a checking station established under this subsection may be requested to submit to an alcohol screening test under G.S. 20-16.3 if during the course of the stop the officer determines the driver had previously consumed alcohol or has an open container of alcoholic beverage in the vehicle. The officer so requesting shall consider the results of any alcohol screening test or the driver's refusal in determining if there is reasonable suspicion to investigate further.

(c)       Law enforcement agencies may conduct any type of checking station or roadblock as long as it is established and operated in accordance with the provisions of the United States Constitution and the Constitution of North Carolina.

(d)       The placement of checkpoints should be random or statistically indicated, and agencies shall avoid placing checkpoints repeatedly in the same location or proximity. This subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of a checking station.

This section does not prevent an officer from using the authority of G.S. 20-16.3 to request a screening test if, in the course of dealing  with a driver under the authority of this section, he develops grounds for requesting such a test under G.S. 20-16.3. Alcohol screening tests 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 the authority of a law-enforcement officer or agency to conduct a license check independently or in conjunction with the impaired driving check, to administer psychophysical tests to screen for impairment, or to utilize roadblocks or other types of vehicle checks or checkpoints that are consistent with the laws of this State and the Constitution of North Carolina and of the United States."

PART Iii.  pROVIDING for implied-consent pretrial and court proceedings

SECTION 5.  Chapter 20 of the General Statutes is amended by adding a new Article to read:

"Article 2D.

"Implied-Consent Offense Procedures.

" 20-38.1.  Applicability.

The procedures set forth in this Article shall be followed for the investigation and processing of an implied-consent offense as defined in G.S. 20-16.2. The trial procedures shall apply to any implied-consent offense litigated in the District Court Division.

" 20-38.2.  Investigation.

A law enforcement officer who is investigating an implied-consent offense or a vehicle crash that occurred in the officer's territorial jurisdiction is authorized to investigate and seek evidence of the driver's impairment anywhere in-state or out-of-state, and to make arrests at any place within the State.

" 20-38.3.  Police processing duties.

Upon the arrest of a person, with or without a warrant, but not necessarily in the order listed, a law enforcement officer:

(1)       Shall inform the person arrested of the charges or a cause for the arrest.

(2)       May take the person arrested to any place within the State for one or more chemical analyses at the request of any law enforcement officer and for any evaluation by a law enforcement officer, medical professional, or other person to determine the extent or cause of the person's impairment.

(3)       May take the person arrested to some other place within the State for the purpose of having the person identified, to complete a crash report, or for any other lawful purpose.

(4)       May take photographs and fingerprints in accordance with G.S. 15A-502.

(5)       Shall take the person arrested before a judicial official for an initial appearance after completion of all investigatory procedures, crash reports, chemical analyses, and other procedures provided for in this section.

" 20-38.4.  Initial appearance.

(a)       Appearance Before a Magistrate. - Except as modified in this Article, a magistrate shall follow the procedures set forth in Article 24 of Chapter 15A of the General Statutes.

(1)       A magistrate may hold an initial appearance at any place within the county and shall, to the extent practicable, be available at locations other than the courthouse when it will expedite the initial appearance.

(2)       In determining whether there is probable cause to believe a person is impaired, the magistrate may review all alcohol screening tests, chemical analyses, receive testimony from any law enforcement officer concerning impairment and the circumstances of the arrest, and observe the person arrested.

(3)       If there is a finding of probable cause, the magistrate shall consider whether the person is impaired to the extent that the provisions of G.S. 15A-534.2 should be imposed.

(4)       The magistrate shall also:

a.         Inform the person in writing of the established procedure to have others appear at the jail to observe his condition or to administer an additional chemical analysis if the person is unable to make bond; and

b.         Require the person who is unable to make bond to list all persons he wishes to contact and telephone numbers on a form that sets forth the procedure for contacting the persons listed. A copy of this form shall be filed with the case file.

(b)       The Administrative Office of the Courts shall adopt forms to implement this Article.

" 20-38.5.  Facilities.

(a)       The Chief District Court Judge, the Department of Health and Human Services, the district attorney, and the sheriff shall:

(1)       Establish a written procedure for attorneys and witnesses to have access to the chemical analysis room.

(2)       Approve the location of written notice of implied-consent rights in the chemical analysis room in accordance with G.S. 20-16.2.

(3)       Approve a procedure for access to a person arrested for an implied-consent offense by family and friends or a qualified person contacted by the arrested person to obtain blood or urine when the arrested person is held in custody and unable to obtain pretrial release from jail.

(b)       Signs shall be posted explaining to the public the procedure for obtaining access to the room where the chemical analysis of the breath is administered and to any person arrested for an implied-consent offense. The initial signs shall be provided by the Department of Transportation, without costs. The signs shall thereafter be maintained by the county for all county buildings and the county courthouse.

(c)       If the instrument for performing a chemical analysis of the breath is located in a State or municipal building, then the head of the highway patrol for the county, the chief of police for the city or that person's designee shall be substituted for the sheriff when determining signs and access to the chemical analysis room. The signs shall be maintained by the owner of the building. When a breath testing instrument is in a motor vehicle or at a temporary location, the Department of Health and Human Services shall alone perform the functions listed in subdivisions (a)(1) and (a)(2) of this section.

" 20-38.6.  Motions and district court procedure.

(a)       The defendant may move to suppress evidence or dismiss charges only prior to trial, except the defendant may move to dismiss the charges for insufficient evidence at the close of the State's evidence and at the close of all of the evidence without prior notice. If, during the course of the trial, the defendant discovers facts not previously known, a motion to suppress or dismiss may be made during the trial.

(b)       Upon a motion to suppress or dismiss the charges, other than at the close of the State's evidence or at the close of all the evidence, the State shall be granted reasonable time to procure witnesses or evidence and to conduct research required to defend against the motion.

(c)       The judge shall summarily grant the motion to suppress evidence if the State stipulates that the evidence sought to be suppressed will not be offered in evidence in any criminal action or proceeding against the defendant.

(d)       The judge may summarily deny the motion to suppress evidence if the defendant failed to make the motion pretrial when all material facts were known to the defendant.

(e)       If the motion is not determined summarily, the judge shall make the determination after a hearing and finding of facts. Testimony at the hearing shall be under oath.

(f)        The judge shall set forth in writing the findings of fact and conclusions of law and preliminarily indicate whether the motion should be granted or denied. If the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal.

" 20-38.7.  Appeal to superior court.

(a)       The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. If there is a dispute about the findings of fact, the superior court shall not be bound by the findings of the district court but shall determine the matter de novo. Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes.

(b)       The defendant may not appeal a denial of a pretrial motion to suppress or to dismiss but may appeal upon conviction as provided by law.

(c)       Notwithstanding the provisions of G.S. 15A-1431, for any implied-consent offense that is first tried in district court and that is appealed to superior court by the defendant for a trial de novo as a result of a conviction, the sentence imposed by the district court is vacated upon giving notice of appeal. The case shall only be remanded back to district court with the consent of the prosecutor and the superior court. When an appeal is withdrawn or a case is remanded back to district court, the district court shall hold a new sentencing hearing and shall consider any new convictions and, if the defendant has any pending charges of offenses involving impaired driving, shall delay sentencing in the remanded case until all cases are resolved."

PART iV.  ALLOWING THE ADMISSIBILITY OF DRUG RECOGNITION EXPERTS, HGN TESTIMONY, AND OPINION AS TO SPEED BY AN ACCIDENT RECONSTRUCTION EXPERT

SECTION 6.  G.S. 8C-1, Rule 702 reads as rewritten:

"Rule 702.  Testimony by experts.

(a)       If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.

(a1)     A witness, qualified under subsection (a) of this section and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:

(1)       The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.

(2)       Whether a person was under the influence of one or more impairing substances, and the category of such impairing substance or substances. A witness who has received training and holds a current certification as a Drug Recognition Expert, issued by the State Department of Health and Human Services, shall be qualified to give the testimony under this subdivision.

(i)        A witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash, or has reviewed the report of investigation, with proper foundation may give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving."

PART V.  ALCOHOL SCREENING DEVICES

SECTION 7.  G.S. 20-16.3 reads as rewritten:

" 20-16.3.  Alcohol screening tests required of certain drivers; approval of test devices and manner of use by Commission for Health Services; Department of Health and Human Services; use of test results or refusal.

(a)       When Alcohol Screening Test May Be Required; Not an Arrest. - A law-enforcement officer may require the driver of a vehicle to submit to an alcohol screening test within a relevant time  after the driving if the officer has:

(1)       Reasonable grounds to believe that the driver has consumed alcohol and has:

a.         Committed a moving traffic violation; or

b.         Been involved in an accident or collision; or

(2)       An articulable and reasonable suspicion that the driver has committed an implied-consent offense under G.S. 20-16.2, and the driver has been lawfully stopped for a driver's license check or otherwise lawfully stopped or lawfully encountered by the officer in the course of the performance of the officer's duties.

Requiring a driver to submit to an alcohol screening test in accordance with this section does not in itself constitute an arrest.

(b)       Approval of Screening Devices and Manner of Use. - The Commission for  Health ServicesDepartment of Health and Human Services is directed to examine and approve devices suitable for use by law-enforcement officers in making on-the-scene tests of drivers for alcohol concentration. For each alcohol screening device or class of devices approved, the Commission  Department must adopt regulations governing the manner of use of the device. For any alcohol screening device that tests the breath of a driver, the Commission  Department is directed to specify in its regulations the shortest feasible minimum waiting period that does not produce an unacceptably high number of false positive test results.

(c)       Tests Must Be Made with Approved Devices and in Approved Manner. - No screening test for alcohol concentration is a valid one under this section unless the device used is one approved by the Commission for Health Services  Department and the screening test is conducted in accordance with the applicable regulations of the Commission  Department as to the manner of its use.

(d)       Use of Screening Test Results or Refusal by Officer. - The results of anfact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result, or a driver's refusal to submit may be used by a law-enforcement officer, is admissible in a court, or may also be used by an administrative agency in determining if there are reasonable grounds for believingbelieving:

(1)       thatThat the driver has committed an implied-consent offense under G.S. 20-16.2. G.S. 20-16.2; and

(2)       That the driver had consumed alcohol and that the driver had in his or her body previously consumed alcohol, but not to prove a particular alcohol concentration. Negative or low results on the alcohol screening test may be used in factually appropriate cases by the officer, a court, or an administrative agency in determining whether a person's alleged impairment is caused by an impairing substance other than alcohol. Except as provided in this subsection, the results of an alcohol screening test may not be admitted in evidence in any court or administrative proceeding."

PART VI.  clarification of impaired driving offenses

SECTION 8.  G.S. 20-4.01 reads as rewritten:

" 20-4.01.  Definitions.

Unless the context requires otherwise, the following definitions apply throughout this Chapter to the defined words and phrases and their cognates:

(32)     Public Vehicular Area. - Any area within the State of North Carolina that meets one or more of the following requirements:

a.         The area is generally open to and used by the public for vehicular traffic, traffic at any time, including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley, or parking lot upon the grounds and premises of any of the following:

1.         Any public or private hospital, college, university, school, orphanage, church, or any of the institutions, parks or other facilities maintained and supported by the State of North Carolina or any of its subdivisions.

2.         Any service station, drive-in theater, supermarket, store, restaurant, or office building, or any other business, residential, or municipal establishment providing parking space for customers, patrons, or the public. whether the business or establishment is open or closed.

3.         Any property owned by the United States and subject to the jurisdiction of the State of North Carolina. (The inclusion of property owned by the United States in this definition shall not limit assimilation of North Carolina law when applicable under the provisions of Title 18, United States Code, section 13).

b.         The area is a beach area used by the public for vehicular traffic.

c.         The area is a road opened to used by vehicular traffic within or leading to a subdivision for use by subdivision residents, their guests, and members of the public, subdivision, whether or not the subdivision roads have been offered for dedication to the public.

d.         The area is a portion of private property used for by vehicular traffic and designated by the private property owner as a public vehicular area in accordance with G.S. 20-219.4.

(45)     State. - A state, territory, or possession of the United States, District of Columbia, Commonwealth of Puerto Rico, or a province of Canada.a province of Canada, or the Sovereign Nation of the Eastern Band of the Cherokee Indians with tribal lands, as defined in 18 U.S.C. 1151, located within the boundaries of the State of North Carolina.

"

SECTION 9.  G.S. 20-138.1 reads as rewritten:

" 20-138.1.  Impaired driving.

(a)       Offense. - 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:

(1)       While under the influence of an impairing substance; or

(2)       After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or

(3)       With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

(a1)     A person who has submitted to a chemical analysis of a blood sample, pursuant to G.S. 20-139.1(d), may use the result in rebuttal as evidence that the person did not have, at a relevant time after driving, an alcohol concentration of 0.08 or more.

(b)       Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.

(b1)     Defense Allowed. - Nothing in this section shall preclude a person from asserting that a chemical analysis result is inadmissible pursuant to G.S. 20-139.1(b2).

(c)       Pleading. - In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.

(d)       Sentencing Hearing and Punishment. - Impaired driving as defined in this section is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge must shall hold a sentencing hearing and impose punishment in accordance with G.S. 20-179.

(e)       Exception. - Notwithstanding the definition of "vehicle" pursuant to G.S. 20-4.01(49), for purposes of this section the word "vehicle" does not include a horse, bicycle, or lawnmower.horse."

SECTION 10.  G.S. 20-138.2 reads as rewritten:

"(a)      Offense. - A person commits the offense of impaired driving in a commercial motor vehicle if he drives a commercial motor vehicle upon any highway, any street, or any public vehicular area within the State:

(1)       While under the influence of an impairing substance; or

(2)       After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.04 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or

(3)       With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

(a1)     A person who has submitted to a chemical analysis of a blood sample, pursuant to G.S. 20-139.1(d), may use the result in rebuttal as evidence that the person did not have, at a relevant time after driving, an alcohol concentration of 0.04 or more.

(a2)     In order to prove the gross vehicle weight rating of a vehicle as defined in G.S. 20-4.01(12b), the opinion of a person who observed the vehicle as to the weight, the testimony of the gross vehicle weight rating affixed to the vehicle, the registered or declared weight shown on the Division's records pursuant to G.S. 20-26(b1), the gross vehicle weight rating as determined from the vehicle identification number, the listed gross weight publications from the manufacturer of the vehicle, or any other description or evidence shall be admissible.

(b)       Defense Precluded. - The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.

(b1)     Defense Allowed. - Nothing in this section shall preclude a person from asserting that a chemical analysis result is inadmissible pursuant to G.S. 20-139.1(b2).

"

SECTION 11.  G.S. 20-138.3(b2) reads as rewritten:

" 20-138.3. Driving by person less than 21 years old after consuming alcohol or drugs.

(b2)     Alcohol Screening Test. - Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violation of subsection (a) of this section, and the results of an alcohol screening test or the driver's refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver's body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, Department of Health and Human Services, and the screening test is conducted in accordance with the applicable regulations of the CommissionDepartment as to its manner and use."

SECTION 12.  G.S. 20-138.5(a) reads as rewritten:

"(a)      A person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within seven 10 years of the date of this offense."

SECTION 13.  G.S. 20-138.5(c) reads as rewritten:

"(c)      An offense under this section is an implied consent offense subject to the provisions of G.S. 20-16.2. The provisions of G.S. 20-139.1 shall apply to an offense committed under this section."

PART VII.  felony death by vehicle and injury by vehicle

SECTION 14.  G.S. 20-141.4 reads as rewritten:

" 20-141.4.  Felony and misdemeanor death by vehicle.vehicle; felony serious injury by vehicle; aggravated offenses; repeat felony death by vehicle.

(a)       Repealed by Session Laws 1983, c. 435, s. 27.

(a1)     Felony Death by Vehicle. - A person commits the offense of felony death by vehicle if he unintentionally causes the death of another person while engaged in the 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 death.if:

(1)       The person unintentionally causes the death of another person,

(2)       The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and

(3)       The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death.

(a2)     Misdemeanor Death by Vehicle. - A person commits the offense of misdemeanor death by vehicle if he unintentionally causes the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic, other than impaired driving under G.S. 20-138.1, and commission of that violation is the proximate cause of the death.if:

(1)       The person unintentionally causes the death of another person,

(2)       The person was engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic, other than impaired driving under G.S. 20-138.1, and

(3)       The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death.

(a3)     Felony Serious Injury by Vehicle. - A person commits the offense of felony serious injury by vehicle if:

(1)       The person unintentionally causes serious injury to another person,

(2)       The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and

(3)       The commission of the offense in subdivision (2) of this subsection is the proximate cause of the serious injury.

(a4)     Aggravated Felony Serious Injury by Vehicle. - A person commits the offense of aggravated felony serious injury by vehicle if:

(1)       The person unintentionally causes serious injury to another person,

(2)       The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2,

(3)       The commission of the offense in subdivision (2) of this subsection is the proximate cause of the serious injury, and

(4)       The person has a previous conviction involving impaired driving, as defined in G.S. 20-4.01(24a), within seven years of the date of the offense.

(a5)     Aggravated Felony Death by Vehicle. - A person commits the offense of aggravated felony death by vehicle if:

(1)       The person unintentionally causes the death of another person,

(2)       The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2,

(3)       The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death, and

(4)       The person has a previous conviction involving impaired driving, as defined in G.S. 20-4.01(24a), within seven years of the date of the offense.

(a6)     Repeat Felony Death by Vehicle Offender. - A person who commits an offense under Subsection (a1) or Subsection (a5) of this section, and who has a previous conviction under

(1)       Subsection (a1) of this section; or

(2)       Subsection (a5) of this section; or

(3)       G.S. 14-17 or G.S. 14-18, where the basis of that former conviction, as determined from the face of the indictment, was the unintentional death of another person while engaged in the offense of impaired driving under GS 20-138.1 or GS 20-138.2,

shall be subject to the same sentence as if the person had been convicted of second degree murder.

(b)       Punishments. - Unless the conduct is covered under some other provision of law providing greater punishment, the following classifications apply to the offenses set forth in this section:

(1)       Aggravated felony death by vehicle is a Class D felony.

(2)       Felony death by vehicle is a Class E felony.

(3)       Aggravated felony serious injury by vehicle is a Class E felony.

(4)       Felony serious injury by vehicle is a Class F felony.

(5)       Misdemeanor death by vehicle is a Class 1 misdemeanor.Felony death by vehicle is a Class G felony. Misdemeanor death by vehicle is a Class 1 misdemeanor.

(c)       No Double Prosecutions. - No person who has been placed in jeopardy upon a charge of death by vehicle may be prosecuted for the offense of manslaughter arising out of the same death; and no person who has been placed in jeopardy upon a charge of manslaughter may be prosecuted for death by vehicle arising out of the same death."

PART VIII.  clarifying and simplifying the implied-consent law

SECTION 15.  G.S. 20-16.2 reads as rewritten:

" 20-16.2.  Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.

(a)       Basis for Charging Officer to Require Chemical Analysis; Notification of Rights. - Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. The charging officer shall designate the type of chemical analysis to be administered, and it may be administered when the officer Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense.offense may obtain a chemical analysis of the person.

Except as provided in this subsection or subsection (b), before Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person's breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

(1)       The person has a right to refuse to be tested.You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

(2)       Refusal to take any required test or tests will result in an immediate revocation of the person's driving privilege for at least 30 days and an additional 12-month revocation by the Division of Motor Vehicles.

(3)       The test results, or the fact of the person'syour refusal, will be admissible in evidence at trial on the offense charged.trial.

(4)       The person's Your driving privilege will be revoked immediately for at least 30 days if: if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

a.         The test reveals an alcohol concentration of 0.08 or more;

b.         The person was driving a commercial motor vehicle and the test reveals an alcohol concentration of 0.04 or more; or

c.         The person is under 21 years of age and the test reveals any alcohol concentration.

(5)       The person may choose a qualified person to administer a chemical test or tests in addition to any test administered at the direction of the charging officer.After you are released, you may seek your own test in addition to this test.

(6)       The person has the right to You may call an attorney for advice and select a witness to view for him or her the testing procedures, procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time when the person you is are notified of his or her of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.

If the charging officer or an arresting officer is authorized to administer a chemical analysis of a person's breath, the charging officer or the arresting officer may give the person charged the oral and written notice of rights required by this subsection. This authority applies regardless of the type of chemical analysis designated.

(a1)     Meaning of Terms. - Under this section, an "implied-consent offense" is an offense involving impaired driving or an alcohol-related offense made subject to the procedures of this section. A person is "charged" with an offense if the person is arrested for it or if criminal process for the offense has been issued. A "charging officer" is a law-enforcement officer who arrests the person charged, lodges the charge, or assists the officer who arrested the person or lodged the charge by assuming custody of the person to make the request required by subsection (c) and, if necessary, to present the person to a judicial official for an initial appearance.

(b)       Unconscious Person May Be Tested. - If a charging law enforcement officer has reasonable grounds to believe that a person has committed an implied-consent offense, and the person is unconscious or otherwise in a condition that makes the person incapable of refusal, the charging law enforcement officer may direct the taking of a blood sample by a person qualified under G.S. 20-139.1 or may direct the administration of any other chemical analysis that may be effectively performed. In this instance the notification of rights set out in subsection (a) and the request required by subsection (c) are not necessary.

(c)       Request to Submit to Chemical Analysis. - The charging A law enforcement officer, officer or chemical analyst in the presence of the chemical analyst who has notified the person of his or her rights under subsection (a), must shall designate the type of test or tests to be given and may request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.

(c1)     Procedure for Reporting Results and Refusal to Division. - Whenever a person refuses to submit to a chemical analysis analysis, a person has an alcohol concentration of 0.16 or more, or a person's drivers license has an alcohol concentration restriction and the results of the chemical analysis establish a violation of the restriction, the charging law enforcement officer and the chemical analyst must shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating that:

(1)       The person was charged with an implied-consent offense or had an alcohol concentration restriction on the drivers license;

(2)       The charging officer A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(3)       Whether the implied-consent offense charged involved death or critical injury to another person, if the person willfully refused to submit to chemical analysis;

(4)       The person was notified of the rights in subsection (a); and

(5)       The results of any tests given or that the person willfully refused to submit to a chemical analysis upon the request of the charging officer.analysis.

If the person's drivers license has an alcohol concentration restriction, pursuant to G.S. 20-19(c3), and an officer has reasonable grounds to believe the person has violated a provision of that restriction other than violation of the alcohol concentration level, the charging officer and chemical analyst shall complete the applicable sections of the affidavit and indicate the restriction which was violated. The charging officer must shall immediately mail the affidavit(s) to the Division. If the charging officer is also the chemical analyst who has notified the person of the rights under subsection (a), the charging officer may perform alone the duties of this subsection.

(d)       Consequences of Refusal; Right to Hearing before Division; Issues. - Upon receipt of a properly executed affidavit required by subsection (c1), the Division must shall expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division. Except for the time referred to in G.S. 20-16.5, if the person shows to the satisfaction of the Division that his or her license was surrendered to the court, and remained in the court's possession, then the Division shall credit the amount of time for which the license was in the possession of the court against the 12-month revocation period required by this subsection. If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws the request, or the person fails to appear at a scheduled hearing. The hearing officer may subpoena any witnesses or documents that the hearing officer deems necessary. The person may request the hearing officer to subpoena the charging officer, the chemical analyst, or both to appear at the hearing if the person makes the request in writing at least three days before the hearing. The person may subpoena any other witness whom the person deems necessary, and the provisions of G.S. 1A-1, Rule 45, apply to the issuance and service of all subpoenas issued under the authority of this section. The hearing officer is authorized to administer oaths to witnesses appearing at the hearing. The hearing must shall be conducted in the county where the charge was brought, and must shall be limited to consideration of whether:

(1)       The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;

(2)       The charging A law enforcement officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(3)       The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;

(4)       The person was notified of the person's rights as required by subsection (a); and

(5)       The person willfully refused to submit to a chemical analysis upon the request of the charging officer.analysis.

If the Division finds that the conditions specified in this subsection are met, it must shall order the revocation sustained. If the Division finds that any of the conditions (1), (2), (4), or (5) is not met, it must shall rescind the revocation. If it finds that condition (3) is alleged in the affidavit but is not met, it must shall order the revocation sustained if that is the only condition that is not met; in this instance subsection (d1) does not apply to that revocation. If the revocation is sustained, the person must shall surrender his or her license immediately upon notification by the Division.

(d1)     Consequences of Refusal in Case Involving Death or Critical Injury. - If the refusal occurred in a case involving death or critical injury to another person, no limited driving privilege may be issued. The 12-month revocation begins only after all other periods of revocation have terminated unless the person's license is revoked under G.S. 20-28, 20-28.1, 20-19(d), or 20-19(e). If the revocation is based on those sections, the revocation under this subsection begins at the time and in the manner specified in subsection (d) for revocations under this section. However, the person's eligibility for a hearing to determine if the revocation under those sections should be rescinded is postponed for one year from the date on which the person would otherwise have been eligible for such a the hearing. If the person's driver's license is again revoked while the 12-month revocation under this subsection is in effect, that revocation, whether imposed by a court or by the Division, may only take effect after the period of revocation under this subsection has terminated.

(e)       Right to Hearing in Superior Court. - If the revocation for a willful refusal is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court for a hearing de novo upon the issues listed in subsection (d), in the same manner and under the same conditions as provided in G.S. 20-25 except that the de novo hearing is conducted in the superior court district or set of districts as defined in G.S. 7A-41.1 where the charge was made.on the record. The superior court review shall be limited to whether there is sufficient evidence in the record to support the Commissioner's findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.

(e1)     Limited Driving Privilege after Six Months in Certain Instances. - A person whose driver's license has been revoked under this section may apply for and a judge authorized to do so by this subsection may issue a limited driving privilege if:

(1)       At the time of the refusal the person held either a valid drivers license or a license that had been expired for less than one year;

(2)       At the time of the refusal, the person had not within the preceding seven years been convicted of an offense involving impaired driving;

(3)       At the time of the refusal, the person had not in the preceding seven years willfully refused to submit to a chemical analysis under this section;

(4)       The implied consent offense charged did not involve death or critical injury to another person;

(5)       The underlying charge for which the defendant was requested to submit to a chemical analysis has been finally disposed of:

a.         Other than by conviction; or

b.         By a conviction of impaired driving under G.S. 20-138.1, at a punishment level authorizing issuance of a limited driving privilege under G.S. 20-179.3(b), and the defendant has complied with at least one of the mandatory conditions of probation listed for the punishment level under which the defendant was sentenced;

(6)       Subsequent to the refusal the person has had no unresolved pending charges for or additional convictions of an offense involving impaired driving;

(7)       The person's license has been revoked for at least six months for the refusal; and

(8)       The person has obtained a substance abuse assessment from a mental health facility and successfully completed any recommended training or treatment program.

Except as modified in this subsection, the provisions of G.S. 20-179.3 relating to the procedure for application and conduct of the hearing and the restrictions required or authorized to be included in the limited driving privilege apply to applications under this subsection. If the case was finally disposed of in the district court, the hearing shall be conducted in the district court district as defined in G.S. 7A-133 in which the refusal occurred by a district court judge. If the case was finally disposed of in the superior court, the hearing shall be conducted in the superior court district or set of districts as defined in G.S. 7A-41.1 in which the refusal occurred by a superior court judge. A limited driving privilege issued under this section authorizes a person to drive if the person's license is revoked solely under this section or solely under this section and G.S. 20-17(2). If the person's license is revoked for any other reason, the limited driving privilege is invalid.

(f)        Notice to Other States as to Nonresidents. - When it has been finally determined under the procedures of this section that a nonresident's privilege to drive a motor vehicle in this State has been revoked, the Division must shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.

(g)       Repealed by Session Laws 1973, c. 914.

(h)       Repealed by Session Laws 1979, c. 423, s. 2.

(i)        Right to Chemical Analysis before Arrest or Charge. - A person stopped or questioned by a law enforcement officer who is investigating whether the person may have committed an implied consent offense may request the administration of a chemical analysis before any arrest or other charge is made for the offense. Upon this request, the officer shall afford the person the opportunity to have a chemical analysis of his or her breath, if available, in accordance with the procedures required by G.S. 20-139.1(b). The request constitutes the person's consent to be transported by the law enforcement officer to the place where the chemical analysis is to be administered. Before the chemical analysis is made, the person shall confirm the request in writing and shall be notified:

(1)       That the test results will be admissible in evidence and may be used against the personyou in any implied consent offense that may arise;

(2)       That the person's license will be revoked for at least 30 days if:

a.         The test reveals an alcohol concentration of 0.08 or more; or

b.         The person was driving a commercial motor vehicle and the test results reveal an alcohol concentration of 0.04 or more; or

c.         The person is under 21 years of age and the test reveals any alcohol concentration.

Your driving privilege will be revoked immediately for at least 30 days

if the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.

(3)       That if the person failsyou fail to comply fully with the test procedures, the officer may charge the personyou with any offense for which the officer has probable cause, and if the person isyou are charged with an implied consent offense, the person'syour refusal to submit to the testing required as a result of that charge would result in revocation of the person's driver's license.your driving privilege. The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant."

PART iX.  admissibility of chemical analyses

SECTION 16.  G.S. 20-139.1 reads as rewritten:

" 20-139.1.  Procedures governing chemical analyses; admissibility; evidentiary provisions; controlled-drinking programs.

(a)       Chemical Analysis Admissible. - In any implied-consent offense under G.S. 20-16.2, a person's alcohol concentration or the presence of any other impairing substance in the person's body as shown by a chemical analysis is admissible in evidence. This section does not limit the introduction of other competent evidence as to a person's alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests.

(b)       Approval of Valid Test Methods; Licensing Chemical Analysts. - A The results of a chemical analysis, to be valid, shall be analysis shall be deemed sufficient evidence to prove a person's alcohol concentration. A chemical analysis of the breath administered pursuant to the implied-consent law is admissible in any court or administrative hearing or proceeding if it meets both of the following requirements:

(1)       It is performed in accordance with the provisions of this section. The chemical analysis shall be performed according to methods approved by the Commission for Health Services by an individual possessing rules of the Department of Health and Human Services.

(2)       The person performing the analysis had, at the time of the analysis, a current permit issued by the Department of Health and Human Services authorizing the person to perform a test of the breath using the type of instrument employed. for that type of chemical analysis.

For purposes of establishing compliance with subdivision (b)(1) of this section, the court or administrative agency shall take notice of the rules of the Department of Health and Human Services. For purposes of establishing compliance with subdivision (b)(2) of this section, the court or administrative agency shall take judicial notice of the list of permits issued to the person performing the analysis, the type of instrument on which the person is authorized to perform tests of the breath, and the date the permit was issued. The Commission for Health Services may adopt rules approving satisfactory methods or techniques for performing chemical analyses, and the Department of Health and Human Services may ascertain the qualifications and competence of individuals to conduct particular chemical analyses. analyses and the methods for conducting chemical analyses. The Department may issue permits to conduct chemical analyses to individuals it finds qualified subject to periodic renewal, termination, and revocation of the permit in the Department's discretion.

(b1)     When Officer May Perform Chemical Analysis. - Except as provided in this subsection, a chemical analysis is not valid in any case in which it is performed by an arresting officer or by a charging officer under the terms of G.S. 20-16.2. A chemical analysis of the breath may be performed by an arresting officer or by a charging officer when both of the following apply:

(1)       The officer possesses a current permit issued by the Department of Health and Human Services for the type of chemical analysis.

(2)       The officer performs the chemical analysis by using an automated instrument that prints the results of the analysis.

Any person possessing a current permit authorizing the person to perform chemical analysis may perform a chemical analysis.

(b2)     Breath Analysis Results Inadmissible if Preventive Maintenance Not Performed. Maintenance. - The Department of Health and Human Services shall perform preventive maintenance on breath-testing instruments used for chemical analysis. A court or administrative agency shall take judicial notice of the preventive maintenance records of the Department. Notwithstanding the provisions of subsection (b), the results of a chemical analysis of a person's breath performed in accordance with this section are not admissible in evidence if:

(1)       The defendant objects to the introduction into evidence of the results of the chemical analysis of the defendant's breath; and

(2)       The defendant demonstrates that, with respect to the instrument used to analyze the defendant's breath, preventive maintenance procedures required by the regulations of the Commission for Health Services Department of Health and Human Services had not been performed within the time limits prescribed by those regulations.

(b3)     Sequential Breath Tests Required. - By January 1, 1985, the regulations of the Commission for Health Services The methods governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples. The results of the chemical analysis of all breath samples are admissible if the test results from any two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than 0.02. Only the lower of the two test results of the consecutively administered tests can be used to prove a particular alcohol concentration. Those regulations must provide:

(1)       A specification as to the minimum observation period before collection of the first breath sample and the time requirements as to collection of second and subsequent samples.

(2)       That the test results may only be used to prove a person's particular alcohol concentration if:

a.         The pair of readings employed are from consecutively administered tests; and

b.         The readings do not differ from each other by an alcohol concentration greater than 0.02.

(3)       That when a pair of analyses meets the requirements of subdivision (2), only the lower of the two readings may be used by the State as proof of a person's alcohol concentration in any court or administrative proceeding.

A person's refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under G.S. 20-16.2(c).

A person's refusal to give the second or subsequent breath sample shall make the result of the first breath sample, or the result of the sample providing the lowest alcohol concentration if more than one breath sample is provided, admissible in any judicial or administrative hearing for any relevant purpose, including the establishment that a person had a particular alcohol concentration for conviction of an offense involving impaired driving.

(b4)     Introducing Routine Records Kept as Part of Breath-Testing Program. - In civil and criminal proceedings, any party may introduce, without further authentication, simulator logs and logs for other devices used to verify a breath-testing instrument, certificates and other records concerning the check of ampoules and of simulator stock solution and the stock solution used in any other equilibration device, preventive maintenance records, and other records that are routinely kept concerning the maintenance and operation of breath-testing instruments. In a criminal case, however, this subsection does not authorize the State to introduce records to prove the results of a chemical analysis of the defendant or of any validation test of the instrument that is conducted during that chemical analysis.

(b5)     Subsequent Tests Allowed. - A person may be requested, pursuant to G.S. 20-16.2, to submit to a chemical analysis of the person's blood or other bodily fluid or substance in addition to or in lieu of a chemical analysis of the breath, in the discretion of the charging a law enforcement officer. If a subsequent chemical analysis is requested pursuant to this subsection, the person shall again be advised of the implied consent rights in accordance with G.S. 20-16.2(a). A person's willful refusal to submit to a chemical analysis of the blood or other bodily fluid or substance is a willful refusal under G.S. 20-16.2.

(b6)     The Department of Health and Human Services shall post on a Web page and file with the clerk of superior court in each county a list of all persons who have a permit authorizing them to perform chemical analyses, the types of analyses that they can perform, the instruments that each person is authorized to operate, the effective dates of the permits, and the records of preventive maintenance. A court shall take judicial notice of whether, at the time of the chemical analysis, the chemical analyst possessed a permit authorizing the chemical analyst to perform the chemical analysis administered and whether preventive maintenance had been performed on the breath-testing instrument in accordance with the Department's rules.

(c)       Withdrawal of Blood and Urine for Chemical Analysis. - Notwithstanding any other provision of law, When when a blood or urine test is specified as the type of chemical analysis by the charging a law enforcement officer, only a physician, registered nurse, emergency medical technician, or other qualified person may shall withdraw the blood sample. sample and obtain the urine sample, and no further authorization or approval is required. If the person withdrawing the blood or collecting the urine requests written confirmation of the charging law enforcement officer's request for the withdrawal of blood, blood or collecting the urine, the officer shall furnish it before blood is withdrawn. withdrawn or urine collected. When blood is withdrawn or urine collected pursuant to a charging law enforcement officer's request, neither the person withdrawing the blood nor any hospital, laboratory, or other institution, person, firm, or corporation employing that person, or contracting for the service of withdrawing blood, may be held criminally or civilly liable by reason of withdrawing that blood, except that there is no immunity from liability for negligent acts or omissions.

The chemical analyst who analyzes the blood shall complete an affidavit stating the results of the analysis on a form developed by the Department of Health and Human Services and provide the affidavit to the charging officer and the clerk of superior court in the county in which the criminal charges are pending.

Evidence regarding the qualifications of the person who withdrew the blood sample may be provided at trial by testimony of the charging officer or by an affidavit of the person who withdrew the blood sample and shall be sufficient to constitute prima facie evidence regarding the person's qualifications.

(c1)     Admissibility. - The results of a chemical analysis of blood or urine by the North Carolina State Bureau of Investigation Laboratory, the Charlotte, North Carolina, Police Department Laboratory, or any other laboratory approved for chemical analysis by the Department of Health and Human Services, are admissible as evidence in all administrative hearings, and in any court, without further authentication. The results shall be certified by the person who performed the analysis, and reported on a form approved by the Attorney General. However, if the defendant notifies the State, at least five days before trial in the superior court division or an adjudicatory hearing in juvenile court that the defendant objects to the introduction of the report into evidence, the admissibility of the report shall be determined and governed by the appropriate rules of evidence.

The report containing the results of any blood or urine test may be transmitted electronically or via facsimile. A copy of the affidavit sent electronically or via facsimile shall be admissible in any court or administrative hearing without further authentication. A copy of the report shall be sent to the charging officer, the clerk of superior court in the county in which the criminal charges are pending, the Division of Motor Vehicles, and the Department of Health and Human Services.

Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the report.

(c2)     A chemical analysis of blood or urine, to be admissible under this section, shall be performed in accordance with rules or procedures adopted by the State Bureau of Investigation, or by another laboratory certified by the American Society of Crime Laboratory Directors (ASCLD), for the submission, identification, analysis, and storage of forensic analyses.

(c3)     Procedure for Establishing Chain of Custody Without Calling Unnecessary Witnesses. -

(1)       For the purpose of establishing the chain of physical custody or control of blood or urine tested or analyzed to determine whether it contains alcohol, a controlled substance or its metabolite, or any impairing substance, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.

(2)       The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received. The statement may be placed on the same document as the report provided for in subsection (c1) of this section.

(3)       The provisions of this subsection may be utilized in any administrative hearing and by the State in district court, but can only be utilized in a case originally tried in superior court or an adjudicatory hearing in juvenile court if the defendant fails to notify the State at least five days before trial that the defendant objects to the introduction of the statement into evidence.

(4)       Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the statement.

(c4)     The results of a blood or urine test are admissible to prove a person's alcohol concentration or the presence of controlled substances or metabolites or any other impairing substance if:

(1)       A law enforcement officer or chemical analyst requested a blood and/or urine sample from the person charged; and

(2)       A chemical analysis of the person's blood was performed by a chemical analyst possessing a permit issued by the Department of Health and Human Services authorizing the chemical analyst to analyze blood or urine for alcohol or controlled substances, metabolites of a controlled substance, or any other impairing substance.

For purposes of establishing compliance with subdivision (2) of this subsection, the court or administrative agency shall take judicial notice of the list of persons possessing permits, the type of instrument on which each person is authorized to perform tests of the blood and/or urine, and the date the permit was issued and the date it expires.

(d)       Right to Additional Test. - A person who submits to a chemical analysis may have a qualified person of his own choosing administer an additional chemical test or tests, or have a qualified person withdraw a blood sample for later chemical testing by a qualified person of his own choosing. Any law-enforcement officer having in his charge any person who has submitted to a chemical analysis shall assist the person in contacting someone to administer the additional testing or to withdraw blood, and shall allow access to the person for that purpose. Nothing in this section shall be construed to prohibit a person from obtaining or attempting to obtain an additional chemical analysis. If the person is not released from custody after the initial appearance, the agency having custody of the person shall make reasonable efforts in a timely manner to assist the person in obtaining access to a telephone to arrange for any additional test and allow access to the person in accordance with the agreed procedure in G.S. 20-38.4. The failure or inability of the person who submitted to a chemical analysis to obtain any additional test or to withdraw blood does not preclude the admission of evidence relating to the chemical analysis.

(d1)     Right to Require Additional Tests. - If a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person's blood or urine.

(d2)     Notwithstanding any other provision of law, when a blood or urine sample is requested under subsection (d1) of this section by a law enforcement officer, a physician, registered nurse, emergency medical technician, or other qualified person shall withdraw the blood and obtain the urine sample, and no further authorization or approval is required. If the person withdrawing the blood or collecting the urine requests written confirmation of the charging officer's request for the withdrawal of blood or obtaining urine, the officer shall furnish it before blood is withdrawn or urine obtained.

(d3)     When blood is withdrawn or urine collected pursuant to a law enforcement officer's request, neither the person withdrawing the blood nor any hospital, laboratory, or other institution, person, firm, or corporation employing that person, or contracting for the service of withdrawing blood, may be held criminally or civilly liable by reason of withdrawing that blood, except that there is no immunity from liability for negligent acts or omissions. The results of the analysis of blood or urine under this subsection shall be admissible if performed by the State Bureau of Investigation Laboratory or any other hospital or qualified laboratory.

(e)       Recording Results of Chemical Analysis of Breath. - The chemical analyst who administers a test of a person's breath shall record the following information after making any chemical analysis:

(1)       The alcohol concentration or concentrations revealed by the chemical analysis.

(2)       The time of the collection of the breath sample or samples used in the chemical analysis.

A copy of the record of this information shall be furnished to the person submitting to the chemical analysis, or to his attorney, before any trial or proceeding in which the results of the chemical analysis may be used. A person charged with an implied-consent offense who has not received, prior to a trial, a copy of the chemical analysis results the State intends to offer into evidence may request in writing a copy of the results. The failure to provide a copy prior to any trial shall be grounds for a continuance of the case but shall not be grounds to suppress the results of the chemical analysis or to dismiss the criminal charges.

(e1)     Use of Chemical Analyst's Affidavit in District Court. - An affidavit by a chemical analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any hearing or trial in the District Court Division of the General Court of Justice with respect to the following matters:

(1)       The alcohol concentration or concentrations or the presence or absence of an impairing substance of a person given a chemical analysis and who is involved in the hearing or trial.

(2)       The time of the collection of the blood, breath, or other bodily fluid or substance sample or samples for the chemical analysis.

(3)       The type of chemical analysis administered and the procedures followed.

(4)       The type and status of any permit issued by the Department of Health and Human Services that the analyst held on the date the analyst performed the chemical analysis in question.

(5)       If the chemical analysis is performed on a breath-testing instrument for which regulations adopted pursuant to subsection (b) require preventive maintenance, the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown on the maintenance records for that instrument.

The Department of Health and Human Services shall develop a form for use by chemical analysts in making this affidavit. If any person who submitted to a chemical analysis desires that a chemical analyst personally testify in the hearing or trial in the District Court Division, the person may subpoena the chemical analyst and examine him as if he were an adverse witness. A subpoena for a chemical analyst shall not be issued unless the person files in writing with the court and serves a copy on the district attorney at least five days prior to trial an affidavit specifying the factual grounds on which the person believes the chemical analysis was not properly administered and the facts that the chemical analyst will testify about and stating that the presence of the analyst is necessary for the proper defense of the case. The district court shall determine if there are grounds to believe that the presence of the analyst requested is necessary for the proper defense. If so, the case shall be continued until the analyst can be present. The criminal case shall not be dismissed due to the failure of the analyst to appear, unless the analyst willfully fails to appear after being ordered to appear by the court.

(f)        Evidence of Refusal Admissible. - If any person charged with an implied-consent offense refuses to submit to a chemical analysis, analysis or to perform field sobriety tests at the request of an officer, evidence of that refusal is admissible in any criminal criminal, civil, or administrative action against him for an implied-consent offense under G.S. 20-16.2.the person.

(g)       Controlled-Drinking Programs. - The Department of Health and Human Services may adopt rules concerning the ingestion of controlled amounts of alcohol by individuals submitting to chemical testing as a part of scientific, experimental, educational, or demonstration programs. These regulations shall prescribe procedures consistent with controlling federal law governing the acquisition, transportation, possession, storage, administration, and disposition of alcohol intended for use in the programs. Any person in charge of a controlled-drinking program who acquires alcohol under these regulations must keep records accounting for the disposition of all alcohol acquired, and the records must at all reasonable times be available for inspection upon the request of any federal, State, or local law-enforcement officer with jurisdiction over the laws relating to control of alcohol. A controlled-drinking program exclusively using lawfully purchased alcoholic beverages in places in which they may be lawfully possessed, however, need not comply with the record-keeping requirements of the regulations authorized by this subsection. All acts pursuant to the regulations reasonably done in furtherance of bona fide objectives of a controlled-drinking program authorized by the regulations are lawful notwithstanding the provisions of any other general or local statute, regulation, or ordinance controlling alcohol."

PART X.  improved access to medical records in impaired driving cases

SECTION 17.  Chapter 90 of the General Statutes is amended by adding a new section to read:

" 90-21.20B.  Access to medical information for law enforcement purposes.

(a)       Notwithstanding any other provision of law, if a person is involved in a vehicle crash:

(1)       Any health care provider who is providing medical treatment to the person shall, upon request, disclose to any law enforcement officer investigating the crash the following information about the person: name, current location, and whether the person appears to be impaired by alcohol, drugs, or another substance.

(2)       Law enforcement officers shall be provided access to visit and interview the person upon request, except when the health care provider requests temporary privacy for medical reasons.

(3)       A health care provider shall disclose a certified copy of all identifiable health information related to that person as specified in a search warrant or an order issued by a judicial official.

(b)       A prosecutor or law enforcement officer receiving identifiable health information under this section shall not disclose this information to others except as necessary to the investigation or otherwise allowed by law.

(c)       A certified copy of identifiable health information, if relevant, shall be admissible in any hearing or trial without further authentication.

(d)       As used in this section, "health care provider" has the same meaning as in G.S. 90-21.11."

SECTION 18.  G.S. 8-53.1 reads as rewritten:

" 8-53.1.  Physician-patient and nurse privilege waived in child abuse.abuse; disclosure of information in impaired driving accident cases.

(a)       Notwithstanding the provisions of G.S. 8-53 and G.S. 8-53.13, the physician-patient or nurse privilege shall not be a ground for excluding evidence regarding the abuse or neglect of a child under the age of 16 years or regarding an illness of or injuries to such child or the cause thereof in any judicial proceeding related to a report pursuant to the North Carolina Juvenile Code, Chapter 7B of the General Statutes of North Carolina.

(b)       Nothing in this Article shall preclude a health care provider, as defined in G.S. 90-21.11, from disclosing information to a law enforcement agency investigating a vehicle crash under the provisions of G.S. 90-21.20B."

PART XI.  PROSECUTOR REPORTING WHEN IMPLIED-CONSENT CASE IS DISMISSED

SECTION 19.  G.S. 20-138.4 reads as rewritten:

" 20-138.4.  Requirement that prosecutor explain reduction or dismissal of charge involving impaired driving.

(a)       Any prosecutor must shall enter detailed facts in the record of any case involving impaired driving subject to the implied-consent law or involving driving while license revoked for impaired driving as defined in G.S. 20-28.2 explaining orally in open court and in writing the reasons for his action if he:

(1)       Enters a voluntary dismissal; or

(2)       Accepts a plea of guilty or no contest to a lesser included offense; or

(3)       Substitutes another charge, by statement of charges or otherwise, if the substitute charge carries a lesser mandatory minimum punishment or is not an offense involving impaired driving; or

(4)       Otherwise takes a discretionary action that effectively dismisses or reduces the original charge in the case involving impaired driving.

General explanations such as "interests of justice" or "insufficient evidence" are not sufficiently detailed to meet the requirements of this section.

(b)       The written explanation shall be signed by the prosecutor taking the action on a form approved by the Administrative Office of the Courts and shall contain, at a minimum:

(1)       The alcohol concentration or the fact that the driver refused.

(2)       A list of all prior convictions of implied-consent offenses or driving while license revoked.

(3)       Whether the driver had a valid drivers license or privilege to drive in this State as indicated by the Division's records.

(4)       A statement that a check of the database of the Administrative Office of the Courts revealed whether any other charges against the defendant were pending.

(5)       The elements that the prosecutor believes in good faith can be proved, and a list of those elements that the prosecutor cannot prove and why.

(6)       The name and agency of the charging officer and whether the officer is available.

(7)       Any reason why the charges are dismissed.

(c)       A copy of the form required in subsection (b) of this section shall be sent to the head of the law enforcement agency that employed the charging officer, to the district attorney who employs the prosecutor, and filed in the court file. The Administrative Office of the Courts shall electronically record this data in its database and make it available upon request."

SECTION 20.1.  G.S. 7A-109.2 reads as rewritten:

" 7A-109.2.  Records of dispositions in criminal cases.cases; impaired driving integrated data system.

(a)       Each clerk of superior court shall ensure that all records of dispositions in criminal cases, including those records filed electronically, contain all the essential information about the case, including the identity the name of the presiding judge and the attorneys representing the State and the defendant.

(b)       In addition to the information required by subsection (a) of this section for all offenses involving impaired driving as defined by G.S. 20-4.01, all charges of driving while license revoked for an impaired driving license revocation as defined by G.S. 20-28.2, and any other violation of the motor vehicle code involving the operation of a vehicle and the possession, consumption, use, or transportation of alcoholic beverages, the clerk shall include in the electronic records the following information:

(1)       The reasons for any pretrial dismissal by the court.

(2)       The alcohol concentration reported by the charging officer or chemical analyst, if any.

(3)       The reasons for any suppression of evidence."

SECTION 20.2.  Chapter 7A of the General Statutes is 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 be maintained in an Administrative Office of the Courts database. By March 1, the Administrative Office of the Courts shall provide an annual report of the previous calendar year to the Joint Legislative Commission on Governmental Operations and the Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight Committee. The annual report shall show the types of dispositions for the entire State by county, by judge, by prosecutor, and by defense attorney. This report shall also include the amount of fines, costs, and fees ordered at the disposition of the charge, the amount of any subsequent reduction, amount collected, and the amount still owed, and compliance with sanctions of community service, jail, substance abuse assessment, treatment, and education. The Administrative Office of the Courts shall facilitate public access to the information collected under this section by posting this information on the court's Internet page in a manner accessible to the public and shall make reports of any information collected under this section available to the public upon request and without charge."

PART XIi.  notice procedure and DRIVING WHILE LICENSE REVOKED after FAILURE TO APPEAR

SECTION 21.  G.S. 20-48 reads as rewritten:

" 20-48.  Giving of notice.

(a)       Whenever the Division is authorized or required to give any notice under this Chapter or other law regulating the operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the Division. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Division or affidavit of any person over 18 years of age, naming the person to whom such notice was given and specifying the time, place, and manner of the giving thereof.a notation in the records of the Division that the notice was sent to a particular address and the purpose of the notice. A certified copy of the Division's records may be sent by the Police Information Network, facsimile, or other electronic means. A copy of the Division's records sent under the authority of this section is admissible as evidence in any court or administrative agency and is sufficient evidence to discharge the burden of the person presenting the record that notice was sent to the person named in the record, at the address indicated in the record, and for the purpose indicated in the record. There is no requirement that the actual notice or letter be produced.

(b)       Notwithstanding any other provision of this Chapter at any time notice is now required by registered mail with return receipt requested, certified mail with return receipt requested may be used in lieu thereof and shall constitute valid notice to the same extent and degree as notice by registered mail with return receipt requested.

(c)       The Commissioner shall appoint such agents of the Division as may be needed to serve revocation notices required by this Chapter. The fee for service of a notice shall be fifty dollars ($50.00)."

SECTION 22.1.  G.S. 20-28 reads as rewritten:

" 20-28.  Unlawful to drive while license revoked revoked, after notification, or while disqualified.

(a)       Driving While License Revoked. - Except as provided in subsection (a1) of this section, any person whose drivers license has been revoked who drives any motor vehicle upon the highways of the State while the license is revoked is guilty of a Class 1 misdemeanor. Upon conviction, the person's license shall be revoked for an additional period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense.

The restoree of a revoked drivers license who operates a motor vehicle upon the highways of the State without maintaining financial responsibility as provided by law shall be punished as for driving without a license.

(a1)     Driving Without Reclaiming License. - A person convicted under subsection (a) shall be punished as if the person had been convicted of driving without a license under G.S. 20-35 if the person demonstrates to the court that either subdivisions (1) and (2), or subdivision (3) of this subsection is true:

(1)       At the time of the offense, the person's license was revoked solely under G.S. 20-16.5; and

(2)       a.         The offense occurred more than 45 days after the effective date of a revocation order issued under G.S. 20-16.5(f) and the period of revocation was 45 days as provided under subdivision (3) of that subsection; or

b.         The offense occurred more than 30 days after the effective date of the revocation order issued under any other provision of G.S. 20-16.5; or

(3)       At the time of the offense the person had met the requirements of G.S. 50-13.12, or G.S. 110-142.2 and was eligible for reinstatement of the person's drivers license privilege as provided therein.

In addition, a person punished under this subsection shall be treated for drivers license and insurance rating purposes as if the person had been convicted of driving without a license under G.S. 20-35, and the conviction report sent to the Division must indicate that the person is to be so treated.

(a2)     Driving After Notification or Failure to Appear. - A person shall be guilty of a Class 1 misdemeanor if:

(1)       The person drives upon a highway while that person's license is revoked for an impaired drivers license revocation after the Division has sent notification in accordance with G.S. 20-48; or

(2)       The person fails to appear for two years from the date of the charge after being charged with an implied-consent offense.

Upon conviction, the person's drivers license shall be revoked for an additional period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense. The restoree of a revoked drivers license who operates a motor vehicle upon the highways of the State without maintaining financial responsibility as provided by law shall be punished as for driving without a license.

(b)       Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 761, s. 3.

(c)       When Person May Apply for License. - A person whose license has been revoked may apply for a license as follows:

(1)       If revoked under subsection (a) of this section for one year year, the person may apply for a license after 90 days.

(2)       If punished under subsection (a1) of this section and the original revocation was pursuant to G.S. 20-16.5, in order to obtain reinstatement of a drivers license, the person must obtain a substance abuse assessment and show proof of financial responsibility to the Division. If the assessment recommends education or treatment, the person must complete the education or treatment within the time limits specified by the Division.

(3)       If revoked under subsection (a2) of this section for one year, the person may apply for a license after one year.

(4)       If revoked under this section for two years, the person may apply for a license after one year.

(5)       If revoked under this section permanently, the person may apply for a license after three years.A person whose license has been revoked under this section for two years may apply for a license after 12 months. A person whose license has been revoked under this section permanently may apply  for a license after three years.

(c1)     Upon the filing of an application the Division may, with or without a hearing, issue a new license upon satisfactory proof that the former licensee has not been convicted of a moving violation under this Chapter or the laws of another state, a violation of any provision of the alcoholic beverage laws of this State or another state, or a violation of any provisions of the drug laws of this State or another state when any of these violations occurred during the revocation period.

(c2)     The Division may impose any restrictions or conditions on the new license that the Division considers appropriate for the balance of the revocation period. When the revocation period is permanent, the restrictions and conditions imposed by the Division may not exceed three years.

(c3)     A person whose license is revoked for violation of subsection (a) of this section where the person's license was originally revoked for an impaired driving revocation, or a person whose license is revoked for a violation of subsection (a2) of this section, may only have the license conditionally restored by the Division pursuant to the provisions of subsection (c4) of this section.

(c4)     For a conditional restoration under subsection (c3) of this section, the Division shall require at a minimum that the driver obtain a substance abuse assessment prior to issuance of a license and show proof of financial responsibility. If the substance abuse assessment recommends education or treatment, the person must complete the education or treatment within the time limits specified. If the assessment determines that the person abuses alcohol, the Division shall require the person to install and use an ignition interlock system on any vehicles that are to be driven by that person for the period of time set forth in G.S. 20-17.8(c).

(c5)     For licenses conditionally restored pursuant to subsections (c3) and (c4) of this section, the Division shall cancel the license and impose the remaining revocation period if any of the following occur:

(1)       The person violates any condition of the restoration.

(2)       The person is convicted of any moving offense in this or another state.

(3)       The person is convicted for a violation of the alcoholic beverage or controlled substance laws of this or any other state.

(d)       Driving While Disqualified. - A person who was convicted of a violation that disqualified the person and required the person's drivers license to be revoked who drives a motor vehicle during the revocation period is punishable as provided in the other subsections of this section. A person who has been disqualified who drives a commercial motor vehicle during the disqualification period is guilty of a Class 1 misdemeanor and is disqualified for an additional period as follows:

(1)       For a first offense of driving while disqualified, a person is disqualified for a period equal to the period for which the person was disqualified when the offense occurred.

(2)       For a second offense of driving while disqualified, a person is disqualified for a period equal to two times the period for which the person was disqualified when the offense occurred.

(3)       For a third offense of driving while disqualified, a person is disqualified for life.

The Division may reduce a disqualification for life under this subsection to 10 years in accordance with the guidelines adopted under G.S. 20-17.4(b). A person who drives a commercial motor vehicle while the person is disqualified and the person's drivers license is revoked is punishable for both driving while the person's license was revoked and driving while disqualified."

SECTION 22.2.  G.S. 20-17(a)(2) reads as rewritten:

"(a)      The Division shall forthwith revoke the license of any driver upon receiving a record of the driver's conviction for any of the following offenses:

(2)       Either of the following impaired driving offenses:

a.         Impaired driving under G.S. 20-138.1.

b.         Impaired driving under G.S. 20-138.2.G.S. 20-138.2, if the driver's alcohol concentration level was .06 or higher. For the purposes of this sub-subdivision, the driver's alcohol concentration level result, obtained by chemical analysis, shall be conclusive and is not subject to modification by any party, with or without approval by the court."

SECTION 22.3.  G.S. 20-17.8(b) reads as rewritten:

"(b)      Ignition Interlock Required. - When Except as provided in subsection (1) of this section, when the Division restores the license of a person who is subject to this section, in addition to any other restriction or condition, it shall require the person to agree to and shall indicate on the person's drivers license the following restrictions for the period designated in subsection (c):

(1)       A restriction that the person may operate only a vehicle that is equipped with a functioning ignition interlock system of a type approved by the Commissioner. The Commissioner shall not unreasonably withhold approval of an ignition interlock system and shall consult with the Division of Purchase and Contract in the Department of Administration to ensure that potential vendors are not discriminated against.

(2)       A requirement that the person personally activate the ignition interlock system before driving the motor vehicle.

(3)       An alcohol concentration restriction as follows:

a.         If the ignition interlock system is required pursuant only to subdivision (a)(1) of this section, a requirement that the person not drive with an alcohol concentration of 0.04 or greater;

b.         If the ignition interlock system is required pursuant to subdivision (a)(2) of this section, a requirement that the person not drive with an alcohol concentration of greater than 0.00; or

c.         If the ignition interlock system is required pursuant to subdivision (a)(1) of this section, and the person has also been convicted, based on the same set of circumstances, of: (i) driving while impaired in a commercial vehicle, G.S. 20-138.2, (ii) driving while less than 21 years old after consuming alcohol or drugs, G.S. 20-138.3, (iii) felony death by vehicle, G.S. 20-141.4(a1), or (iv) manslaughter or negligent homicide resulting from the operation of a motor vehicle when the offense involved impaired driving, a requirement that the person not drive with an alcohol concentration of greater than 0.00."

SECTION 22.4.  G.S. 20-17.8 is amended by adding a new subsection to read:

"(l)       Medical Exception to Requirement. - A person subject to this section who has a medically diagnosed physical condition that makes the person incapable of personally activating an ignition interlock system may request an exception to the requirements of this section from the Division. The Division shall not issue an exception to this section unless the person has submitted to a physical examination by two or more physicians or surgeons duly licensed to practice medicine in this State or in any other state of the United States and unless such examining physicians or surgeons have completed and signed a certificate in the form prescribed by the Division. Such certificate shall be devised by the Commissioner with the advice of those qualified experts in the field of diagnosing and treating physical disorders that the Commissioner may select and shall be designed to elicit the maximum medical information necessary to aid in determining whether or not the person is capable of personally activating an ignition interlock system. The certificate shall contain a waiver of privilege and the recommendation of the examining physician to the Commissioner as to whether the person is capable of personally activating an ignition interlock system.

The Commissioner is not bound by the recommendations of the examining physicians but shall give fair consideration to such recommendations in acting upon the request for medical exception, the criterion being whether or not, upon all the evidence, it appears that the person is in fact incapable of personally activating an ignition interlock system. The burden of proof of such fact is upon the person seeking the exception.

Whenever an exception is denied by the Commissioner, such denial may be reviewed by a reviewing board upon written request of the person seeking the exception filed with the Division within 10 days after receipt of such denial. The composition, procedures, and review of the reviewing board shall be as provided in G.S. 20-9(g)(4)."

PART Xiii.  MODIFYING CURRENT PUNISHMENTS

SECTION 23.  G.S. 20-179 reads as rewritten:

" 20-179.  Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and aggravating and mitigating factors; punishments.

(a)       Sentencing Hearing Required. - 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, G.S. 20-138.3, or when any of those offenses are remanded back to district court after an appeal to superior court, the judge must shall hold a sentencing hearing to determine whether there are aggravating or mitigating factors that affect the sentence to be imposed.

(1)       The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.

(2)       Before the hearing the prosecutor must shall make all feasible efforts to secure the defendant's full record of traffic convictions, and must shall present to the judge that record for consideration in the hearing. Upon request of the defendant, the prosecutor must shall furnish the defendant or his attorney a copy of the defendant's record of traffic convictions at a reasonable time prior to the introduction of the record into evidence. In addition, the prosecutor must shall present all other appropriate grossly aggravating and aggravating factors of which he is aware, and the defendant or his attorney may present all appropriate mitigating factors. In every instance in which a valid chemical analysis is made of the defendant, the prosecutor must shall present evidence of the resulting alcohol concentration.

(a1)     Jury Trial in Superior Court; Jury Procedure if Trial Bifurcated. -

(1)       Notice. - If the defendant appeals to superior court, and the State intends to use one or more aggravating factors under subsections (c) or (d) of this section, the State must provide the defendant with notice of its intent. The notice shall be provided no later than 10 days prior to trial and shall contain a plain and concise factual statement indicating the factor or factors it intends to use under the authority of subsections (c) and (d) of this section. The notice must list all the aggravating factors that the State seeks to establish.

(2)       Aggravating factors. - The defendant may admit to the existence of an aggravating factor, and the factor so admitted shall be treated as though it were found by a jury pursuant to the procedures in this section. If the defendant does not so admit, only a jury may determine if an aggravating factor is present. The jury impaneled for the trial may, in the same trial, also determine if one or more aggravating factors is present, unless the court determines that the interests of justice require that a separate sentencing proceeding be used to make that determination. If the court determines that a separate proceeding is required, the proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.

(3)       Convening the jury. - If prior to the time that the trial jury begins its deliberations on the issue of whether one or more aggravating factors exist, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. An alternate juror shall become a part of the jury in the order in which the juror was selected. If the trial jury is unable to reconvene for a hearing on the issue of whether one or more aggravating factors exist after having determined the guilt of the accused, the trial judge shall impanel a new jury to determine the issue.

(4)       Jury selection. - A jury selected to determine whether one or more aggravating factors exist shall be selected in the same manner as juries are selected for the trial of criminal cases.

(a2)     Jury Trial on Aggravating Factors in Superior Court. -

(1)       Defendant admits aggravating factor only. - If the defendant admits that an aggravating factor exists, but pleads not guilty to the underlying charge, a jury shall be impaneled to dispose of the charge only. In that case, evidence that relates solely to the establishment of an aggravating factor shall not be admitted in the trial.

(2)       Defendant pleads guilty to the charge only. - If the defendant pleads guilty to the charge, but contests the existence of one or more aggravating factors, a jury shall be impaneled to determine if the aggravating factor or factors exist.

(b)       Repealed by Session Laws 1983, c. 435, s. 29.

(c)       Determining Existence of Grossly Aggravating Factors. - At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection shall be a matter to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Level One punishment under subsection (g) of this section if the judge determinesit is determined that two or more grossly aggravating factors apply. The judge must impose the Level Two punishment under subsection (h) of this section if the judge determinesit is determined that only one of the grossly aggravating factors applies. The grossly aggravating factors are:

(1)       A prior conviction for an offense involving impaired driving if:

a.         The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.         The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing.

Each prior conviction is a separate grossly aggravating factor.

(2)       Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

(3)       Serious injury to another person caused by the defendant's impaired driving at the time of the offense.

(4)       Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.

In imposing a Level One or Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f).

(c1)     Written Findings. - The court shall make findings of the aggravating and mitigating factors present in the offense. If the jury finds factors in aggravation, the court shall ensure that those findings are entered in the court's determination of sentencing factors form or any comparable document used to record the findings of sentencing factors. Findings shall be in writing.

(d)       Aggravating Factors to Be Weighed. - The judgejudge, or the jury in superior court, must shall determine before sentencing under subsection (f) whether any of the aggravating factors listed below apply to the defendant. The judge must shall weigh the seriousness of each aggravating factor in the light of the particular circumstances of the case. The factors are:

(1)       Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.16 or more within a relevant time after the driving.

(2)       Especially reckless or dangerous driving.

(3)       Negligent driving that led to a reportable accident.

(4)       Driving by the defendant while his driver's license was revoked.

(5)       Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20-16 or for which the convicted person's license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.

(6)       Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.

(7)       Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.

(8)       Passing a stopped school bus in violation of G.S. 20-217.

(9)       Any other factor that aggravates the seriousness of the offense.

Except for the factor in subdivision (5) the conduct constituting the aggravating factor must shall occur during the same transaction or occurrence as the impaired driving offense.

(e)       Mitigating Factors to Be Weighed. - The judge must shall also determine before sentencing under subsection (f) whether any of the mitigating factors listed below apply to the defendant. The judge must shall weigh the degree of mitigation of each factor in light of the particular circumstances of the case. The factors are:

(1)       Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.

(2)       Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.

(3)       Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties.

(4)       A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20-16 or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.

(5)       Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.

(6)       The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.

(7)       Any other factor that mitigates the seriousness of the offense.

Except for the factors in subdivisions (4), (6) and (7), the conduct constituting the mitigating factor must shall occur during the same transaction or occurrence as the impaired driving offense.

(f)        Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, hethe judge must shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:

(1)       The aggravating factors substantially outweigh any mitigating factors, he must the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).

(2)       There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, he must the judge shall note in the judgment any factors found and histhe finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).

(3)       The mitigating factors substantially outweigh any aggravating factors, he must the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

It is not a mitigating factor that the driver of the vehicle was suffering from alcoholism, drug addiction, diminished capacity, or mental disease or defect. Evidence of these matters may be received in the sentencing hearing, however, for use by the judge in formulating terms and conditions of sentence after determining which punishment level must shall be imposed.

(f1)     Aider and Abettor Punishment. - Notwithstanding any other provisions of this section, a person convicted of impaired driving under G.S. 20-138.1 under the common law concept of aiding and abetting is subject to Level Five punishment. The judge need not make any findings of grossly aggravating, aggravating, or mitigating factors in such cases.

(f2)     Limit on Consolidation of Judgments. - Except as provided in subsection (f1), in each charge of impaired driving for which there is a conviction the judge must shall determine if the sentencing factors described in subsections (c), (d) and (e) are applicable unless the impaired driving charge is consolidated with a charge carrying a greater punishment. Two or more impaired driving charges may not be consolidated for judgment.

(g)       Level One Punishment. - A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.

(h)       Level Two Punishment. - A defendant subject to Level Two punishment may be fined up to two thousand dollars ($2,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.

(i)        Level Three Punishment. - A defendant subject to Level Three punishment may be fined up to one thousand dollars ($1,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 72 hours and a maximum term of not more than six months. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:

(1)       Be imprisoned for a term of at least 72 hours as a condition of special probation; or

(2)       Perform community service for a term of at least 72 hours; or

(3)       Not operate a motor vehicle for a term of at least 90 days; or

(4)       Any combination of these conditions.

If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.

(j)        Level Four Punishment. - A defendant subject to Level Four punishment may be fined up to five hundred dollars ($500.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 48 hours and a maximum term of not more than 120 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:

(1)       Be imprisoned for a term of 48 hours as a condition of special probation; or

(2)       Perform community service for a term of 48 hours; or

(3)       Not operate a motor vehicle for a term of 60 days; or

(4)       Any combination of these conditions.

If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.

(k)       Level Five Punishment. - A defendant subject to Level Five punishment may be fined up to two hundred dollars ($200.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 24 hours and a maximum term of not more than 60 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:

(1)       Be imprisoned for a term of 24 hours as a condition of special probation; or

(2)       Perform community service for a term of 24 hours; or

(3)       Not operate a motor vehicle for a term of 30 days; or

(4)       Any combination of these conditions.

If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.

(k1)     Credit for Inpatient Treatment. - Pursuant to G.S. 15A-1351(a), the judge may order that a term of imprisonment imposed as a condition of special probation under any level of punishment be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient. The defendant shall bear the expense of any treatment unless the trial judge orders that the costs be absorbed by the State. The judge may impose restrictions on the defendant's ability to leave the premises of the treatment facility and require that the defendant follow the rules of the treatment facility. The judge may credit against the active sentence imposed on a defendant the time the defendant was an inpatient at the treatment facility, provided such treatment occurred after the commission of the offense for which the defendant is being sentenced. This section shall not be construed to limit the authority of the judge in sentencing under any other provisions of law.

(l)        Repealed by Session Laws 1989, c. 691.

(m)      Repealed by Session Laws 1995, c. 496, s. 2.

(n)       Time Limits for Performance of Community Service. - If the judgment requires the defendant to perform a specified number of hours of community service as provided in subsections (i), (j), or (k), the community service must shall be completed:

(1)       Within 90 days, if the amount of community service required is 72 hours or more; or

(2)       Within 60 days, if the amount of community service required is 48 hours; or

(3)       Within 30 days, if the amount of community service required is 24 hours.

The court may extend these time limits upon motion of the defendant if it finds that the defendant has made a good faith effort to comply with the time limits specified in this subsection.

(o)       Evidentiary Standards; Proof of Prior Convictions. - In the sentencing hearing, the State must shall prove any grossly aggravating or aggravating factor by the greater weight of the evidence, beyond a reasonable doubt, and the defendant must shall prove any mitigating factor by the greater weight of the evidence. Evidence adduced by either party at trial may be utilized in the sentencing hearing. Except as modified by this section, the procedure in G.S. 15A-1334(b) governs. The judge may accept any evidence as to the presence or absence of previous convictions that he finds reliable but he must shall give prima facie effect to convictions recorded by the Division or any other agency of the State of North Carolina. A copy of such conviction records transmitted by the police information network in general accordance with the procedure authorized by G.S. 20-26(b) is admissible in evidence without further authentication. If the judge decides to impose an active sentence of imprisonment that would not have been imposed but for a prior conviction of an offense, the judge must shall afford the defendant an opportunity to introduce evidence that the prior conviction had been obtained in a case in which he was indigent, had no counsel, and had not waived his right to counsel. If the defendant proves by the preponderance of the evidence all three above facts concerning the prior case, the conviction may not be used as a grossly aggravating or aggravating factor.

(p)       Limit on Amelioration of Punishment. - For active terms of imprisonment imposed under this section:

(1)       The judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.

(2)       The defendant shall serve the mandatory minimum period of imprisonment and good or gain time credit may not be used to reduce that mandatory minimum period.

(3)       The defendant may not be released on parole unless he is otherwise eligible, has served the mandatory minimum period of imprisonment, and has obtained a substance abuse assessment and completed any recommended treatment or training program or is paroled into a residential treatment program.

With respect to the minimum or specific term of imprisonment imposed as a condition of special probation under this section, the judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.

(q)       Repealed by Session Laws 1991, c. 726, s. 20.

(r)        Supervised Probation Terminated. - Unless a judge in his discretion determines that supervised probation is necessary, and includes in the record that he has received evidence and finds as a fact that supervised probation is necessary, and states in his judgment that supervised probation is necessary, a defendant convicted of an offense of impaired driving shall be placed on unsupervised probation if he meets three conditions. These conditions are that he has not been convicted of an offense of impaired driving within the seven years preceding the date of this offense for which he is sentenced, that the defendant is sentenced under subsections (i), (j), and (k) of this section, and has obtained any necessary substance abuse assessment and completed any recommended treatment or training program.

When a judge determines in accordance with the above procedures that a defendant should be placed on supervised probation, the judge shall authorize the probation officer to modify the defendant's probation by placing the defendant on unsupervised probation upon the completion by the defendant of the following conditions of his suspended sentence:

(1)       Community service; or

(2)       Repealed by Session Laws 1995 c. 496, s. 2.

(3)       Payment of any fines, court costs, and fees; or

(4)       Any combination of these conditions.

(s)       Method of Serving Sentence. - The judge in his discretion may order a term of imprisonment or community service to be served on weekends, even if the sentence cannot be served in consecutive sequence. However, if the defendant is ordered to a term of 48 hours or more, or has 48 hours or more remaining on a term of imprisonment, the defendant shall be required to serve 48 continuous hours of imprisonment to be given credit for time served.

(1)       Credit for any jail time shall only be given hour for hour for time actually served. The jail shall maintain a log showing number of hours served.

(2)       The defendant shall be refused entrance and shall be reported back to court if the defendant appears at the jail and has remaining in his body any alcohol as shown by an alcohol screening device or controlled substance previously consumed, unless lawfully obtained and taken in therapeutically appropriate amounts.

(3)       If a defendant has been reported back to court under subdivision (2) of this subsection, the court shall hold a hearing. The defendant shall be ordered to serve his jail time immediately and shall not be eligible to serve jail time on weekends if the court determines that, at the time of his entrance to the jail, if

a.         The defendant had previously consumed alcohol in his body as shown by an alcohol screening device, or

b.         The defendant had a previously consumed controlled substance in his body.

It shall be a defense to an immediate service of sentence of jail time and ineligibility for weekend service of jail time if the court determines that alcohol or controlled substance was lawfully obtained and was taken in therapeutically appropriate amounts.

(t)        Repealed by Session Laws 1995, c. 496, s. 2."

SECTION 24.  Chapter 7A of the General Statutes is amended by adding a new section to read:

" 7A-109.4.  Records of offenses involving impaired driving.

The clerk of superior court shall maintain all records relating to an offense involving impaired driving as defined in G.S. 20-4.01(24a) for a minimum of 10 years from the date of conviction. Prior to destroying the record, the clerk shall record the name of the defendant, the judge, the prosecutor, and the attorney or whether there was a waiver of attorney, the alcohol concentration or the fact of refusal, the sentence imposed, and whether the case was appealed to superior court and its disposition."

SECTION 25.  G.S. 20-17.2 is repealed.

PART XIV.  MAKING IT ILLEGAL FOR A PERSON UNDER 21 YEARS OF AGE TO CONSUME AS WELL AS POSSESS ALCOHOL AND TO ALLOW ALCOHOL SCREENING DEVICES TO BE USED TO PROVE A PERSON HAS CONSUMED ALCOHOL

SECTION 26.  G.S. 18B-302 reads as rewritten:

" 18B-302.  Sale to or purchase by underage persons.

(a)       Sale. - It shall be unlawful for any person to:

(1)       Sell or give malt beverages or unfortified wine to anyone less than 21 years old; or

(2)       Sell or give fortified wine, spirituous liquor, or mixed beverages to anyone less than 21 years old.

(b)       Purchase or Possession. Purchase, Possession, or Consumption. - It shall be unlawful for:

(1)       A person less than 21 years old to purchase, to attempt to purchase, or to possess malt beverages or unfortified wine; or

(2)       A person less than 21 years old to purchase, to attempt to purchase, or to possess fortified wine, spirituous liquor, or mixed beverages.beverages; or

(3)       A person less than 21 years old to consume any alcoholic beverage.

(i)        Purchase or PossessionPurchase, Possession, or Consumption by 19 or 20-Year Old. - A violation of subdivision (b)(1) or (b)(3) of this section by a person who is 19 or 20 years old is a Class 3 misdemeanor.

(j)        Notwithstanding any other provisions of law, a law enforcement officer may require any person the officer has probable cause to believe is under age 21 and has consumed alcohol to submit to an alcohol screening test using a device approved by the Department of Health and Human Services. The results of any screening device administered in accordance with the rules of the Department of Health and Human Services shall be admissible in any court or administrative proceeding. A refusal to submit to an alcohol screening test shall be admissible in any court or administrative proceeding.

(k)       Notwithstanding the provisions in this section, it shall not be unlawful for a person less than 21 years old to consume unfortified wine or fortified wine during participation in an exempted activity under G.S. 18B-103(4), (8), or (11)."

PART XV.  requirING that CERTAIN dwi defendants who are released from prison early are to be assigned community service parole OR HOUSE ARREST

SECTION 27.  G.S. 15A-1374 reads as rewritten:

" 15A-1374.  Conditions of parole.

(a)       In General. - The Post-Release Supervision and Parole Commission may in its discretion impose conditions of parole it believes reasonably necessary to insure that the parolee will lead a law-abiding life or to assist him to do so. The Commission must provide as an express condition of every parole that the parolee not commit another crime during the period for which the parole remains subject to revocation. When the Commission releases a person on parole, it must give him a written statement of the conditions on which he is being released.

(a1)     Required Conditions for Certain Offenders. - A person serving a term of imprisonment for an impaired driving offense sentenced pursuant to G.S. 20-179 that:

(1)       Has completed any recommended treatment or training program required by G.S. 20-179(p)(3); and

(2)       Is not being paroled to a residential treatment program;

shall, as a condition of parole, receive community service parole pursuant to G.S. 15A-1371(h), or be required to comply with subdivision (b)(8a) of this section.

(b)       Appropriate Conditions. - As conditions of parole, the Commission may require that the parolee comply with one or more of the following conditions:

(1)       Work faithfully at suitable employment or faithfully pursue a course of study or vocational training that will equip him for suitable employment.

(2)       Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose.

(3)       Attend or reside in a facility providing rehabilitation, instruction, recreation, or residence for persons on parole.

(4)       Support his dependents and meet other family responsibilities.

(5)       Refrain from possessing a firearm, destructive device, or other dangerous weapon unless granted written permission by the Commission or the parole officer.

(6)       Report to a parole officer at reasonable times and in a reasonable manner, as directed by the Commission or the parole officer.

(7)       Permit the parole officer to visit him at reasonable times at his home or elsewhere.

(8)       Remain within the geographic limits fixed by the Commission unless granted written permission to leave by the Commission or the parole officer.

(8a)     Remain in one or more specified places for a specified period or periods each day and wear a device that permits the defendant's compliance with the condition to be monitored electronically.

(9)       Answer all reasonable inquiries by the parole officer and obtain prior approval from the parole officer for any change in address or employment.

(10)     Promptly notify the parole officer of any change in address or employment.

(11)     Submit at reasonable times to searches of his person by a parole officer for purposes reasonably related to his parole supervision. The Commission may not require as a condition of parole that the parolee submit to any other searches that would otherwise be unlawful. Whenever the search consists of testing for the presence of illegal drugs, the parolee may also be required to reimburse the Department of Correction for the actual cost of drug testing and drug screening, if the results are positive.

(11a)   Make restitution or reparation to an aggrieved party as provided in G.S. 148-57.1.

(11b)   Comply with an order from a court of competent jurisdiction regarding the payment of an obligation of the parolee in connection with any judgment rendered by the court.

(11c)   In the case of a parolee who was attending a basic skills program during incarceration, continue attending a basic skills program in pursuit of a General Education Development Degree or adult high school diploma.

(12)     Satisfy other conditions reasonably related to his rehabilitation.

(c)       Supervision Fee. - The Commission must require as a condition of parole that the parolee pay a supervision fee of thirty dollars ($30.00) per month. The Commission may exempt a parolee from this condition of parole only if it finds that requiring him to pay the fee will constitute an undue economic burden. The fee must be paid to the clerk of superior court of the county in which the parolee was convicted. The clerk must transmit any money collected pursuant to this subsection to the State to be deposited in the general fund of the State. In no event shall a person released on parole be required to pay more than one supervision fee per month."

part XVi.  prevent noncompliant permit holders from continuing irresponsible alcohol service practices by switching permits to another name

SECTION 28.  G.S. 18B-1003(c) reads as rewritten:

"(c)      Certain Employees Prohibited. - A permittee shall not knowingly employ in the sale or distribution of alcoholic beverages any person who has been:

(1)       Convicted of a felony within three years;

(2)       Convicted of a felony more than three years previously and has not had his citizenship restored;

(3)       Convicted of an alcoholic beverage offense within two years;  or

(4)       Convicted of a misdemeanor controlled substances offense within two years.

(5)       A past permit holder under Chapter 18B of the General Statutes whose permit had been revoked within the last 18 months and who had been the permit holder at the location where the person would be employed.

For purposes of this subsection, "conviction" has the same meaning as in G.S. 18B-900(b). To avoid undue hardship, the Commission may, in its discretion, exempt persons on a case-by-case basis from this subsection."

part XVii.  dwi  training for judgesSECTION 29.  The North Carolina General Assembly requests that the Chief Justice of the North Carolina Supreme Court encourage the judges of this State to obtain continuing legal education on the laws of this State relating to driving while impaired offenses and related issues, and to promulgate any rules necessary to ensure that the judiciary receives necessary training and education on these laws.

part xVIIi.  require a da signature before a motion for appropriate relief is granted in district court

SECTION 30.  G.S. 15A-1420(a) reads as rewritten:

"(a)      Form, Service, Filing.

(1)       A motion for appropriate relief must:

a.         Be made in writing unless it is made:

1.         In open court;

2.         Before the judge who presided at trial;

3.         Before the end of the session if made in superior court; and

4.         Within 10 days after entry of judgment;

b.         State the grounds for the motion;

c.         Set forth the relief sought; and

d.         Be timely filed.

(2)       A written motion for appropriate 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 five working days prior to the date of the hearing. When a motion for appropriate relief is permitted to be made orally the court must determine whether the matter may be heard immediately or at a later time. If the opposing party, or his counsel if he is represented, is not present, the court must provide for the giving of adequate notice of the motion and the date of hearing to the opposing party, or his counsel if he is represented by counsel.

(3)       A written motion for appropriate relief must be filed in the manner provided in G.S. 15A-951(c).

(4)       An oral or written motion for appropriate relief may not be granted in district court without the signature of the district attorney, indicating that the State has had an opportunity to consent or object to the motion. However, the court may grant a motion for appropriate relief without the district attorney's signature 10 business days after the district attorney has been notified in open court of the motion, or served with the motion pursuant to G.S. 15A-951(c).

"

PART XIX. SEIZURE AND FORFEITURE OF VEHICLE

SECTION 31.  G.S. 20-28.2 reads as rewritten:

" 20-28.2.  Forfeiture of motor vehicle for impaired driving after impaired driving license revocation.

(a)       Meaning of "Impaired Driving License Revocation". - The revocation of a person's drivers license is an impaired driving license revocation if the revocation is pursuant to:

(1)       G.S. 20-13.2, 20-16(a)(8b), 20-16.2, 20-16.5, 20-17(a)(2), 20-17(a)(12), 20-17.2, or 20-138.5; or

(2)       G.S. 20-16(a)(7), 20-17(a)(1), 20-17(a)(3), 20-17(a)(9), or 20-17(a)(11), if the offense involves impaired driving; or

(3)       The laws of another state and the offense for which the person's license is revoked prohibits substantially similar conduct which if committed in this State would result in a revocation listed in subdivisions (1) or (2).

(a1)     Definitions. - As used in this section and in G.S. 20-28.3, 20-28.4, 20-28.5, 20-28.7, 20-28.8, and 20-28.9, the following terms mean:

(1)       Acknowledgment. - A written document acknowledging that:

a.         The motor vehicle was operated by a person charged with an offense involving impaired driving driving, and:

1.         while that That person's drivers license was revoked as a result of a prior impaired drivers license revocation; or

2.         That person did not have a valid drivers license, and did not have liability insurance.

b.         If the motor vehicle is again operated by this particular person, and the person is charged with an offense involving impaired driving, then the vehicle is subject to impoundment and forfeiture if (i) at any time the offense occurs while that person's drivers license is revoked, or (ii) the offense occurs while the person has no valid drivers license, and has no liability insurance;and the person is charged with an offense involving impaired driving, the motor vehicle is subject to impoundment and forfeiture; and

c.         A lack of knowledge or consent to the operation will not be a defense in the future, unless the motor vehicle owner has taken all reasonable precautions to prevent the use of the motor vehicle by this particular person and immediately reports, upon discovery, any unauthorized use to the appropriate law enforcement agency.

(1a)     Fair Market Value. - The value of the seized motor vehicle, as determined in accordance with the schedule of values adopted by the Commissioner pursuant to G.S. 105-187.3.

(2)       Innocent Owner. - A motor vehicle owner:

a.         Who did not know and had no reason to know that (i) the defendant's drivers license was revoked;revoked, or (ii) that the defendant did not have a valid drivers license, and that the defendant had no liability insurance; or

b.         Who knew that (i) the defendant's drivers license was revoked, or (ii) that the defendant had no valid drivers license, and that the defendant had no liability insurance, but the defendant drove the vehicle without the person's expressed or implied permission, and the owner files a police report for unauthorized use of the motor vehicle and agrees to prosecute the unauthorized operator of the motor vehicle; or

c.         Whose vehicle was reported stolen; or

d.         Repealed by Session Laws 1999-406, s. 17.

e.         Who is in the business of renting vehicles, and the vehicle was driven by a person who is not listed as an authorized driver on the rental contract; or

f.          Who is in the business of leasing motor vehicles, who holds legal title to the motor vehicle as a lessor at the time of seizure and who has no actual knowledge of the revocation of the lessee's drivers license at the time the lease is entered.

(2a)     Insurance Company. - Any insurance company that has coverage on or is otherwise liable for repairs or damages to the motor vehicle at the time of the seizure.

(2b)     Insurance Proceeds. - Proceeds paid under an insurance policy for damage to a seized motor vehicle less any payments actually paid to valid lienholders and for towing and storage costs incurred for the motor vehicle after the time the motor vehicle became subject to seizure.

(3)       Lienholder. - A person who holds a perfected security interest in a motor vehicle at the time of seizure.

(3a)     Motor Vehicle Owner. - A person in whose name a registration card or certificate of title for a motor vehicle is issued at the time of seizure.

(4)       Order of Forfeiture. - An order by the court which terminates the rights and ownership interest of a motor vehicle owner in a motor vehicle and any insurance proceeds or proceeds of sale in accordance with G.S. 20-28.2.

(5)       Repealed by Session Laws 1998-182, s. 2.

(6)       Registered Owner. - A person in whose name a registration card for a motor vehicle is issued at the time of seizure.

(7)       Repealed by Session Laws 1998-182, s. 2.

(b)       When Motor Vehicle Becomes Property Subject to Order of Forfeiture. Forfeiture; Impaired Driving and Prior Revocation. - A judge may determine whether the vehicle driven by an impaired driver at the time of the offense becomes subject to an order of forfeiture. The determination may be made at any of the following times:

(1)       A hearing for the underlying offense involving impaired driving.

(2)       A separate hearing after conviction of the defendant.

(3)       A forfeiture hearing held at least 60 days after the defendant failed to appear at the scheduled trial for the underlying offense, and the defendant's order of arrest for failing to appear has not been set aside.

The vehicle shall become subject to an order of forfeiture if the greater weight of the evidence shows that the underlying offense involved impaired driving, and that the defendant's license was revoked pursuant to an impaired driving license revocation as defined in subsection (a) of this section.

If at a sentencing hearing for the underlying offense involving impaired driving, at a separate hearing after conviction of the defendant, or at a forfeiture hearing held at least 60 days after the defendant failed to appear at the scheduled trial for the underlying offense and the defendant's order of arrest for failing to appear has not been set aside, the judge determines by the greater weight of the evidence that the defendant is guilty of an offense involving impaired driving and that the defendant's license was revoked pursuant to an impaired driving license revocation as defined in subsection (a) of this section, the motor vehicle that was driven by the defendant at the time the defendant committed the offense becomes property subject to an order of forfeiture.

(b1)     When a Motor Vehicle Becomes Property Subject to Order of Forfeiture; No License and No Insurance. - A judge may determine whether the vehicle driven by an impaired driver at the time of the offense becomes subject to an order of forfeiture. The determination may be made at any of the following times:

(1)       A hearing for the underlying offense involving impaired driving.

(2)       A separate hearing after conviction of the defendant.

(3)       A forfeiture hearing held at least 60 days after the defendant failed to appear at the scheduled trial for the underlying offense, and the defendant's order of arrest for failing to appear has not been set aside.

The vehicle shall become subject to an order of forfeiture if the greater weight of the evidence shows that the underlying offense involved impaired driving, and:  (i) the defendant was driving without a valid drivers license, and (ii)  the defendant was not covered by an automobile liability policy."

SECTION 32.  G.S. 20-28.3(a) reads as rewritten:

" 20-28.3.  Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving while license revoked.revoked or without license and insurance.

(a)       Motor Vehicles Subject to Seizure. - A motor vehicle that is driven by a person who is charged with an offense involving impaired driving is subject to seizure if if:

(1)       at  At the time of the violation violation, the drivers license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation as defined in G.S. 20-28.2(a).G.S. 20-28.2(a); or

(2)       At the time of the violation:

a.         The person was driving without a valid drivers license, and

b.         The driver was not covered by an automobile liability policy.

For the purposes of this subsection, a person who has a complete defense, pursuant to G.S. 20-35, to a charge of driving without a drivers license, shall be considered to have had a valid drivers license at the time of the violation."

PART XX.  EFFECTIVE DATE

SECTION 33.  Sections 20.1, 20.2, and the requirement that the Administrative Office of the Courts electronically record certain data contained in subsection (c) of G.S. 20-138.4, as amended by Section 19 of this act, become effective after the next rewrite of the superior court clerks system by the Administrative Office of the Courts.  The remainder of this act becomes effective December 1, 2006, and applies to offenses committed on or after that date.

In the General Assembly read three times and ratified this the 27th day of July, 2006.

 

 

                                                                    s/ Beverly E. Perdue

                                                                         President of the Senate

 

 

                                                                    s/ James B. Black

                                                                         Speaker of the House of Representatives

 

 

                                                                    s/ Michael F. Easley

                                                                         Governor

 

 

Approved 11:50 a.m. this 21st day of August, 2006