Underage DUI refers to charges under N.C.G.S. 20-138.3. The law makes it unlawful for anyone under 21 to drive a vehicle on a highway or public vehicular area while consuming alcohol or at any time while any alcohol or controlled substance remains in their body. This is a zero-tolerance statute. Any detectable alcohol can lead to prosecution, even if you are not impaired and even if your BAC is far below the 0.08 per se limit that most people associate with adult DWI in North Carolina. North Carolina statutes do not use the terms DUI or DWI. The name for standard impaired driving is Impaired Driving under N.C.G.S. 20-138.1. The charge under 20-138.3 appears in many AOC and DMV records as DRIVE AFTER CONSUMING < 21 or a similar abbreviation. Lawyers, prosecutors, and judges sometimes refer to the offense as provisional DWI or a provisional licensee violation, even though those labels do not appear in the statute.

Underage DUI and impaired driving are separate offenses with different elements. A charge under 20-138.3 does not allege actual impairment. The State needs to show that you were under 21, operating a vehicle, and had alcohol or a controlled substance in your body. For a charge under 20-138.1, the State must prove appreciable impairment. A BAC of 0.02 or 0.03 is not, by itself, treated as proof of appreciable impairment, but it is more than enough for a 20-138.3 case.

Drive After Consuming Under 21 is the shorthand used for N.C.G.S. 20-138.3. You will see DRIVE AFTER CONSUMING < 21 or a similar abbreviation in citations, court notices, and background checks. People may call the charge provisional DWI, underage DWI, underage DUI, or simply a 20-138.3 offense. All refer to the same charge.

There is no legal difference between DUI and DWI in North Carolina. The statutes do not use either acronym. North Carolina law uses the term Impaired Driving under N.C.G.S. 20-138.1. Some states separate DUI and DWI into different offenses. North Carolina does not.

“Provisional Licensee Violations,” “Underage DUI” or “Underage DWI” pursuant to N.C.G.S. 20-138.3 is not a lesser included offense of DWI. The statute states that it is not a lesser included offense of impaired driving under N.C.G.S. 20-138.1. A driver under 21 who is appreciably impaired may be charged with both offenses arising from the same incident.

A single event can support both impaired driving under N.C.G.S. 20-138.1 and driving after consuming under 21 under N.C.G.S. 20-138.3. One statute focuses on impairment and the other focuses on the presence of any alcohol in a driver under 21.

A charge under N.C.G.S. 20-138.3 is classified as a Class 2 misdemeanor. The maximum punishment is up to 60 days of confinement, with the actual sentence determined under North Carolina’s misdemeanor grid in N.C.G.S. 15A-1340.23. Your prior record level guides the judge’s sentencing choices. Even though the offense is not sentenced under N.C.G.S. 20-179, courts often impose conditions similar to those used in impaired driving cases. Alcohol assessments, treatment recommendations, community service, court costs, fines, and insurance consequences are common.

DWI sentencing uses a separate statute with its own structure and mandatory minimums under N.C.G.S. 20-179. Judges must evaluate grossly aggravating factors, aggravating factors, and mitigating factors. None of that applies to 20-138.3. Because 20-138.3 is sentenced under the standard misdemeanor grid, options exist that are not available in DWI cases, including the possibility of a Prayer for Judgment Continued.

Judges have discretion to enter a PJC for a N.C.G.S. 20-138.3 charge because it is sentenced under the general misdemeanor structure. A PJC is not available for impaired driving under N.C.G.S. 20-138.1. A PJC is by no means guaranteed or promised, even if you have a perfect record. Indeed, while a Prayer for Judgment may be somewhat common in North Carolina for minor traffic infractions like speeding tickets, a PJC is not always available or even the right choice in every case. Prosecutors in North Carolina sometimes not only refuse to consent to a PJC but also actively argue against continuing judgment. Seek legal counsel to determine whether you are eligible for a PJC.

A Prayer for Judgment Continued is a North Carolina disposition where the judge does not enter judgment. Without judgment, a sentence is imposed. A PJC can limit some consequences of criminal allegations, but it is not a dismissal or an acquittal. A DMV record check will show that the charge resulted in a PJC. Different systems treat a Prayer for Judgment differently, and its effect depends on driving history, insurance status, and other circumstances. It’s advisable to seek legal advice to determine the possibility of a “continued judgment” and the substantive effect to your driving record and/or insurance points. Lawyer up.

Credible, admissible evidence that alcohol is present in your body can support a charge under N.C.G.S. 20-138.3, even at very low BAC levels. Drivers under 21 do not receive the 0.08 BAC – Blood Alcohol Concentration “legal limit” that applies to adults. With regard to defendants under the age of 21 years old at the time of the offense, there is no “legal limit.” No amount of alcohol is allowed while operating a vehicle in North Carolina. That’s what “zero-tolerance” means. You literally cannot have any amount of an alcoholic beverage and operate a vehicle.

Odor of alcohol alone rarely satisfies the proof required for a conviction under N.C.G.S. 20-138.3. Odor may contribute to probable cause (reasonable grounds) that alcohol could be present, but odor by itself normally would not establish that alcohol was in your system. Convictions for underage DUI tend to rely on chemical testing or additional observations gathered during the encounter. When no evidentiary test exists, the statute may allow the Finder of Fact to consider whether a Portable Breath Test was positive or negative for alcohol, which may supplement the officer’s observations on the issue of consumption. The numeric PBT result is inadmissible as substantive evidence. The State must still present admissible, relevant evidence that alcohol was present in the body at the time of driving, rather than relying solely on a subjective opinion regarding the alleged detection of the odor of an alcoholic beverage, standing alone. Refusal to take a Portable Breath Test may be admitted at trial and, when combined with odor and other observations, may be considered as part of the evidentiary picture on the element of consumption. The refusal of a PBT is not subject to the North Carolina implied consent laws or the related license consequences. Given the scientific and legal complexity of these issues, it is advisable to retain legal counsel to discuss the specifics of your legal matter.

Refusing an evidentiary breath test on an approved device, such as the Intoximeter EC/IR II, is treated as a willful refusal under North Carolina’s implied consent laws. When an officer has probable cause to charge Driving After Consuming Under 21 under N.C.G.S. 20-138.3, the officer may request an evidentiary chemical analysis under N.C.G.S. 20-16.2. If you decline that evidentiary test, the refusal triggers a separate civil license revocation handled by the DMV. That revocation continues even if the criminal charge is later dismissed or reduced, because the civil consequence flows from the refusal itself rather than the outcome in court.

A willful refusal applies only to evidentiary chemical testing. Refusing a Portable Breath Test at the roadside is different. The PBT is governed by N.C.G.S. 20-16.3 and does not fall within the implied consent statute. Declining the PBT does not create a civil revocation, although the fact of the refusal may be admitted at trial as one piece of evidence on the issue of consumption in an underage DUI case. The numeric PBT value is not admissible to prove a particular alcohol concentration, but testimony that the device registered a positive or negative result, or that the driver refused the screening test, may be considered where the element is simply whether any alcohol was present at the time of driving.

If an officer seeks a blood test, the same implied consent framework applies. A willful refusal of a lawfully requested evidentiary blood draw triggers the same DMV revocation as a refusal of an evidentiary breath test. The officer must comply with the procedures in N.C.G.S. 20-16.2, including proper rights advisement and documentation of the refusal.

Because underage DUI cases often involve both screening devices and evidentiary testing, understanding which refusals carry criminal or administrative consequences and which do not is important. The implications differ significantly depending on whether the request involved a roadside screening tool or an evidentiary instrument. A detailed review with defense counsel helps determine the most appropriate response and the available options after a refusal. 

Driving After Consuming Under 21 under N.C.G.S. 20-138.3 is treated as an implied consent offense in North Carolina. When an officer develops probable cause to believe a violation of 20-138.3 has occurred, the officer may lawfully request an evidentiary chemical analysis under the implied consent statute, N.C.G.S. 20-16.2. The testing request must follow the statutory procedures that govern evidentiary breath, blood, or urine tests, and the driver is subject to the same willful refusal framework that applies in traditional DWI cases. A willful refusal leads to a separate civil license revocation handled by the DMV and continues even if the criminal charge is later dismissed or reduced.

The implied consent designation applies only to evidentiary chemical testing. The roadside Portable Breath Test falls under a different statute, N.C.G.S. 20-16.3, and serves a separate investigative purpose. A PBT may be used to determine the presence or absence of alcohol and may be considered for certain limited evidentiary issues, but it does not replace the procedures for an evidentiary chemical test and does not trigger a civil license revocation if refused.

The statute permits a court or administrative agency to consider the fact that a PBT produced a positive or negative result, or that the driver refused the screening test, when deciding whether the driver had consumed alcohol at all. That limited use is particularly important in an underage DUI case because the State must establish the presence of any alcohol in the body rather than a specific alcohol concentration or a level of impairment. The numeric value displayed on the PBT screen is not admissible to prove a particular BAC, yet testimony that the screening device registered a positive result may be treated as one piece of evidence of consumption and weighed together with the officer’s observations and any evidentiary test obtained under N.C.G.S. 20-16.2.

The statutory framework draws a clear line between screening AlcoSensor PBT and an evidentiary device such as the Intoximeter EC/IR II. Screening tools inform roadside decisions and can, in a narrow way, support the element of consumption in an underage case, while evidentiary tests provide the admissible alcohol concentration that drives both criminal sentencing and civil license consequences. 

If you are convicted of Driving After Consuming Under 21 under N.C.G.S. 20-138.3, the Division of Motor Vehicles must revoke your license. DMV enters a one year revocation under N.C.G.S. 20-13.2(a) once it receives notice of the conviction, regardless of whether the judge in district court imposes only court costs, a fine, community punishment, or a short suspended sentence. The revocation is an administrative consequence that does not depend on how lenient the criminal sentence felt. If the same incident also results in a conviction for impaired driving under N.C.G.S. 20-138.1, DMV will impose a separate revocation under N.C.G.S. 20-17(a)(2). Because you were under 21 at the time of an offense involving impaired driving, N.C.G.S. 20-13.2(b) requires an additional one year revocation. Revocations entered under N.C.G.S. 20-13.2 run for one year and, under current law, run at the same time as any other revocations arising from the same conduct, not on top of them in a stacked fashion. License consequences become more layered if you refused the evidentiary chemical test. A willful refusal under N.C.G.S. 20-16.2 by someone under 21 triggers its own one year civil revocation, and N.C.G.S. 20-13.2(c) directs DMV to treat that refusal as an additional ground for revocation. That refusal revocation starts and runs on its own schedule and is not erased by a dismissal, reduction, or even a later PJC on the criminal charge. A true Prayer for Judgment Continued on a 20-138.3 charge is treated differently from a conviction. Because N.C.G.S. 20-13.2(a) speaks in terms of a person “convicted” of violating 20-138.3, a PJC on that specific charge by itself does not trigger the one year conviction-based revocation or the conviction points that follow a reportable judgment. That does not undo a separate refusal revocation or a revocation tied to a related DWI conviction, and a PJC still leaves a public record that schools, military recruiters, and employers may see. The benefit is that DMV does not treat the PJC as a conviction for the automatic 20-13.2(a) one year revocation. When you reach the end of a revocation period, restoration is not automatic. DMV requires you to satisfy its reinstatement conditions, which include serving the full period of revocation, submitting proof of financial responsibility with a DL-123 form from your insurance carrier, and complying with any zero-alcohol conditions that apply after restoration under N.C.G.S. 20-19 and related provisions. For someone whose record includes an underage DUI, those conditions can include a requirement that you drive with a 0.00 alcohol concentration for a defined period after your license is returned. The practical result is that the license fallout from an underage DUI often lasts longer and feels more restrictive than the criminal sentence imposed in district court. Even when the judge appears lenient, the civil side through DMV keeps working in the background, and each revocation tied to the same incident needs to be identified, tracked, and addressed before you are back to full, unrestricted driving.

A limited driving privilege may be available after a conviction for Driving After Consuming Under 21, but only if very specific statutory criteria are met. N.C.G.S. 20-138.3 does not automatically authorize a privilege. Instead, the privilege is controlled by N.C.G.S. 20-13.2 and applies only to drivers who were at least eighteen years old at the time of the offense and who have no prior conviction under 20-138.3. If you were seventeen or younger when the offense occurred, the statute does not allow a privilege under any circumstances. Even when eligibility exists, the judge may grant a privilege only after the one-year revocation has begun and only if you submit the documentation required for restoration purposes. That includes a DL-123 form to show financial responsibility and completion of an alcohol assessment with compliance with any recommended education or treatment. The privilege is limited to specific driving purposes, hours, and routes and remains subject to the zero-alcohol restrictions that apply to drivers who regain their license after alcohol-related conduct under N.C.G.S. 20-19. A privilege is not available if the same incident resulted in a conviction for impaired driving under N.C.G.S. 20-138.1. The additional one-year revocation mandated by N.C.G.S. 20-13.2(b) for someone under twenty-one convicted of DWI bars the issuance of a limited driving privilege. The same is true when a willful refusal has been entered under N.C.G.S. 20-16.2, because a refusal revocation carries its own restrictions and procedures that do not permit a privilege during the active refusal period. Because multiple revocations can arise from the same event, determining whether a privilege is legally permitted requires identifying every revocation entered by DMV, the order in which they begin, and the restoration conditions tied to each statute. A privilege may be possible in a narrow set of 20-138.3-only cases, but it remains unavailable in any scenario involving a DWI conviction or an active refusal revocation.

N.C.G.S. 20-138.3 contains a specific exception for lawfully obtained prescription medications taken in therapeutically appropriate amounts. If a controlled substance is prescribed to you and you take it as directed, the presence of that substance in your system does not by itself violate the statute. This exception does not apply to alcohol, and it does not apply when a medication was not prescribed, was taken in excess of the prescribed dosage, or was used in a manner inconsistent with the prescription. The exception also does not shield you from prosecution under N.C.G.S. 20-138.1 if the medication causes appreciable impairment. Even a lawful and properly prescribed medication can support an impaired driving charge when it affects your ability to operate a vehicle safely. The distinction is important: the prescription exception prevents a conviction under 20-138.3 based solely on the presence of a controlled substance, but it does not prevent an impaired driving allegation if the State presents evidence of appreciable impairment.

Marijuana is a controlled substance, and N.C.G.S. 20-138.3 technically reaches any amount of a controlled substance remaining in the body of a driver under twenty one. In theory, that language can cover marijuana, because laboratory testing may detect tetrahydrocannabinol (THC) or its metabolites in blood or urine after use. The statute does not draw a separate category for marijuana, and the limited prescription-medication exception in 20-138.3 does not extend to non-prescribed marijuana products. In practice, using marijuana alone as the basis for a 20-138.3 charge raises difficult proof questions. THC and its metabolites can remain detectable long after any effect on driving has faded. A blood or urine result that reports only the presence of metabolites may show that you used marijuana at some point, but it does not tell the Finder of Fact when you consumed it or whether any active THC remained in your body at the time of driving. North Carolina does not have a per se marijuana limit comparable to the 0.08 standard for alcohol. Without clear evidence tying the test result to the time of driving, the State may face a challenge on whether the “after consuming” element has been met. Because of those scientific limitations, prosecutors who believe marijuana affected driving often rely on N.C.G.S. 20-138.1 and focus on appreciable impairment supported by observations, admissions, and field testing rather than on metabolites alone. A 20-138.3 charge based solely on a marijuana metabolite is vulnerable to careful cross-examination about timing, dosage, and the difference between active THC and inactive breakdown products. A lawyer familiar with both the statute and the toxicology can help evaluate whether the State’s proof connects marijuana use to the actual act of driving, or whether the evidence shows no more than historical exposure.

Courts treat charges under N.C.G.S. 20-138.3 with a level of seriousness that mirrors traditional impaired driving cases because the policy concerns behind both offenses are closely aligned. Even though 20-138.3 is classified as a Class 2 misdemeanor and does not involve the DWI sentencing statute in N.C.G.S. 20-179, the bench understands that alcohol use by inexperienced drivers presents safety risks that resemble those seen in impaired driving cases. Judges frequently order alcohol assessments, compliance with education or treatment recommendations, community service, and periods of abstention from alcohol as conditions of judgment or probation. These conditions reflect the broader legislative intent behind zero-tolerance enforcement, which is to deter underage consumption of alcohol in any amount before driving. Many young drivers and their families expect a penalty closer to a standard traffic offense because the statute does not require proof of appreciable impairment. They quickly learn that the courts view the underlying behavior through the same public-safety lens that informs DWI sentencing. The result is that the practical impact of a 20-138.3 conviction often feels comparable to a regular DWI, even though the legal framework is different.

An underage DUI conviction carries consequences that extend far beyond the district court judgment. Although the offense is a Class 2 misdemeanor, a conviction under N.C.G.S. 20-138.3 becomes part of your permanent record and appears on background checks used by employers, professional licensing boards, military recruiters, colleges, graduate programs, and housing providers. Alcohol-related driving offenses draw scrutiny because they raise concerns about judgment, risk, and safety. The effect is long-lasting, and the passage of time does not remove the record. Insurance consequences can be substantial. A conviction can lead to significantly higher premiums for several years, and some carriers decline to renew coverage for young drivers with an alcohol-related conviction. For someone beginning college, training for a trade, or starting a new job, the financial impact often exceeds the fine, court costs, or community conditions imposed in district court. The administrative consequences through DMV also matter. A conviction under N.C.G.S. 20-138.3 requires a one-year license revocation under N.C.G.S. 20-13.2(a). Restoration is not automatic when the revocation period ends. DMV requires a current DL-123 to show financial responsibility and compliance with any post-reinstatement conditions, including zero-alcohol requirements that may apply for a defined period under N.C.G.S. 20-19. When the same incident produces an impaired driving conviction under N.C.G.S. 20-138.1 or a willful refusal revocation under N.C.G.S. 20-16.2, each revocation runs under its own statute and must be satisfied before unrestricted driving can resume. The timelines may run concurrently, but each revocation still requires separate identification, tracking, and compliance. If even one revocation is left unresolved, reinstatement is delayed regardless of how the criminal case was resolved months earlier. For young adults planning military service, competitive scholarships, internships, or early professional licensing, a conviction under 20-138.3 can create long-term obstacles unrelated to criminal sentencing. These wider effects are why criminal defense lawyers analyze the statutory elements, DMV consequences, potential defenses, and available dispositions before advising on a plea. Understanding the full range of consequences helps families make informed decisions about how to approach an underage DUI charge at the earliest stages of the case.

Most underage DUI charges in Mecklenburg County begin in Charlotte’s administrative misdemeanor courtroom, commonly Courtroom 1130, although there are exceptions. When the underage DUI charge is tied to a more serious allegation, such as an impaired driving case that could serve as a predicate for a felony death by vehicle prosecution, the file may follow a different pathway and appear on a different calendar. The first setting is therefore a scheduling and status date rather than a trial on the merits. If you appear in Courtroom 1130 without a lawyer, the judge will confirm that you understand the charge, explain the nature of the allegation under N.C.G.S. 20-138.3, and ask how you intend to handle representation. The Court (the Judge) will want to know whether you plan to hire counsel, ask for court-appointed counsel, or represent yourself. If you request a court-appointed lawyer, qualify financially as “indigent,” and the Court determines that the defendant is likely to receive an active or suspended sentence of imprisonment (including a suspended sentence with probation conditions), the judge may appoint counsel and continue the case to a later date so that the attorney can be notified and begin work on the file. If you intend to retain a lawyer, the court will typically allow additional time for you to do so before expecting any substantive decisions about how to resolve the case. When you retain counsel before the first date in Administrative Courtroom 1130, your lawyer often appears on your behalf, particularly for Class 2 misdemeanors such as a violation of N.C.G.S. 20-138.3. Whether you personally need to attend the first setting is determined based on local practice and the specific mix of charges. For example, appearances in Courtroom 1150, while also technically an administrative setting, ordinarily require the attendance of the accused, even when represented by legal counsel. In many, if not underage DUI charges in Charlotte, your lawyer can handle the initial administrative appearance in Courtroom 1130, obtain the next court date, and begin evaluating the file while you continue school or work obligations, provided you stay in close contact and comply with instructions from counsel. The first court date is not a trial and is not the setting at which evidence is presented or witnesses are called. The officer is not present in Courtroom 1130 in Charlotte on that initial date, and the Court does not expect you to know how you want to plead before you have had a meaningful opportunity to talk with a lawyer. The docket is busy, and the judge’s primary focus at that stage is making sure each case is matched with counsel, placed on the proper calendar, and set on a timeline that allows the parties to prepare. Pleas and contested hearings on underage DUI charges occur later, once the case has been moved to the appropriate courtroom where the State and the defense are prepared to address the evidence. Missing the first court date can create avoidable problems. If you fail to appear when you are ordered to be in court and no lawyer is present to address your absence, the judge may authorize an order for your arrest, and the clerk may report a failure to appear to the Division of Motor Vehicles. That can lead to additional license consequences and, in some circumstances, added costs and fees that have nothing to do with the merits of the underage DUI charge. Even when the underlying case is defensible, a failure to appear complicates the process and often reduces your options. For families dealing with an underage DUI in Charlotte, the first court date should be treated as a procedural checkpoint rather than a final decision point. The most productive use of that appearance is to make sure the case is in the correct courtroom, that you have legal counsel involved in an early (timely) stage of the process, and that deadlines and future dates are clearly understood. The Underage DUI lawyers at Powers Law Firm in Charlotte, North Carolina (Mecklenburg County) are available for legal consultation and would honored to explain what to expect in Courtroom 1130 and help you avoid missteps that turn a manageable case into a more difficult problem.