Provisional DWI in NC


It is unlawful for a person less than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has remaining in his body any alcohol or controlled substance previously consumed, but a person less than 21 years old does not violate this section if he drives with a controlled substance in his body which was lawfully obtained and taken in therapeutically appropriate amounts.

Modified Transcript of “Provisional DWI in NC” for the Hearing Impaired NCGS 20-138.3:

One thing that I hear from clients, often times when they call for the first time after themselves or somebody else has been charged with an offense, is, “Hey, I was charged with DWI. I wasn’t 0.08 and I wasn’t really impaired, but because I’m not 21, that makes it a DWI,” and that’s actually assumed by many, many people.

It’s not accurate though.

When we talk about driving after consuming being under the age of 21, some people call that provisional. We are not talking about whether or not somebody is impaired. In fact, generally the officer is saying by not charging you with the larger version of DWI that that is not something that is being alleged. It is simply having alcohol in your system not being the age of 21.

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So many times people have said, “Well, doesn’t that affect me the same way?” That’s not the case. Yes, it has some ramifications with respect to licensure and privilege, but there’s a few different things that can be done constructively and literally on an argument or through plea negotiations with the state.

For example, continued judgement is a possibility with provisional; it is not a possibility with respect to DWI. Secondly, provisional is not a grossly aggravating factor nor is it subject to aggravating factors in the way that DWI is. In fact, most factors of in aggravation and mitigation are not really considered because it’s a class 2 misdemeanor. It is not on an island by itself like DWI is in terms of sentencing.

So just keep in mind, we never want anyone to be cavalier about being charged with driving after consuming being under the age of 21. At the end of day, our legislature has said, “If you’re not 21, you should not have 21 in your system and you should not be behind the wheel.”

At the same time, nobody should be doomsday about it and assume that, “Wow, this is analogous to me being convicted of DWI because I only blew a 0.02, but I’m 20 years old.” That’s not the case at all. Most of those situations are much, much more workable than DWIs are.

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