To Fight For Your Rights
How to Get a Limited Driving Privilege After a DWI
Jan 11, 2018
Has your license been suspended or revoked? If so, you're in the right place.
North Carolina Attorney Bill Powers has been representing clients in DWI license suspension and revocation matters since 1992. In this episode, Attorney Powers answers the questions that matter to you when your license has been suspended... Read More.Modified Transcript of “How to Get a Limited Driving Privilege After a DWI” for the Hearing Impaired
Speaker 1: You're listening to Law Talk with Bill Powers, your resource for answers to your most pressing legal questions. Attorney Bill Powers sits down with some of today's leading legal minds to discuss everything from legal issues and legislation to practice tips and policy. Now, here's your host, an NBTA board certified criminal law specialist, former president of the North Carolina Advocates for Justice, and renowned trial lawyer, Bill Powers.
Robert Ingalls: All right. Welcome back to a new episode of Law Talk with Attorney Bill Powers. I am Robert Ingalls, and I will be your guest host for this episode. It is my privilege to be here again with Mr. Powers. How are you today, sir?
Bill Powers: I'm well.
Robert Ingalls: Today, we're going to be talking about DWI limited privilege. How do you lose your license? What steps can you do to get it back? Should you hire an attorney to help you with that process? Bill is going to be giving us all those answers. Ready to get to it?
Bill Powers: I am.
Robert Ingalls: All right, so the first question that I have and the listeners probably have is in what situations does your license get taken away?
Bill Powers: Well, that assumes you actually have a license in the first place, which is normally one of the condition precedence of getting the limited privileges that you have a valid license or maybe it hasn't been expired more than a certain period of time, but we see them in driving while impaired cases normally where you have blown a certain number on the evidentiary device. We refer to that in North Carolina as the ECIR2.
We also see license suspensions related to what we refer to as a willful refusal or refusing to submit to blood or breath testing, and there's a timing issue involved because there are also times where you will see a suspension due to the number coming back on blood, which may be a delay.
As I think most people probably understand, it takes a while to get blood test results back from a lab, and so it may be several months before a suspension goes into effect for what we refer to as a 20-138.3 or 28-138.1, 2 or 3 type of offense, which is the general statute regarding driving while impaired, or driving while subject to impairing substances as a CDL operator, or as ... and I mentioned the 20-138.3 for being underage, which when you're not allowed to have any alcohol in your system. That can have an effect to your license as well, which may or may not fall within limited privileges, but you asked when suspension is taking place, so that's normally when you see it in a way to higher refusal where you're not supposed to be drinking and driving at all.
Robert Ingalls: For the listener, I will link those statutes in the show notes and on the blog for you.
Bill Powers: Sure.
Robert Ingalls: Those are the things that can get you suspended. Under what circumstances if you're suspended can a person then get limited privileges?
Bill Powers: Well, this is one of those areas of law that there are so many different possibilities and paths you can go down. There's not an absolute right answer. I think it makes sense to focus on some big picture, big ticket type of items, and when I'm speaking to someone on the phone, I'm normally trying to find out a little bit about what happened factually or procedurally in the case that caused the revocation or suspension. I want to confirm that there has indeed been a suspension. They're supposed to normally give you some paperwork saying, "I'm taking your license."
Then, we start the process of preparing the documentation and paperwork needed or necessary under the statutes to get the license back, so we may need an alcohol assessment. We may need a form from your insurance company. In North Carolina, we call that a DL123. In South Carolina, they call it something else. We may need documentation regarding where you work, the hours that you work, location, things of that nature.
Robert Ingalls: Perfect. Is there any specific things that a person can do on their own to qualify like if they've just been suspended? Let's say they were pulled over. They received a DWI. They were suspended. Is there something they can do today?
Bill Powers: There's something you shouldn't do today, and it happens with enough frequency that I feel it's probably important to talk about. I think sometimes people get out of jail and they think, "Well, I got to go to work, so I'm just going to go online and get me a duplicate." It happens. I know you're smiling, but it does happen. In legal, in specific legal language, we always say, "Don't do that," because it actually can cause more problems for ...
Robert Ingalls: If you were to get pulled over while you were driving with this duplicate license, is that going to get you in even more trouble?
Bill Powers: It could. In fact, depending on the time even, there are so many different ways, so I don't want to say there's an absolute, but you could be looking at another relatively serious, a separate offense as well as a violation of terms of release from jail. They normally tell you not to operate a motor vehicle until property license. The reason that I put a pause in there is that normally, when you're charged for driving while impaired and you have an .08 or higher, there's an administrative revocation or suspension for a 30-day period, but it's not absolute.
For example, there are times that you can challenge administratively, civilly the revocation, which in Charlotte, it actually takes place at the courthouse, but it's actually ... your other side is the attorney general's office as opposed to prosecuting office as opposed to a limited privilege that you may obtain after a 10-day period, so while they may revoke your license for 30 days for being charged or suspend, and by the way, I use the terms interchangeably. There is a difference, but most people ... I want to keep it basic as much as I can now already in this answer.
After about a 10-day period, if you get your alcohol assessment, if you have a DL123, if you get the paperwork and documentation together, you may be eligible to drive for, what we refer to as a pretrial limited driving privilege from day 11 to day 30, and then on day 30, you may be eligible to get your regular license back by paying some sort of restoration fee. Right now, it's a hundred bucks, but there are a lot of moving parts involved with that.
For example, if you have a willful refusal, the process of obtaining a privilege or even if that's possible is different as would be if you are driving on a class A commercial driver's license, they may order you to turn in your license for a class A CDL and issue a class C, but there are parts after parts and layers after layer on this type of issue. Yes, you can, but it's really complicated.
Robert Ingalls: Now, when you get a limited privilege, does that ... Right in the name, it says limited. Does that mean there are certain places that you can go? Can you just ...
Bill Powers: Mm-hmm (affirmative).
Robert Ingalls: Okay. Tell me about that.
Bill Powers: Sure. Well, the first thing is there are limitations by the statutes with the people on Jones Street. That's where the North Carolina General Assembly is at the North Carolina Legislature where they put in the laws, the general statutes. These are the conditions, so that's the big overlay. The second aspect to be and important to recognize is that limited privileges, whether to pretrial or post-conviction limited privileges as issued by the judge as opposed to DMV, there's a difference, are always in the discretion of the court, and so they can limit in their discretion, and I have seen differences amongst jurisdictions of where people have been allowed to drive.
I've had judges say, "Well, I don't particularly like this person working at an establishment that sells alcohol, and so I'm not going to allow you to drive to certain places." The standard hours, which are defined generally across the state for a privilege are 6:00 a.m. to 8:00 p.m. The standard days are Monday through Friday, and the standard purposes, normally, we refer to them as household maintenance, is getting back and forth to work, maybe going to grocery store, and taking care of some items of your household.
Now, we can regularly do get limited privileges for extended hours or extent circumstance. We normally need some level of additional documentation, and the courts look at the them and make sure that they're appropriate. HECA I guess have a year or two ago now that legislature putting into effect that you can ... There's a prevision that you can drive to church, which they added in there. Some judges make you come to court with us. There's a local jurisdiction union county in Monroe. It's not unusual for us to meet the client at the courthouse and present the documentation to the court. It's a little bit more formalized. That's what that particular judge and that jurisdiction wants to do, and there are other jurisdictions where the DA doesn't even want to sign off on the petition, which ... There's a special form. We advise them on the privilege, and we approach the court, and the court just signs off on the things filed.
There are restrictions. The biggest restriction on a limited driving privilege is probably the most obvious that you cannot have any booze in your system or on your breath while you're driving around on that, and so I tell people, when we prepare the things, I read it over to them beforehand, and then I read it over with them again. I'd say, "Remember, this is limited. There are restrictions, and if you don't follow those restrictions, there are consequences. One, they'll take the license, and two, you're probably subjecting yourself to a whole new set of problems and criminal charges, and maybe problems with DMV as well."
Robert Ingalls: It leads me into my next question. If you had that limited privilege, so let's say that you work on Friday nights doing whatever, if you are coming home from work, is there a particular route that they're going to hold you to?
Bill Powers: Wow, great question. Yes, they can do that. A lot of people don't realize that there could be route restrictions, and there's actually a space. It is something I've had judges say, "Bill, I want to know the route. I want to know not only what time they leave to go to work," and we normally ... They're given some grace period if they work at 7:00 a.m. and they get off at 7:00 p.m. They're given a certain amount of time to leave the home and a certain amount of time to get back home, and then I've also had judges say, "I want to know the specific route. I want you to ... You turn right on the Carmel Road, and you go up to Providence. Turn left."
Yes, they can do that, and there's a tremendous amount of discretion to forward it to the court. Frankly, I don't disagree with that, judges signing a piece of paperwork. Now, you've not been convicted of anything. I want to point that out on a pretrial privilege. On a post-conviction privilege, different story, but you've been accused of a pretty serious offense, and they are signing a piece of paper that says, "I'm going to allow you to drive. I'm going to trust you that you're not going to do this again," and it's on them at least politically and publicly if something bad happens and you're violating the privilege. You're going to see the news report. "Why are judges allowing people to drive around? They had a pending charge."
Robert Ingalls: Sure.
Bill Powers: They don't always understand that you're being charged and not being convicted on pretrial privileges, but I understand why judges look at them very carefully. They want to make sure that you're following through with what they think is appropriate given the nature and circumstances of your case.
Robert Ingalls: All right, so let's say I'm supposed to be on Providence Road, and I get caught on 485 near Ballentine. What's going to happen to me at that point?
Bill Powers: Well, there's the practical matter as what's going to happen, and there is some discretion I think in law enforcement to decide whether or not to issue a warning or indeed arrest you. I think in a worst case scenario, you could be charged with driving while license revoked or suspended, or failing to comply with the restrictions on your license. I think some reasonable minds may differ whether that is the same as not wearing your glasses when you're supposed to be driving versus wholeheartedly not compliant with the spirit of the limited privilege.
I don't think this is one area that I would encourage people to challenge their luck on. I would say err on the side of being conservative and making sure that you stay on the path and direction that the court orders. Having said that, most privileges, when you see them, again, as a practical matter, have your home address, have your workplace or workplaces, and maybe where you go get treatment, your assessment agency and recommended treatment, and there's a certain latitude allowed to get there like what happens if you're on ... We use Providence Road. What if there's a wreck on Providence Road? Are you supposed to stay there on Providence Road until they clear the wreck? It's probably not safe. If you're being directed, if the officer is telling you, "Go over here for the detour," and you say, "No, I'm violating my privilege," there's a practical aspect of it. It's easy to focus on these ultra-narrow exceptions, but I think as a big picture, it's better to be a little bit more conservative.
Robert Ingalls: It sounds like what you're saying is you could land yourself in jail if you're not careful.
Bill Powers: Oh, absolutely.
Robert Ingalls: Got you. All right, so I want to back up to something you said a moment ago about the difference between post-conviction and pre-conviction.
Bill Powers: Right.
Robert Ingalls: Tell me a little bit about that. Like what are the differences there?
Bill Powers: Well, I tell clients this in a pretty regular basis that I'm explaining the law, not necessarily defending the law. There are some laws I just fundamentally disagree with, and when you have been charged with driving while impaired, it's a charge. You're not being convicted, and contrary to my personal opinion ... Now, this is not my legal opinion. This is my personal opinion. I think taking someone's driver's license for an extended period of time prior to being convicted is a punishment of sorts.
Robert Ingalls: I would agree with you on a personal level as well.
Bill Powers: Right. Now, the general assembly, not so much, and the courts have said, "Well, we're closed, but we haven't crossed that line yet." Fundamentally, when you're convicted, things are different. You either have admitted responsibility through a plea or you've been found guilty either by the court or a trial, and a judgment has been entered against you, and then you're subjected to the court's will. I think people fail to also recognize that there is a second agency involved, and that has to do with DMV.
Now, you asked the question, "What's difference?" Well, a pretrial limited privilege is not said to be a punishment. It is meant to get your attention. It's meant to make you maybe do a timeout. I got to learn to stop doing these hand motions when we're on this podcast, but imagine like the referee does the best for every timeout. Stop. Get an alcohol assessment. Take a look at what's going on in your life, and during the next 30 days, we're going to limit how much you can drive, the when's, where's, and why's.
That's different than a post-conviction limited driving privilege, which has specific ... The specific purpose is there is a punishment aspect of it. It's not just rehabilitation or helping you maybe take a look at yourself in the mirror, but there is a punishment aspect. There is a consequence to having been convicted driving while impaired, and so they're very similar. In fact, the forms are almost identical. One says pretrial on it. One says limited driving privilege, but they ... and that's why also why I say it's a punishment at someplace because it's the same form. Largely the same form, but there are hyper-technical legal differences. The key or takeaway from this is that they're both serious. They both have negative consequences if you don't comply, and they really long-term can affect your life and your livelihood to be able to get around and take care of the things if you don't follow the rules.
Robert Ingalls: Now, sometimes, I'll see people with little blowing machines in their car that they have to blow into to start the car and things like that. Is that part of post-conviction like after they've convicted, or do they ever get that when it's pretrial?
Bill Powers: Presently, and the reason I say this is these laws are developing over time and the legislature is not ... I don't think is in session right now, but it's probably about to be, and I hear rumblings of possible changes. Generally speaking, presently, it is limited to post-conviction limited privilege, but put an asterisk right there because there are times with DMV that in order to obtain a restoration of a license through DMV and not necessarily to court, they're related, but separate, it could be a condition of restoration.
That device, a lot of people call it the blow and go, is actually called an ignition interlock device. It's very, very similar technology that we use on the handheld device on the side of the road referred to now as an alco-sensor. It's very similar to the device we used downtown to test your breath called the ECIR2. The EC, for the record, stands for Electrochemical, my apologies, as in a fuel cell, so all these use fuel cell devices.
Where we see most of them and indeed in that context is post-conviction, and we tend to see them when someone has a certain reading, namely, a .15 or higher. Now, there are some ... The reason I preface that is that last year, we were at North Carolina talking about lowering that down to all DWIs and anyone that gets a .08 or higher was ... They were proposing that they would get an ignition interlock device, so that did not pass. We're got stuck in committee, but the idea is out there that anyone that gets a conviction of driving while impaired should have an ignition interlock device. There are reasons for doing that and reasons for not doing that, but presently, it's if you have a .15 or higher.
The second aspect of that though is you cannot drive for a period of time. You're not otherwise eligible to get what we call ignition interlock limited driving privilege, it's a mouthful, for 45 days, and that is intended as a punishment. I have client say, "Well, Bill, I need to drive. What do I do for those 45 days?" My response is, "You cannot drive." Even if a judge says, "Well, I'm going to give the person a privilege. I'm going to go ahead and fill it out," the DMV will kick it back. They'll disallow it, and people give me the strange look, and I say, "Well, they can do that. They can supersede or overwrite a judge if it's not authorized under a law.
We also see them with DMV restoration hearings where there have been a series of I'm going to say alcohol-related events. Maybe a series of DWIs over the years. I've seen them lately commonly ordered as a condition of restoration where someone has been found to be a willful refusal. They've gone that minimum sometimes a year, minimum six months revocation for willful refusing. That's a whole another ... We could do a whole another podcast on that, but I am seeing it more frequently with civil restorations as well, and that's again separate and apart from maybe the ankle bracelet that you would wear prior to court, which is also a fuel cell technology. The answer is yes, all of the above. Sorry.
Robert Ingalls: No, it's good. Now, after you've gotten license suspended, is there any type of waiting period based on how long you were suspended before you can apply? Things like that?
Bill Powers: Well, it depends on the basis of the suspension. If you have an ignition interlock limited driving privilege, so post-conviction ignition interlock privilege, yes, there's a 45-day hold before eligibility. If it's a condition of restoration as part of a civil DMV proceeding, you get a hearing, and they say, "We want you to do X, Y, and Z." There normally would not be a further period of suspension and revocation, but that's assuming ... or I don't want to miss the point that you probably ... The whole reason that you're having a hearing in the first place is that you were suspended and not supposed to be driving.
In fact, one of the things in hearings they do and we present to the DMV hearing officer is your record. Sometimes, we present witnesses that attest to the fact that you've not been driving at all. You've had no moving violations, let alone being convicted, which is a whole another issue, and secondly, not been drinking. We actually have ... We bring people who have valid licenses and have known you for a period of time, and they have sufficient contact with you that they can give testimony and saying, "I've not seen the person drive nor have I seen them drinking."
There are hold period restrictions. The DMV could very easily say, "Well, we want you to get an alcohol assessment first. We want you to comply to the treatment." Courts can do that as well. I have seen courts not issue a limited driving privilege until they've done their community service. Otherwise, comply of the judgment, so there are all kinds of options for the court and DMV. Strictly speaking, does there have to be ... Well, there has to be the 45-day one and ignition interlock device. There has to be normally without some administrative relief, the 10-day suspension unless you challenge the civil revocation, the 30-day suspension, and then after that, it's a lot of discretion.
Robert Ingalls: Okay.
Bill Powers: Mm-hmm (affirmative).
Robert Ingalls: Sometimes, I hear people say that their license has been suspended permanently.
Bill Powers: Right.
Robert Ingalls: Does that mean permanently? I mean, can they not drive forever at that point?
Bill Powers: Well, there's permanent, and then there's permanent. This is one of those areas too that as a practitioner, it's mind-boggling because I try to explain what I consider to be just incredibly silly laws to not silly people. There is something called a permanent suspension or a lifelong suspension, and we see that with habitual driving while impaired. It's the death penalty, the death sentence for your driver's license.
We had a law in North Carolina that after a certain period of time, even on habitual permanent revocation, you could get some relief. It was a long time, and that law had a sunset provision. Basically, it was set for a set period of time, and then after that expiration of time, the general assembly said the next general assemblies, whenever that would have to be, could either re-institute the law or not, and they let that die.
Right now, presently, no, there's not that type of habitual driving while impaired penalty or felony DWI. There's not. There are permanent revocations or suspensions that don't really mean permanent. I don't know why they use that term, but they do, and when I first started practicing law in 1992, there actually wasn't offense called "driving while license permanently revoked," and it required ... They had a mandatory minimum 30 days active in jail if you were convicted, and that got changed ... I remember when that one went into effect, but that got changed.
Now, that doesn't mean the judge can't give you active time on jail. It just was required, so if you had DWLR, and that's what lawyers refer to most of the times, and you had a P, which was permanently revoked, it meant something. There are permanent revocations, and there are permanent for a time, and that doesn't mean permanent in my dictionary, but ...
Robert Ingalls: If someone has been permanently revoked, it's probably still worth making a phone call to you?
Bill Powers: Yes, and I will ... The first thing we do is we pull a copy of the driving record. We have an account with DMV, and we pay a fee for that. We normally need your name, date of birth, social security number. People ask, "Why do you ask for my social security number?" I say, "They want it," and then we look at it, and you read them from the back page to the front page from the bottom to the top. I don't know if that ... Is that how they read Japanese or some language? You read them from the bottom to the top because ... and there's a top header section that tells what the status of your license is, and so we make sure ... I'm being somewhat facetious, but I'm sort of not.
I do read them from a certain date and forward, and we start seeing ... It depends on how complex these things, and I've seen record checks that make the rainforest of South America weep with the amount of paper because you have 20 pages, especially as you've gotten older and if you have a history of DMV. Every little ticket you've gotten shows up, and then there may be letters going from the division of motor vehicles to you advising you need a suspension, so that together with the privilege. Sometimes, they can't even fit them inside the court file we refer to as the shock in North Carolina.
By the way, if anyone knows the etymology of shock relating to a court file, I'd love to know. Everyone just calls it that. Statewide, by the way. It's like, "Let me see the shock." I think it has to do with like an ear of corn and shocking it off. It's got a clear little cellophane in front, that type ...
Robert Ingalls: I was thinking maybe an oyster because it's got that little opening on the side.
Bill Powers: Yeah, and like an oyster, if you open it wrong, can cut your hands.
Robert Ingalls: It can.
Bill Powers: There's a complex reading of these things, and here's another key point when you say permanent revoked. If you have an outstanding ticket, and you've not taken care of it, and they do what's called an indefinite suspension or revocation, it is permanent until you take care of that, that underlying offense, so that means forever, and I have people say, "Well, I never had a North Carolina license. How can they suspend it?" Let me disabuse you that. They figured out a way. They assign a number, and they say, "Bill, your number is 123456, and now that we have assigned you a number, don't drive here at North Carolina."
Robert Ingalls: We take that number back.
Bill Powers: Right, and I have people say, "Well, I'm licensed in South Carolina." I'm like, "Great. Don't drive in North Carolina."
Robert Ingalls: Don't cross the line. Are there any situations where a driver cannot apply for limited driving privileges?
Bill Powers: Yes, there are times where you're not even eligible to apply. Lawyers were held to a standard. When we present the paperwork to the court, we are in fact asserting that we believe you're otherwise eligible. That is part of the record review. That's also why ... I guess I'm older now, so I can say as an old-school lawyer, I still pull the full record from the North Carolina Department of Transportation Division of Motor Vehicles, DMV. As much as they will give us, I'd like the full and complete record so I can see the history.
Then, if I have the complete record, I can tell you whether you are eligible or not. There are some companies out there, private agencies that they're data trolls. They troll different court systems, and they will do an unofficial record which ... My response to that is, "Do you want an official driver's license based on the North Carolina law and DMV, or do you want an unofficial driver's license that if it's wrong, there's a problem?" I don't know. I don't mean any offense to those companies. There's a purpose for them for a quick and dirty type of stuff, but when it comes to preparing for a privilege and you being able to drive to work, I go old school, and then I get that from DMV.
Robert Ingalls: Now, it sounds like there's a lot to this process. Is that something that you could do yourself like could I apply for a limited driving privilege myself if I needed it?
Bill Powers: Sure. You always can, and I see people do it. It makes me nervous because if it's done incorrectly, it can cause further problems. It can get expensive if you do it incorrectly because they won't just allow you to correct things without refiling and they tend to charge a new filing fee. Yes, it can be done. In fact, on our website and other materials, we provide links to the Administrative Officer Court's forms. They're called AOC forms. There's a form for a pretrial limited driving privilege and a petition for limited driving privilege. There's a form conviction, post-conviction DWI. There's a form for a willful refusal limited driving privilege. There's a privilege for an ignition interlock limited driving privilege. There's even a privilege for certain speeding tickets.
Yes, you can, but it makes me nervous because I fear you could spend a long time sitting up there and trying to figure out how to do it, and the court system really isn't allowed to ... DAs, prosecutors aren't allowed to explain your options in law, and the judges either review the materials and accept it or don't, and I think you're at a disadvantage. Yes, you can. It's just one of those more complicated areas. This isn't a simple speeding ticket or an inspection violation. I'm sure there are some people completely confident and able to do it. It's just I know how hard we work at doing it and how I ... If we ever have a typo or something, we redo it. So then, we had to refile it, so it's deceptively complicated.
Robert Ingalls: All right, so you've answered all the questions I had. You have any last words on the subject?
Bill Powers: Well, don't be afraid to call a lawyer. We at our office offer a free confidential consultation. I will point you in the right direction. If I think we could help you out, I'll tell you. If I think you can handle it yourself or maybe go another direction, I'll tell you that too. Our lawyers are here to help. We truly do want to help people, and when we don't charge for a consult and it's confidential, why not?
Robert Ingalls: All right. Well, thank you, sir.
Bill Powers: My pleasure.
Robert Ingalls: All right.
Speaker 1: You've been listening to Law Talk with Bill Powers, your resource for answers to your most pressing legal questions on your time. Ready to discuss your matter now? Call 877-462-3841 for your free and totally confidential consultation. Law Talk with Bill Powers is an educational resource only. The information presented on this podcast does not constitute legal advice and is not a substitute for consulting with an attorney. Every situation is unique. Therefore, you should always consult with a license attorney before making any legal decisions. Thanks for listening.