When you are under the legal drinking age, even consuming one sip of alcohol and getting behind the wheel can get you arrested. Under N.C.G.S. § 20-138.3, it is illegal for any person under the age of 21 to drive a motor vehicle on a public street or highway with any alcohol remaining in their body at all. This law is separate and distinct from a Driving While Impaired offense and it can be charged in addition to DWI or by itself if the underage person is not impaired. This offense is an alcohol-related offense subject to implied-consent provisions, meaning that a driver on a public street or highway is subject to alcohol testing and a denial of that testing will result in a driver’s license revocation of one year.
The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver's body in violation of this law unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis. Under those circumstances, the odor of alcohol alone could serve the basis of a conviction for someone consuming alcohol and driving while under 21.
Police may administer an alcohol screening test to a driver suspected of Driving After Consuming Alcohol While Under 21, and the results of an alcohol screening test or the driver's refusal to submit may be used in determining if alcohol was present in the driver's body. These screening tests can even consist of ones not normally admissible for other purposes in court, such as a PBT or preliminary breath test. While the concentration of these presumptive tests are not admissible to prove guilt, the presence or absence of alcohol is a different issue. If a driver under 21 submits to a PBT and it is positive for alcohol, that result can be used to convict them of this crime.
A conviction for this offense is a class 2 misdemeanor and punishment will result in a driver’s license revocation of one year. While this offense is not a lesser included offense of DWI and must be charged separately from that offense, punishment for anyone convicted of both cannot exceed the maximum punishment for DWI. Probation is the likely outcome for someone charged with one of these types of offenses, along with completion of an alcohol assessment and treatment. But repeat offenders face jail time, up to 60 days.
Under certain circumstances, an underage driver may qualify for a limited privilege to continue driving when their license has been revoked because of this charge. But that process is complicated and needs a lawyer’s help. Repeat offenders of this law will not qualify for a limited driving privilege and the applicant must be under 21 years of age.
Has your child been charged with Driving After Consuming While Under 21, DWI, or both? You’ll need an experienced attorney who knows the law, knows how to defend them and knows how to fight for their rights. Someone that you can trust with your child’s future. You should contact the offices of Jetton & Meredith right away at (704) 931-5535 so that we can help you today!