GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

S	5 

SENATE BILL 13*
Judiciary I Committee Substitute Adopted 5/4/89
Third Edition Engrossed 5/11/89
House Committee Substitute Favorable 6/28/89
Fifth Edition Engrossed 7/7/89

Short Title:  Safe Roads Act Study Bill Package.	(Public)
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Sponsors:
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Referred to:  
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January 13, 1989

A BILL TO BE ENTITLED
AN ACT TO IMPLEMENT THE RECOMMENDATIONS OF THE SAFE ROADS ACT STUDY COMMITTEE OF THE LEGISLATIVE RESEARCH COMMISSION.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 20-12.1(a) reads as rewritten:
"(a)	It is unlawful for any person to accompany another person driving a motor vehicle, in accordance with G.S. 20-11, or instruct another person driving a motor vehicle, in accordance with G.S. 20-7(l-1) and (m) or G.S. 20-12:
(1)	While the person accompanying or instructing is 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."
Sec. 2.  G.S. 20-16.2(a) reads as rewritten:
"(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 he is charged with an implied-consent offense. The charging officer must designate the type of chemical analysis to be administered, and it may be administered when he has reasonable grounds to believe that the person charged has committed the implied-consent offense. Except as provided in subsection (b), the person charged must be taken before a chemical analyst authorized to administer a test of a person's breath, who must inform the person orally and also give him a notice in writing that:
(1)	He has a right to refuse to be tested.
(2)	Refusal to take any required test or tests will result in an immediate revocation of his driving privilege for at least 10 days and an additional 12-month revocation by the Division of Motor Vehicles.
(3)	The test results, or the fact of his refusal, will be admissible in evidence at trial on the offense charged.
(4)	If any test reveals an alcohol concentration of 0.08 or more, his driving privilege will be revoked immediately for at least 10 days.
(5)	He may have a qualified person of his own choosing administer a chemical test or tests in addition to any test administered at the direction of the charging officer.
(6)	He has the right to call an attorney and select a witness to view for him the testing procedures, but the testing may not  be delayed for these purposes longer than 30 minutes from the time he is notified of his rights."
Sec. 3.  G.S. 20-16.2(i) reads as rewritten:
"(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 must afford the person the opportunity to have a chemical analysis of his 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 must confirm his request in writing and he must be notified:
(1)	That the test results will be admissible in evidence and may be used against him in any implied-consent offense that may arise;
(2)	That his license will be revoked for at least 10 days if the test reveals an alcohol concentration of 0.08 or more; and
(3)	That if he fails to comply fully with the test procedures, the officer may charge him with any offense for which the officer has probable cause, and if he is charged with an implied-consent offense, his refusal to submit to the testing required as a result of that charge would result in revocation of his driver's license.  The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant."
Sec. 4.  G.S. 20-16.5(b) reads as rewritten:
"(b)	Revocations for Persons Who Refuse Chemical Analyses or Have Alcohol Concentrations of 0.08 or More.–A person's driver's license is subject to revocation under this section if:
(1)	A charging officer has reasonable grounds to believe that the person has committed an offense subject to the implied-consent provisions of G.S. 20-16.2;
(2)	The person is charged with that offense as provided in G.S.  20-16.2(a);
(3)	The charging officer and the chemical analyst comply with the procedures of G.S. 20-16.2 and G.S. 20-139.1 in requiring the person's submission to or procuring a chemical analysis; and
(4)	The person:
a.	Willfully refuses to submit to the chemical analysis; or
b.	Has an alcohol concentration of 0.08 or more within a relevant time after the driving."
Sec. 5. G.S. 20-16.5(b1) reads as rewritten:
"(b1)	Precharge Test Results as Basis for Revocation.–Notwithstanding the provisions of subsection (b), a person's driver's license is subject to revocation under this section if:
(1)	He requests a precharge chemical analysis pursuant to G.S. 20-16.2(i); and
(2)	He has, at any relevant time after the driving, an alcohol concentration of 0.08 or more; and
(3)	He is charged with an implied-consent offense."
Sec. 6.  G.S. 20-138.1(a) reads as rewritten:
"(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."
Sec. 7. G.S. 20-179(m) reads as rewritten:
"(m)	Assessment and Treatment Required in Certain Cases.–If a defendant being sentenced under this section is placed on probation, he shall be required as a condition of that probation to obtain a substance abuse assessment if:
	(1)	He had an alcohol concentration of 0.15 or more as indicated by a chemical analysis taken when he was charged; or
	(2)	He has a prior conviction for an offense involving impaired  driving within the five years preceding the date of the offense for which he is being sentenced and, when he was charged with the current offense, he had an alcohol concentration of 0.08 or more; or
	(3)	He willfully refused to submit to a chemical analysis.
The judge shall require the defendant to obtain the assessment from an area mental health agency, its designated agent, or a private facility licensed by the State for the treatment of alcoholism and substance abuse. Unless a different time limit is specified in the court's judgment, the defendant shall schedule the assessment within 30 days from the date of the judgment.  Any agency performing assessments shall give written notification of its intention to do so  to the area mental health authority in the catchment area in which it is located and to the Department of Human Resources.  The Secretary of the Department of Human Resources may adopt rules to implement the provisions of this subsection, and these rules may include provisions to allow defendant to obtain assessments and treatment from agencies not located in North Carolina.  The assessing agency shall give the client a standardized test, approved by the Department of Human Resources to determine chemical dependency.  A clinical interview concerning the general status of the defendant with respect to chemical dependency shall be conducted by the assessing agency before making any recommendation for further treatment.  A recommendation made by the assessing agency shall be signed by a ‘Certified Alcoholism, Drug Abuse or Substance Abuse Counselor', as defined by the Department of Human Resources.  If the assessing agency recommends that the defendant participate in a treatment program, the judge may require the defendant to do so, and he shall require the defendant to execute a Release of Information authorizing the treatment agency to report his progress to the court or the Department of Correction. The judge may order the defendant to participate in an appropriate treatment program at the time he is ordered to obtain an assessment, or he may order him to reappear in court when the assessment is completed to determine if a condition of probation requiring participation in treatment should be imposed.  An order of the court shall not require the defendant to participate in any treatment program for more than 90 days unless a longer treatment program is recommended by the assessing agency and his alcohol concentration was .15 or greater as indicated by a chemical analysis taken when he was charged or this was a second or subsequent offense within five years.  The judge shall require the defendant to pay fifty dollars ($50.00) for the services of the assessment facility and any additional treatment fees that may be charged by the treatment facility. If the defendant is treated by an area mental health facility, G.S. 122C-146 applies. Any determinations with regard to the defendant's ability to pay the assessment fee shall be made by the judge. In those cases in which no substance abuse handicap is identified, that finding shall be filed with the court. When treatment is required, the treatment agency's progress reports shall be filed with the court or the Department of Correction at intervals of no greater than six months until the termination of probation or the treatment agency determines and reports that no further treatment is appropriate.  Upon the completion of the court-ordered assessment or court-ordered treatment, the assessing or treatment agency shall give the Division of Motor Vehicles the original of the certificate of completion, shall provide the defendant with a copy of that certificate, and shall retain a copy of the certificate on file for a period of five years.  The Division of Motor Vehicles shall not reissue the driver's license of a defendant ordered to obtain assessment or participate in a treatment program unless it has received the original certificate of completion from the assessing or treatment agency, provided, however that a defendant may be issued a limited driving privilege pursuant to G.S. 20-179.3.
The Department of Human Resources may approve programs offered in another state if they are substantially similar to programs approved in this State, and if that state recognizes North Carolina programs for similar purposes.  The defendant shall be responsible for the fees at the approved program."
Sec. 8.  G.S. 20-179(g) reads as rewritten:
"(g)	Level One Punishment. – A defendant subject to Level One punishment may be fined up to five thousand dollars ($5,000) and must be sentenced to a term of imprisonment that includes a minimum term of not less than 14 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 14 days. If the defendant is placed on probation, the judge must, if required by subsections (l) or (m), impose the conditions relating to treatment and education described in those subsections. The judge may impose any other lawful condition of  probation. If the judge does not place on probation a defendant who is otherwise subject to the mandatory assessment and treatment provisions of subsection (m), he must include in the record of the case his reasons for not doing so."
Sec. 9.  G.S. 20-179(h) reads as rewritten:
"(h)	Level Two Punishment. – A defendant subject to Level Two punishment may be fined up to four thousand dollars ($4,000) and must 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 must, if required by subsections (l) or (m), impose the conditions relating to treatment and education described in those subsections. The judge may impose any other lawful  condition of probation. If the judge does not place on probation a defendant who is otherwise subject to the mandatory assessment and treatment provisions of subsection (m), he must include in the record of the case his reasons for not doing so."
Sec. 10.  G.S. 20-179(i) reads as rewritten:
"(i)	Level Three Punishment. – A defendant subject to Level Three  punishment may be fined up to two thousand five hundred dollars ($2,500) and must 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 must be suspended, on 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.
The judge in his discretion may impose any other lawful condition of  probation and, if required by subsections (l) or (m), must impose the conditions relating to treatment and education described in those subsections. This subsection does not affect the right of a defendant to elect to serve the suspended sentence of imprisonment as provided in G.S. 15A-1341(c)."
Sec. 11.  G.S. 20-179(j) reads as rewritten:
"(j)	Level Four Punishment. – A defendant subject to Level Four punishment may be fined up to two thousand dollars ($2,000) and must 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 must be suspended, on 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.
The judge in his discretion may impose any other lawful condition of  probation and, if required by subsections (l) or (m), must impose the conditions relating to treatment and education described in those subsections. This subsection does not affect the right of a defendant to elect to serve the suspended sentence of imprisonment as provided in G.S. 15A-1341(c)."
Sec. 12.  G.S. 20-179(k) reads as rewritten:
"(k)	Level Five Punishment. – A defendant subject to Level Five punishment may be fined up to five hundred dollars ($500.00) and must 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 61 days. The term of imprisonment must be suspended, on 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.
The judge may in his discretion impose any other lawful condition of  probation and, if required by subsections (l) or (m), must impose the conditions relating to treatment and education described in those subsections. This subsection does not affect the right of a defendant to elect to serve the suspended sentence of imprisonment as provided in G.S. 15A-1341(c)."
Sec. 13.    G.S. 20-139.1(b3) reads as rewritten:
"(b3)	Sequential Breath Tests Required. – By January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath must require the testing of at least duplicate sequential breath samples. 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 willful refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a willful refusal under G.S. 20-16.2(c).
If a person willfully refuses to submit to a chemical analysis by refusing to provide a second or subsequent breath sample, then
(i)	The result of the analysis of the sample providing the lowest alcohol concentration, if more than one sample is provided; or
(ii)	If a single sample is provided, the result of that sample
may be used as evidence in any judicial or administrative proceeding for any relevant purpose, including, but not limited to
(i)	The establishment of probable cause;
(ii)	Corroboration of field sobriety tests; or
(iii)	Evidence of impairment
provided, however, the result may not be used to prove that a person had a particular alcohol concentration to establish a violation of G.S. 20-138.1(a)(2)."
Sec. 14.  G.S. 18B-401(a) reads as  rewritten:
"(a)	Opened Containers.–It shall be unlawful for a person to transport, possess, or consume alcoholic beverages in the passenger area of a motor vehicle in other than the manufacturer's unopened original container, except that it shall not be unlawful to transport, possess, or consume alcoholic beverages in the passenger area of a for-hire bus or a for-hire limousine.  It shall also not be unlawful to transport, possess, or consume alcoholic beverages in the passenger area of a house trailer or camper if the living or sleeping area is separated from the driving area.
Violation of this subsection shall constitute a misdemeanor punishable by a fine of twenty-five dollars ($25.00) to five hundred dollars ($500.00), community service of not more than 24 hours, or both."
Sec. 15.  G.S. 20-13.2(d) reads as rewritten:
"(d)	The length of revocation under this section shall be equal to the number of days from the date of the charge to the provisional licensee's 18th birthday or 45 days whichever is longer.  Revocations under this section run concurrently with any other revocations, but a limited driving privilege issued pursuant to law does not authorize a provisional licensee to drive if  his license is revoked under this section."
Sec. 16.  G.S. 20-141.4(a1) reads as rewritten:
"(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 and commission of that offense is the proximate cause of the death.  Involuntary manslaughter under G.S. 14-18 is a lesser included offense."
Sec. 17.  G.S. 20-141.4(b) reads as rewritten:
"(b)	Punishments.–Felony death by vehicle is a Class G felony.  Misdemeanor death by vehicle is a misdemeanor punishable by a fine of not more than five hundred dollars ($500.00), imprisonment for not more than two years, or both, in the discretion of the court."
Sec. 18.  G.S. 20-16.2(a1) reads as rewritten:
"(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 he is arrested for it, criminal process for the offense has been issued, or, if the person is a juvenile, he would have been arrested or criminal process would have been issued if he were an adult. A ‘charging officer' is a law-enforcement officer who arrests the person charged, lodges the charges, takes the juvenile into protective custody, or assists the officer who arrested the person, lodged the charge, or took the juvenile into protective custody 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."
Sec. 19.  G.S. 20-4.01 is amended by adding a new subdivision to read:
"(3c)	‘Commercial Motor Vehicle.'  A vehicle:  (a) which requires the driver to possess a valid Class ‘A' or Class ‘B' drivers license, or a similar drivers license issued by another state; or (b) which is a school bus, school activity bus, church bus, farm bus, ambulance, volunteer transportation vehicle, activity bus operated for a nonprofit organization when the activity bus is operated for a nonprofit purpose, or a fire-fighting vehicle or combination of vehicles when operated by any volunteer member of a municipal or rural fire department in the performance of his duty."
Sec. 20.  G.S. 20-4.01(24a) reads as rewritten:
"(24a)	Offense Involving Impaired Driving. – Any of the following offenses:
a.	Impaired driving under G.S. 20-138.1.
b.	Death by vehicle under G.S. 20-141.4 when conviction is based upon impaired driving or a substantially equivalent offense under previous law.
c.	Second degree murder under G.S. 14-17 or involuntary manslaughter under G.S. 14-18 when conviction is based upon impaired driving or a substantially equivalent offense under previous law.
d.	An offense committed in another jurisdiction substantially equivalent to the offenses in subparagraphs a through c.
e.	A repealed or superseded offense substantially equivalent to impaired driving, including offenses under former G.S. 20-138 or G.S. 20-139.  
f.	Impaired driving in a commercial motor vehicle under G.S. 20-138.2, except that convictions of impaired driving under G.S. 20-138.1 and G.S. 20-138.2 arising out of the same transaction shall be considered a single conviction of an offense involving impaired driving for any purpose under this Chapter.
A conviction under former G.S. 20-140(c)	is not an offense involving impaired driving."
Sec. 21.  G.S. 20-16.2(a)(4) reads as rewritten:
"(4)	His driving privilege will be revoked immediately for at least 10 daysif:
a.	The test reveals an alcohol concentration of 0.08 or more, or
b.	He was driving a commercial motor vehicle and the test reveals an alcohol concentration of 0.04 or more in his blood."
Sec. 22.  G.S. 20-16.2(i)(2) reads as rewritten:
"(2)	That his license will be revoked for at least 10 days if:
a.	The test reveals an alcohol concentration of 0.08 or more; or
b.	He was driving a commercial motor vehicle and the test reveals an alcohol concentration of 0.04 or more in his blood."
Sec. 23.  The catch line of G.S. 20-16.5(b) reads as rewritten:
"Revocations for Persons Who Refuse Chemical Analyses or Have Alcohol Concentrations of 0.08 or More After Driving a Motor Vehicle or 0.04 in Their Blood After Driving a Commercial Vehicle.–".
Sec. 24.  G.S. 20-16.5(b)(4) reads as rewritten:
"(4)	The person:
a.	Willfully refuses to submit to the chemical analysis; or
b.	Has an alcohol concentration of 0.08 or more within a relevant time after the driving; or
c.	Has an alcohol concentration of 0.04 or more within a relevant time after the driving of a commercial motor vehicle."
Sec. 25.  G.S. 20-16.5(b1)(2) reads as rewritten:
"(2)	He has:
a.	An alcohol concentration of 0.08 or more at any relevant time after the driving; or
b.	An alcohol concentration of 0.04 or more at any relevant time after the driving of a commercial motor vehicle; and".
Sec. 26.  Article 2 of Chapter 20 of the General Statutes is amended by adding a new section to read:
"§ 20-17.4.  Mandatory Revocation of a Class A or Class B License.
The Division shall forthwith revoke the Class ‘A' or Class ‘B' license of any driver upon receiving a record of a final conviction of such driver for impaired driving in a commercial vehicle under G.S. 20-138.2.  Under this section only, a final conviction of any driver for violating G.S. 20-138.1 shall not be grounds for revoking the license of such driver."
Sec. 27.  G.S. 20-19 is amended by adding a new subsection to read:
"( c2)	When a license is revoked under G.S. 20-17.4, the period of suspension shall be for one year for the first conviction of G.S. 20-138.2, 10 years for the second conviction of G.S. 20-138.2, and for life for a third or subsequent conviction of G.S. 20-138.2.
This period of suspension applies only to a Class ‘A' or Class ‘B' license and not to a Class ‘C' license."
Sec. 28.  Chapter 20 of the General Statutes is amended by adding a new section to read:
"§ 20-138.2.  Impaired driving in commercial vehicle.
(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 appreciably under the influence of an impairing substance; or
(2)	After having consumed sufficient alcohol that he has, at any relevant time after the driving, 0.04 percent by weight of alcohol in his blood.
	(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.
	(c)	Pleading.–To charge a violation of this section, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges the defendant drove a commercial motor vehicle on a highway, street, or public vehicular area while subject to an impairing substance.
	(d)	Implied Consent Offense.–An offense under this section is an implied consent offense subject to the provisions of G.S. 20-16.2.
	(e)  Punishment; Effect When Impaired Driving Offense Also Charged.–The offense in this section is a misdemeanor punishable by a fine of not less than one hundred dollars ($100.00), up to two years imprisonment, or both.  This offense is not a lesser included offense of impaired driving under G.S. 20-138.1, but if a person is convicted under this section and of an offense involving impaired driving under G.S. 20-138.1 arising out of the same transaction, the aggregate punishment imposed by the court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S. 20-138.1.
	(f)  Limited Driving Privilege.–A person convicted of the offense of impaired driving under this section is eligible for a limited driving privilege if:
(1)	At the time of the offense he held either a valid drivers license or a license that had been expired for less than one year;
(2)	At the time of the offense he had not within the preceding seven years been convicted of an offense involving impaired driving;
(3)	Subsequent to the offense he has not been convicted of, or had an unresolved charge lodged against him for, an offense involving impaired driving;
(4)	The court finds slight impairment of the defendant's faculties, and an alcohol concentration that did not exceed 0.05 at any relevant time after the driving.
	The limited driving privilege under this section shall be issued for the purposes specified in G.S. 20-179.3(a) and according to the procedure in G.S. 20-179.3(d) and G.S. 20-179.3(f)-(k).
	(g)  The provisions of G.S. 20-139.1 shall apply to the offense of impaired driving in a commercial motor vehicle."
Sec. 29.  G.S. 20-138.4 reads as rewritten:
"§ 20-138.4. Requirement that prosecutor explain reduction or dismissal of charge involving impaired driving.
In any case in which a person is charged with an offense involving impaired driving, any prosecutor must enter detailed facts in the record explaining 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."
Sec. 30.  G.S. 20-179(e) reads as rewritten:
"(e)	Mitigating Factors to Be Weighed. – The judge must also determine before sentencing under subsection (f) whether any of the mitigating factors listed below apply to the defendant. The judge must 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 occur during the same transaction or occurrence as the impaired driving offense."
Sec. 31.  G.S. 20-179(c) reads as rewritten:
"(c)	Determining Existence of Grossly Aggravating Factors.–At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge must first determine whether there are any grossly aggravating factors in the case. If the defendant has been convicted of two or more prior offenses involving impaired driving, if the convictions occurred within seven years before the date of the offense for which he is being sentenced, the judge must impose the Level One punishment under subsection (g). The judge must also impose the Level One punishment if he determines that two or more of the following grossly aggravating factors apply:
(1)	A single conviction for an offense involving impaired driving, if the conviction occurred within seven years before the date of the offense for which the defendant is being sentenced.
(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.
If the judge determines that only one of the above grossly aggravating factors applies, he must impose the Level Two punishment under subsection (h). 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).
A conviction for another offense involving impaired driving, for which 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, shall also constitute a prior conviction involving impaired driving for aggravation purposes of this subsection."
Sec. 32.  G.S. 20-16.5(e) reads as rewritten:
"(e)	Procedure if Report Filed with Judicial Official When Person Is Present.–If a properly executed revocation report concerning a person is filed with a judicial official when the person is present before that official, the judicial official must, after completing any other proceedings involving the person, determine whether there is probable cause to believe that each of the conditions of subsection (b) has been met. If he determines that there is such probable cause, he must enter an order revoking the person's driver's license for the  period required in this subsection. The judicial official must order the person to surrender his license and if necessary may order a law-enforcement officer to seize the license. The judicial official must give the person a copy of the revocation order. In addition to setting it out in the order the judicial official must personally inform the person of his right to a hearing as specified in subsection (g), and that his license remains revoked pending the hearing. Unless the person is not currently licensed, the revocation under this subsection begins at the time the revocation order is issued and continues until the person's license has been surrendered for 30 days and the person has paid the applicable costs. If the person is not currently licensed, the revocation continues until 30 days from the date the revocation order is issued and the person has paid the applicable costs. If within five working days of the effective date of the order, the person does not surrender his license or demonstrate that he is not currently licensed, the clerk must immediately issue a pick-up order. The pick-up order must be issued to a member of a local law-enforcement agency if the charging officer was employed by the agency at the time of the charge and the person resides in or is present in the agency's territorial jurisdiction. In all other cases, the pick-up order must be issued to an officer or inspector of the Division. A pick-up order issued pursuant to this section is to be served in accordance with G.S. 20-29 as if the order had been issued by the Division."
Sec. 33.  G.S. 20-16.5(f) reads as rewritten:
"(f)	Procedure if Report Filed with Clerk of Court When Person Not Present.–When a clerk receives a properly executed report under subdivision (d)(3) and the person named in the revocation report is not present before the clerk, the clerk must determine whether there is probable cause to believe that each of the conditions of subsection (b) has been met. If he determines that there is such probable cause, he must mail to the person a revocation order by first-class mail. The order must direct that the person on or before the effective date of the order either surrender his license to the clerk or appear before the clerk and demonstrate that he is not currently licensed, and the order must inform the person of the time and effective date of the revocation and of its duration, of his right to a hearing as specified in subsection (g), and that the revocation remains in effect pending the hearing. Revocation orders mailed under this subsection become effective on the fourth day after the order is deposited in the United States mail. If within five working days of the effective date of the order, the person does not surrender his license to the clerk or appear before the clerk to demonstrate that he is not currently licensed, the clerk must immediately issue a pick-up order. The pick-up order must be issued and served in the same manner as specified in subsection (e) for pick-up orders issued pursuant to that subsection. A revocation under this subsection begins at the date specified in the order and continues until the person's license has been revoked for the period specified in this subsection and the person has paid the applicable costs. The period of revocation under this subsection is:
	(1)	Thirty days from the time the person surrenders his license to the court, if the surrender occurs within five working days of the effective date of the order; or
	(2)	Thirty days after the person appears before the clerk and demonstrates that he is not currently licensed to drive, if the appearance occurs within five working days of the effective date of the revocation order; or
	(3)	Sixty days from the time:
		a.	The person's driver's license is picked up by a law-enforcement officer following service of a pick-up order; or
		b.	The person demonstrates to a law-enforcement officer who has a pick-up order for his license that he is not currently licensed; or
		c.	The person's driver's license is surrendered to the court if the surrender occurs more than five working days after the effective date of the revocation order; or
		d.	The person appears before the clerk to demonstrate that he is not currently licensed, if he appears more than five working days after the effective date of the revocation order.
When a pick-up order is issued, it must inform the person of his right to a hearing as specified in subsection (g), and that the revocation remains in effect pending the hearing. An officer serving a pick-up order under this subsection must return the order to the court indicating the date it was served or that he was unable to serve the order. If the license was surrendered, the officer serving the order must deposit it with the clerk within three days of the surrender."
Sec. 34.  G.S. 20-28(a1) reads as rewritten:
"(a1)	A person convicted under subsection (a) shall be punished as if he had been convicted of driving without a driver's license under G.S. 20-7 if he demonstrates to the court that:
	(1)	At the time of the offense, his license was revoked solely under G.S. 20-16.5; and
	(2)	a.	The offense occurred more than 60 days after the effective date of a revocation order issued under G.S. 20-16.5(f) and the period of revocation was 30 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.
In addition, a person punished under this subsection shall be treated for driver's license and insurance rating purposes as if he had been convicted of driving without a license under G.S. 20-7, and the conviction report sent to the Division must indicate that the person is to be so treated."
Sec. 35. G.S. 20-16.2(a) reads as rewritten:
"(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 he is charged with an implied-consent offense. The charging officer must designate the type of chemical analysis to be administered, and it may be administered when he has reasonable grounds to believe that the person charged has committed the implied-consent offense. Except as provided in subsection (b), the person charged must be taken before a chemical analyst authorized to administer a test of a person's breath, who must inform the person orally and also give him a notice in writing that:
	(1)	He has a right to refuse to be tested.
	(2)	Refusal to take any required test or tests will result in an immediate revocation of his 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 his refusal, will be admissible in evidence at trial on the offense charged.
	(4)	If any test reveals an alcohol concentration of 0.10 or more, his driving privilege will be revoked immediately for at least 30 days.
	(5)	He may have a qualified person of his own choosing administer a chemical test or tests in addition to any test administered at the direction of the charging officer.
	(6)	He has the right to call an attorney and select a witness to view for him the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time he is notified of his rights."
Sec. 36.  G.S. 20-16.2(i) reads as rewritten:
"(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 must afford the person the opportunity to have a chemical analysis of his 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 must confirm his request in writing and he must be notified:
	(1)	That the test results will be admissible in evidence and may be used against him in any implied-consent offense that may arise;
	(2)	That his license will be revoked for at least 30 days if the test reveals an alcohol concentration of 0.10 or more; and
	(3)	That if he fails to comply fully with the test procedures, the officer may charge him with any offense for which the officer has probable cause, and if he is charged with an implied-consent offense, his refusal to submit to the testing required as a result of that charge would result in revocation of his driver's license. The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant."
Sec. 37.  G.S. 20-16.5(k) reads as rewritten:
"(k)	Report to Division.–Except as provided below, the clerk must mail a report to the Division within 10 working days of the return of a license under this section or of the termination of a revocation of the driving privilege of a person not currently licensed. The report must identify the person whose license has been revoked and specify the dates on which his license was revoked. No report need be made to the Division, however, if there was a surrender of the driver's license issued by the Division, a 30-day minimum revocation was imposed, and the license was properly returned to the person under subsection (h) within five working days after the 10-day period had elapsed."
Sec. 38.  This act shall become effective October 1, 1989.