GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	3 

HOUSE BILL 551
Committee Substitute Favorable 4/26/93
Committee Substitute #2 Favorable 6/7/93

Short Title:  No Drivers License Until Treatment.	(Public)
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Sponsors:
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Referred to:  
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March 25, 1993

A BILL TO BE ENTITLED
AN ACT TO IMPOSE CONDITIONS FOR THE RESTORATION OR CONTINUED ENJOYMENT OF A DRIVING PRIVILEGE AFTER A CONVICTION FOR DRIVING WHILE IMPAIRED OR DRIVING WHILE A PROVISIONAL LICENSEE AFTER CONSUMING DRUGS OR ALCOHOL, AND TO PROMOTE COMPLIANCE WITH THESE CONDITIONS.
The General Assembly of North Carolina enacts:
Section 1.  Article 2 of Chapter 20 of the General Statutes is amended by adding the following new sections to read:
"§ 20-17.6.  Restoration of a license after a conviction of driving while impaired or driving while a provisional licensee after consuming alcohol or drugs; effect of failure to comply.
(a)	Certificate of Completion Required. – Before the Division can take one of the following actions concerning the license of a person who was convicted under G.S. 20-138.1 of driving while impaired (DWI), under G.S. 20-138.2 of commercial DWI, or under G.S. 20-138.3 of driving while a provisional licensee after consuming alcohol or drugs, the Division must have received from the Department of Human Resources a certificate of completion for that individual:
(1)	Restore the person's license, if one of the following applies:
a.	The person was convicted under G.S. 20-138.1 of DWI.
b.	The person was convicted under G.S. 20-138.2 of commercial DWI and the person's license was revoked under G.S. 20-17(2).
c.	The person was convicted under G.S. 20-138.3 of driving while a provisional licensee after consuming alcohol or drugs and one of the following applies:
1.	The person's license was revoked for at least one year.
2.	The person's license was revoked for less than one year, it has been at least one year since the person was convicted, and the person did not obtain a license after the revocation period ended.
(2)	End the person's period of disqualification, if the person was convicted under G.S. 20-138.2 of commercial DWI and the person's license was not revoked under G.S. 20-17(2).
(3)	Allow a person who was convicted under G.S. 20-138.3 of driving while a provisional licensee after consuming alcohol or drugs, and whose period of revocation was less than one year, to hold a license obtained by the person after the revocation period ended and before one year elapsed since the person was convicted.
(b)	When Certificate Is Issued. –  A certificate of completion is issued after a person has had a substance abuse assessment and has completed either an alcohol and drug education traffic (ADET) school or a substance abuse treatment program.  Completion of an ADET school is required if none of the following applies; completion of a substance abuse treatment program is required if any of the following applies:
(1)	The person took a chemical test at the time of the offense, and the test revealed that the person had an alcohol concentration at any relevant time after driving of at least 0.20.
(2)	The person has a prior conviction of an offense involving impaired driving.
(3)	The substance abuse assessment identifies a substance abuse disability.
(c)	Notice of Requirement. – When a court reports to the Division a conviction under G.S. 20-138.1 of DWI, under G.S. 20-138.2 of commercial DWI, or under G.S. 20-138.3 of driving while a provisional licensee after consuming alcohol or drugs, the Division must send the appropriate area mental health, developmental disabilities, and substance abuse authority written notice of the conviction and a copy of the driving record of the person convicted.  The appropriate area authority is the area authority for the county in which the conviction occurred.
An area authority that receives notice under this subsection of a conviction must send the person convicted a letter informing the person of the requirements of this section and of the consequences of failing to comply with these requirements.  The area authority must send with the letter a list of each agency or other entity that is authorized to make a substance abuse assessment needed in obtaining a certificate of completion and is located in the catchment area served by the area authority.
(d)	How to Obtain a Certificate. –  To begin the process of obtaining a certificate of completion, a person must have a substance abuse assessment conducted by one of the entities named in the list the person received from the area mental health, developmental disabilities, and substance abuse authority.  If the person had a substance abuse assessment conducted by one of these entities before being sentenced for the offense, the person must report to the area authority within 60 days after the conviction the name of the entity that conducted the assessment and the date the assessment was conducted.  If the person did not have a substance abuse assessment from one of these entities before being sentenced, the person must schedule a substance abuse assessment with one of these entities within 60 days after the person was convicted.  If the entity with which a substance abuse assessment is scheduled is not the area authority, the person must report to the area authority the entity with which the substance abuse assessment is scheduled.  G.S. 122C-142.1 establishes the procedure for the remaining steps in obtaining a certificate of completion.
(e)	When Failure to Comply Is Not Willful. – The Division can take one of the actions listed in subsection (a) of this section if a person fails to obtain a certificate of completion and the Division finds that the person's failure to do so is not willful.  A person's failure is not willful if it is due to one of the following reasons:
(1)	Financial inability to pay the fees imposed under G.S. 122C-142.1 after making a reasonable effort to obtain the funds to do so.
(2)	A reason, other than alcoholism or drug abuse, over which the person had no control.
(f)	Right to Hearing. – A person may obtain a hearing to determine if the person's failure to obtain a certificate of completion is willful by filing a written request for a hearing with the Division.  The Division must conduct a hearing in the county in which the person resides.
The hearing officer assigned to conduct the hearing may subpoena any witnesses or documents the hearing officer considers necessary and may administer oaths to witnesses who testify at the hearing.  The hearing officer must subpoena personnel of an entity at which the person who requested the hearing obtained a substance abuse assessment, attended an ADET school, or had substance abuse treatment when the person makes a written request for the hearing officer to do so at least three days before the hearing.  The person who requested the hearing may subpoena other witnesses.  G.S. 1A-1, Rule 45, applies to a subpoena issued under the authority of this subsection.
A person who requests a hearing has the burden of establishing that the person's failure to obtain a certificate of completion was not willful.  The hearing must be limited to consideration of the following issues concerning that person:
(1)	Whether the person was convicted under G.S. 20-138.1 of DWI, under G.S. 20-138.2 of commercial DWI, or under G.S. 20-138.3 of driving while a provisional licensee after consuming alcohol or drugs.
(2)	Whether the Division has received a certificate of completion from the Department of Human Resources for the person.
(3)	Whether the person willfully failed to obtain a certificate of completion.
A person who is dissatisfied with the Division's decision after the hearing may petition for de novo review in the superior court.  The provisions of G.S. 20-25 for review of decisions concerning discretionary revocations apply to the review of a decision under this subsection.
(g)	Revocation and Disqualification Periods Extended. – The period of revocation for a license that was revoked and cannot be restored under subsection (a) of this section until the Division receives a certificate of completion from the Department of Human Resources is extended until the certificate of completion is received.  The period of disqualification imposed for a conviction under G.S. 20-138.2 of commercial DWI is extended until the Division receives a certificate of completion from the Department of Human Resources.
(h)	Revocation for Failure to Obtain Certificate. – The Division must revoke the license of a person who was convicted under G.S. 20-138.3 of driving while a provisional licensee after consuming alcohol or drugs and to whom all of the following applies:
(1)	The person's license was revoked for less than one year.
(2)	The person obtained a license at the end of the revocation period.
(3)	It has been at least one year since the person was convicted.
(4)	The Division has not received a certificate of completion from the Department of Human Resources for that person.
The period of revocation is indefinite.  The period extends until the Division obtains the required certificate of completion or the person's failure to obtain the certificate is determined not to be willful."
Sec. 2.  G.S. 20-7(i1) reads as rewritten:
"(i1)	A person whose drivers license has been revoked under this Chapter must pay a restoration fee in the following amount:
(1)	For a revocation under a statute other than G.S. 20-13.2, 20-17(2), or 20-17.6(h), the fee is twenty-five dollars ($25.00).
(2)	For a revocation under G.S. 20-17(2), the restoration fee is fifty-five dollars ($55.00) until the end of the fiscal year in which the cumulative total amount of fees deposited under this subsection in the General Fund exceeds five million dollars ($5,000,000), and is thirty dollars ($30.00) after this threshold is reached.
(3)	For a revocation under G.S. 20-13.2 or G.S. 20-17.6(h), the fee is thirty dollars ($30.00).
The fee shall be paid to the Division prior to the issuance to such person of a new drivers license or the restoration of the drivers license. The restoration fee shall be paid to the Division in addition to any and all fees which may be provided by law. This restoration fee shall not be required from any licensee whose license was revoked or voluntarily surrendered for medical or health reasons whether or not a medical evaluation was conducted pursuant to this Chapter.
Except for twenty-five dollars ($25.00) of the fee set in subdivision (2) of this section, fees collected under this subsection shall be credited to the Highway Fund. Twenty-five dollars ($25.00) of the fee set in subdivision (2) of this section shall be deposited in the General Fund. The Office of State Budget and Management shall certify to the Department of Transportation and the General Assembly when the cumulative total amount of fees deposited in the General Fund under this subsection exceeds five million dollars ($5,000,000), and shall annually report to the General Assembly the amount of fees deposited in the General Fund under this subsection.
It is the intent of the General Assembly to annually appropriate the funds deposited in the General Fund under this subsection to the Board of Governors of The University of North Carolina to be used for the Center for Alcohol Studies Endowment at The University of North Carolina at Chapel Hill, but not to exceed this cumulative total of five million dollars ($5,000,000)."
Sec. 3.  G.S. 20-179(m), 20-179(r)(2), and 20-179(t) are repealed.
Sec. 4.  G.S. 20-179(g) reads as rewritten:
"(g)	Level One Punishment. – A defendant subject to Level One 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 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 (i) to require the defendant to serve a term of imprisonment of at least 14 days, or (ii) to require the defendant to serve a term of imprisonment of at least four consecutive days and then be placed under house arrest for twice the length of time remaining in the minimum term prescribed in (i) above.  The judge may impose any other lawful condition of probation.  "
Sec. 5.  G.S. 20-179(h) reads as rewritten:
"(h)	Level Two Punishment. – A defendant subject to Level Two punishment may be fined up to one thousand dollars ($1,000) 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 (i) to require the defendant to serve a term of imprisonment of at least seven days or, (ii) to require the defendant to serve a term of imprisonment of at least two consecutive days and then be placed under house arrest for twice the length of time remaining in the minimum term prescribed in (i) above.  The judge may impose any other lawful condition of probation.  "
Sec. 6.  G.S. 20-179(i) reads as rewritten:
"(i)	Level Three Punishment. – A defendant subject to Level Three 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 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.  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. 7.  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 hundred fifty dollars ($250.00) 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.  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. 8.  G.S. 20-179(k) reads as rewritten:
"(k)	Level Five Punishment. – A defendant subject to Level Five punishment may be fined up to one hundred dollars ($100.00) 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 60 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.  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. 9.  G.S. 20-179.2 is repealed.
Sec. 10.  G.S. 20-179.4(c) reads as rewritten:
"(c)	A fee of one hundred dollars ($100.00) must be paid by all persons serving a community service sentence. That fee must be paid to the clerk of court in the county in which the person is convicted. The fee must be paid in full within two weeks unless the court, upon a showing of hardship by the person, allows him additional time to pay the fee. The person may not be required to pay the fee before he begins the community service unless the court specifically orders that he do so. "
Sec. 11.  Part 4 of Article 4 of Chapter 122C of the General Statutes is amended by adding a new section to read:
"§ 122C-142.1.  Substance abuse services for those convicted of driving while impaired or driving while a provisional licensee after consuming alcohol or drugs.
(a)	Services. – An area authority shall provide, directly or by contract, the substance abuse services needed by a person to obtain a certificate of completion required under G.S. 20-17.6 as a condition for the restoration or continued enjoyment of a drivers license.  A person may obtain the required services from an area facility, from a private facility that has complied with this subsection, or, with the approval of the Department, from an agency that is located in another state.  Before a private facility located in this State provides the substance abuse services needed by a person to obtain a certificate of completion, the facility must notify both the area authority for the catchment area in which it is located and the Department of its intent to provide the services and must agree to comply with the laws and rules concerning these services that apply to area facilities.
(b)	Assessments. – To conduct a substance abuse assessment, a facility shall give a client a standardized test approved by the Department to determine chemical dependency.  Before recommending that a client attend an alcohol and drug education traffic (ADET) school or obtain treatment, a facility shall conduct a clinical interview with the client.  A recommendation shall be reviewed and signed by a certified alcoholism, drug abuse, or substance abuse counselor, as defined by the Commission, or by a physician certified by the American Society of Addiction Medicine (ASAM).
(c)	ADET Schools and Treatment Programs. – An ADET school shall offer the curriculum established by the Commission and shall comply with the rules adopted by the Commission.  A substance abuse treatment program offered to a person who needs the program to obtain a certificate of completion shall comply with the rules adopted by the Commission.
(d)	Tracking. – An area authority that sent a person who needs to obtain a certificate of completion a letter, as required by G.S. 20-17.6, and that has not been contacted by the person within six months after sending the letter shall send the person another letter containing the same information as the first letter.  A private facility or a facility under contract with an area authority that issues a certificate of completion shall send the original certificate of completion to the area authority.  An area authority that issues a certificate of completion or receives a certificate of completion shall forward the original certificate of completion to the Department.
The Department shall review the certificate of completion for accuracy and completeness.  If the Department finds the certificate of completion to be accurate and complete, the Department shall forward it to the Division of Motor Vehicles of the Department of Transportation.  If the Department finds the certificate of completion is not accurate or complete, the Department shall return the certificate of completion to the area authority for appropriate action.
(e)	Fees. – A person who has a substance abuse assessment conducted by an area facility or a private facility for the purpose of obtaining a certificate of completion shall pay to the facility that makes the assessment a fee of seventy-five dollars ($75.00).  Twenty-five dollars ($25.00) of this fee shall be retained by or remitted to the area authority for administrative and tracking costs, and the remainder shall be retained by the facility that conducted the assessment.  A person who attends an ADET school for the purpose of obtaining a certificate of completion shall pay to the area facility that provides the school a fee of seventy-five dollars ($75.00).  A person who attends a substance abuse treatment program conducted by an area facility or a private facility for the purpose of obtaining a certificate of completion shall pay the fee set by the facility for the program.
A facility that provides to a person who is required to obtain a certificate of completion a substance abuse assessment, an ADET school, or a substance abuse treatment program may require the person to pay a fee required by this subsection before it issues a certificate of completion.  As stated in G.S. 122C-146, however, an area facility may not deny a service to a person because the person is unable to pay.
An area authority shall remit to the Department five percent (5%) of each fee paid to the area authority under this subsection by a person who attends an ADET school conducted by the area authority.  The Department may use amounts remitted to it under this subsection only to support, evaluate, and administer ADET schools.
(f)	Out-of-State Services. – A person may obtain a substance abuse service needed to obtain a certificate of completion from a provider located in another state if the service offered by that provider is substantially similar to the service offered by a provider located in this State.  A person who obtains a service from a provider located in another state is responsible for paying any fees imposed by the provider.
(g)	Rules. – The Commission may adopt rules to implement this section.  In developing rules for determining when a person needs to be placed in a substance abuse treatment program, the Commission shall consider diagnostic criteria such as those contained in the most recent revision of the Diagnostic and Statistical Manual or used by the American Society of Addiction Medicine (ASAM)."
Sec. 12.  G.S. 122C-149(b) reads as rewritten:
"(b)	Area authorities may not use funds received under G.S. 90-96.01(a)(4) or G.S. 122C-142.1 to match funds under this section."
Sec. 13.  This act becomes effective January 1, 1994, and applies to offenses occurring on or after that date.