GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	3 

HOUSE BILL 134
Committee Substitute Favorable 3/1/95
Senate Judiciary I/Constitution Committee Substitute Adopted 5/25/95

Short Title:  DMV/DOT Technical Changes.	(Public)

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Sponsors: 

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Referred to:  

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February 8, 1995

A BILL TO BE ENTITLED
AN ACT TO MAKE TECHNICAL AND CLARIFYING CHANGES TO THE MOTOR VEHICLE LAWS AND OTHER LAWS CONCERNING THE DEPARTMENT OF TRANSPORTATION, AND TO VALIDATE CERTAIN RECORDED INSTRUMENTS WHERE SEALS HAVE BEEN OMITTED.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 20-16.2 reads as rewritten:
"§ 20-16.2.  Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.
(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 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 the officer has reasonable grounds to believe that the person charged has committed the implied-consent offense.
Except as provided in this subsection or subsection (b), before any type of chemical analysis is administered 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 the person a notice in writing that:
(1)	The person has a right to refuse to be tested.
(2)	Refusal to take any required test or tests will result in an immediate revocation of the person's 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 the person's refusal, will be admissible in evidence at trial on the offense charged.
(4)	The person's driving privilege will be revoked immediately for at least 10 days if:
a.	The test reveals an alcohol concentration of 0.08 or more; or
b.	The person was driving a commercial motor vehicle and the test reveals an alcohol concentration of 0.04 or more.
(5)	The person may choose a qualified person to administer a chemical test or tests in addition to any test administered at the direction of the charging officer.
(6)	The person has the right to call an attorney and select a witness to view for him or her the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time when the person is notified of his or her rights.
If the charging officer or an arresting officer is authorized to administer a chemical analysis of a person's breath, the charging officer or the arresting officer may give the person charged the oral and written notice of rights required by this subsection.  This authority applies regardless of the type of chemical analysis designated.
(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 the person is arrested for it or if criminal process for the offense has been issued.  A 'charging officer' is a law-enforcement officer who arrests the person charged, lodges the charge, or assists the officer who arrested the person or lodged the charge 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.
(b)	Unconscious Person May Be Tested. – If a charging officer has reasonable grounds to believe that a person has committed an implied-consent offense, and the person is unconscious or otherwise in a condition that makes the person incapable of refusal, the charging officer may direct the taking of a blood sample by a person qualified under G.S. 20-139.1 or may direct the administration of any other chemical analysis that may be effectively performed.  In this instance the notification of rights set out in subsection (a) and the request required by subsection (c) are not necessary.
(c)	Request to Submit to Chemical Analysis; Procedure upon Refusal. – The charging officer, in the presence of the chemical analyst who has notified the person of his or her rights under subsection (a), must request the person charged to submit to the type of chemical analysis designated.  If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.  If the person refuses to submit to the chemical analysis, the charging officer and the chemical analyst must without unnecessary delay go before an official authorized to administer oaths and execute an affidavit stating that the person charged, after being advised of his or her rights under subsection (a), willfully refused to submit to a chemical analysis at the request of the charging officer.  The charging officer must immediately mail the affidavit to the Division.  If the person's refusal to submit to a chemical analysis occurs in a case involving death or critical injury to another person, the charging officer must include that fact in the affidavit mailed to the Division.  If the charging officer is also the chemical analyst who has notified the person of his or her rights under subsection (a), the charging officer may perform alone the duties of this subsection.
(d)	Consequences of Refusal; Right to Hearing before Division; Issues. – Upon receipt of a properly executed affidavit required by subsection (c), the Division must expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division.  Except for the time referred to in G.S. 20-16.5, if the person shows to the satisfaction of the Division that his or her license was surrendered to the court, and remained in the court's possession, then the Division shall credit the amount of time for which the license was in the possession of the court against the 12-month revocation period required by this subsection.  If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws the request, or the person fails to appear at a scheduled hearing.  The hearing officer may subpoena any witnesses or documents that the hearing officer deems necessary.  The person may request the hearing officer to subpoena the charging officer, the chemical analyst, or both to appear at the hearing if the person makes the request in writing at least three days before the hearing.  The person may subpoena any other witness whom the person deems necessary, and the provisions of G.S. 1A-1, Rule 45, apply to the issuance and service of all subpoenas issued under the authority of this section.  The hearing officer is authorized to administer oaths to witnesses appearing at the hearing.  The hearing must be conducted in the county where the charge was brought, and must be limited to consideration of whether:
(1)	The person was charged with an implied-consent offense;
(2)	The charging officer had reasonable grounds to believe that the person had committed an implied-consent offense;
(3)	The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
(4)	The person was notified of his or her rights as required by subsection (a); and
(5)	The person willfully refused to submit to a chemical analysis upon the request of the charging officer.
If the Division finds that the conditions specified in this subsection are met, it must order the revocation sustained.  If the Division finds that any of the conditions (1), (2), (4), or (5) is not met, it must rescind the revocation.  If it finds that conditions (3) is alleged in the affidavit but is not met, it must order the revocation sustained if that is the only condition that is not met; in this instance subsection (d1) does not apply to that revocation.  If the revocation is sustained, the person must surrender his or her license immediately upon notification by the Division.
(d1)	Consequences of Refusal in Case Involving Death or Critical Injury. – If the refusal occurred in a case involving death or critical injury to another person, no limited driving privilege may be issued.  The 12-month revocation begins only after all other periods of revocation have terminated unless the person's license is revoked under G.S. 20-28, 20-28.1, 20-19(d), or 20-19(e).  If the revocation is based on those sections, the revocation under this subsection begins at the time and in the manner specified in subsection (d) for revocations under this section.  However, the person's eligibility for a hearing to determine if the revocation under those sections should be rescinded is postponed for one year from the date on which the person would otherwise have been eligible for such a hearing.  If the person's driver's license is again revoked while the 12-month revocation under this subsection is in effect, that revocation, whether imposed by a court or by the Division, may only take effect after the period of revocation under this subsection has terminated.
(e)	Right to Hearing in Superior Court. – If the revocation is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court for a hearing de novo upon the issues listed in subsection (d), in the same manner and under the same conditions as provided in G.S. 20-25 except that the de novo hearing is conducted in the superior court district or set of districts as defined in G.S. 7A-41.1 where the charge was made.
(e1)	Limited Driving Privilege after Six Months in Certain Instances. – A person whose driver's license has been revoked under this section may apply for and a judge authorized to do so by this subsection may issue a limited driving privilege if:
(1)	At the time of the refusal the person held either a valid driver's license or a license that had been expired for less than one year;
(2)	At the time of the refusal, the person had not within the preceding seven years been convicted of an offense involving impaired driving;
(3)	At the time of the refusal, the person had not in the preceding seven years willfully refused to submit to a chemical analysis under this section;
(4)	The implied-consent offense charged did not involve death or critical injury to another person;
(5)	The underlying charge for which the defendant was requested to submit to a chemical analysis has been finally disposed of:
a.	Other than by conviction; or
b.	By a conviction of impaired driving under G.S. 20-138.1, at a punishment level authorizing issuance of a limited driving privilege under G.S. 20-179.3(b), and the defendant has complied with at least one of the mandatory conditions of probation listed for the punishment level under which the defendant was sentenced;
(6)	Subsequent to the refusal the person has had no unresolved pending charges for or additional convictions of an offense involving impaired driving; and
(7)	The person's license has been revoked for at least six months for the refusal.
Except as modified in this subsection, the provisions of G.S. 20-179.3 relating to the procedure for application and conduct of the hearing and the restrictions required or authorized to be included in the limited driving privilege apply to applications under this subsection.  If the case was finally disposed of in the district court, the hearing must be conducted in the district court district as defined in G.S. 7A-133 in which the refusal occurred by a district court judge.  If the case was finally disposed of in the superior court, the hearing must be conducted in the superior court district or set of districts as defined in G.S. 7A-41.1 in which the refusal occurred by a superior court judge.  A limited driving privilege issued under this section authorizes a person to drive if the person's license is revoked solely under this section or solely under this section and G.S. 20-17(2).  If the person's license is revoked for any other reason, the limited driving privilege is invalid.
(f)	Notice to Other States as to Nonresidents. – When it has been finally determined under the procedures of this section that a nonresident's privilege to drive a motor vehicle in this State has been revoked, the Division must give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.
(g)	Repealed by Session Laws 1973, c. 914.
(h)	Repealed by Session Laws 1979, c. 423, s. 2.
(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 or her 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 the request in writing and must be notified:
(1)	That the test results will be admissible in evidence and may be used against the person in any implied-consent offense that may arise;
	(2)	That the person's license will be revoked for at least 10 days if:
a.	The test reveals an alcohol concentration of 0.08 or more; or
b.	The person was driving a commercial motor vehicle and the test results reveal an alcohol concentration of 0.04 or more.
(3)	That if the person fails to comply fully with the test procedures, the officer may charge the person with any offense for which the officer has probable cause, and if the person is charged with an implied-consent offense, the person's refusal to submit to the testing required as a result of that charge would result in revocation of the person's driver's license.  The results of the chemical analysis are admissible in evidence in any proceeding in which they are relevant."
Sec. 2.  G.S. 20-79.7(b) reads as rewritten:
"(b)	Distribution of Fees. – The Special Registration Plate Account and the Collegiate and Cultural Attraction Plate Account are established within the Highway Fund.  The Division must credit the additional fee imposed for the special registration plates listed in subsection (a) among the Special Registration Plate Account (SRPA), the Collegiate and Cultural Attraction Plate Account (CCAPA), and the Natural Heritage Trust Fund (NHTF), which is established under G.S. 113-77.7, as follows:
Special Plate	SRPA	CCAPA	 NHTF
Historical Attraction	 $10	 $20	  0
In-State Collegiate Insignia	 $10	 $15	  0
Out-of-state Collegiate Insignia	 $10	   0	$15
Personalized	 $10	   0	 	$10
Special Olympics	 $10	 $15	  0
State Attraction	 $10	 $20	  0
Wildlife Resources	 $10	 $10	  0
All other Special Plates	 $10	   0	  0."
Sec. 3.  G.S. 20-82 is repealed.
Sec. 4.  G.S. 20-118(b)(12) reads as rewritten:
"(12)	Subsections (b) and (e) of this section do not apply to a vehicle that meets one of the following descriptions, is hauling agricultural crops from the farm where they were grown to first market, is within 35 miles of that farm, does not operate on an interstate highway while hauling the crops, and does not exceed its registered weight:
a.	Is a five-axle combination with a gross weight of no more than 88,000 pounds, a single-axle weight of no more than 22,000 pounds, a tandem-axle weight of no more than 42,000 pounds, and a length of at least 51 feet between the first and last axles of the combination.
b.	Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 761, s. 13.
c.	Is a four-axle combination with a gross weight that does not exceed the limit set in subdivision (b)(3) of this section, a single-axle weight of no more than 22,000 pounds, and a tandem-axle weight of no more than 42,000 pounds."
Sec. 5.  G.S. 20-297 reads as rewritten:
"§ 20-297.  Retention and inspection of certain records.
(a)	Vehicles. – A dealer must keep a record of all vehicles received by the dealer and all vehicles sold by the dealer.  The records must contain the information that the Division requires.
(b)	Inspection. – The Division may inspect the pertinent books, records, letters, and contracts of a licensee relating to any written complaint made to the Division against the licensee."
Sec. 6.  G.S. 20-88(f) is repealed.
Sec. 7.  G.S. 20-135.2B(b) reads as rewritten:
"(b)	Subsection (a) of this section does not apply in any of the following circumstances:
(1)	An adult is present in the bed or cargo area of the vehicle and is supervising the child.
(2)	The child is secured or restrained by a seat belt manufactured in compliance with Federal Motor Vehicle Safety Standard No. 208, installed to support a load strength of not less than 5,000 pounds for each belt, and of a type approved by the Commissioner.
(3)	An emergency situation exists.
(4)	The vehicle is being operated in a parade pursuant to a valid permit.
(5)	The vehicle is being operated in an agricultural enterprise.
(6)	The vehicle is being operated in a county that has no incorporated area with a population in excess of 3,500."
Sec. 8.  G.S. 20-141.3(a) reads as rewritten:
"(a)	It shall be unlawful for any person to operate a motor vehicle on a street or highway willfully in prearranged speed competition with another motor vehicle.  Any person violating the provisions of this subsection shall be guilty of a Class 1 misdemeanor."
Sec. 9.  G.S. 20-141.3(b) reads as rewritten:
"(b)	It shall be unlawful for any person to operate a motor vehicle on a street or highway willfully in speed competition with another motor vehicle.  Any person willfully violating the provisions of this subsection shall be guilty of a Class 2 misdemeanor."
Sec. 10.  G.S. 20-183.2(b)(5) reads as rewritten:
"(5)	It meets any of the following descriptions:
a.	It is required to be registered in an emissions county.
b.	It is part of a fleet that is operated primarily in an emissions county.
c.	It is offered for rent in an emissions county.
d.	It is offered for sale by a dealer in an emissions county and is not a new vehicle that has not been titled.
e.	It is operated on a federal installation located in an emissions county and it is not a tactical military vehicle. Vehicles operated on a federal installation include those that are owned or leased by employees of the installation and are used to commute to the installation and those owned or operated by the federal agency that conducts business at the installation.
f.	It is otherwise required by 40 C.F.R. Part 51 to be subject to an emissions inspection."
Sec. 11.  G.S. 20-183.8C(c) reads as rewritten:
"(c)	Type III. – It is a Type III violation for an emissions self-inspector, an emissions inspection station, or an emissions inspection mechanic to do any of the following:
(1)	Fail to post an emissions license issued by the Division.
(2)	Fail to send information on emissions inspections to the Division at the time or in the form required by the Division."
Sec. 12.  G.S. 20-183.12 is repealed.
Sec. 13.  G.S. 20-305(5)b.6. reads as rewritten:
	"6.	Whether the establishment of an additional new motor vehicle dealer or relocation of an existing new motor vehicle dealer in the relevant market area would increase competition in a manner such as to be in the long-term public interest; and".
Sec. 14.  G.S 136-66.1(4) reads as rewritten:
"(4)	If the governing body of any municipality determines that it is in the best interest of its citizens to do so, it may expend its funds for the purpose of making any of the following improvements on streets that are within its corporate limits and form a part of the State highway system:
a.	Construction of curbing and guttering.
b.	Adding of lanes for automobile parking.
c.	Constructing street drainage facilities which may by reasonable engineering estimates be attributable to that amount of surface water collected upon and flowing from municipal streets which do not form a part of the State highway system.
d.	Constructing sidewalks.
e.	Intersection improvements, if the governing body determines that such improvements will decrease traffic congestion, improve safety conditions, and improve air quality.
	In exercising the authority granted herein, the municipality may, with the consent of the Department of Transportation, perform the work itself, or it may enter into a contract with the Department of Transportation to perform such work. Any work authorized by this subdivision shall be financed entirely by the municipality and be approved by the Department of Transportation.
	The cost of any work financed by a municipality under this subdivision may be assessed against the properties abutting the street or highway upon which such work was performed in accordance with the procedures of either Article 10 of Chapter 160A of the General Statutes or any charter provisions or local acts applicable to the particular municipality."
Sec. 15.  G.S. 136-92 reads as rewritten:
"§ 136-92.  Obstructing highway drains prohibited.
It is unlawful to obstruct a drain along or leading from any public road in the State.  A person who violates this section is responsible for an infraction."
Sec. 16.  G.S. 47-108.11 reads as rewritten:
"§ 47-108.11.  Validation of recorded instruments where seals have been omitted.
In all cases of any deed, deed of trust, mortgage, lien or other instrument authorized or required to be registered in the office of the register of deeds of any county in this State where it appears of record or it appears that from said instrument, as recorded in the office of the register of deeds of any county in the State, there has been omitted from said recorded or registered instrument the word 'seal,' 'notarial seal' and that any of said recorded or registered instruments shows or recites that the grantor or grantors 'have hereunto fixed or set their hands and seals' and the signature of the grantor or grantors appears without a seal thereafter or on the recorded or registered instrument or in all cases where it appears there is an attesting clause which recites 'signed, sealed and delivered in the presence of,' and the signature of the grantor or grantors appears on the recorded or registered instrument without any seal appearing thereafter or of record, then all such deeds, mortgages, deeds of trust, liens or other instruments, and the registration of same in the office of the register of deeds, are hereby declared to be in all respects valid and binding and are hereby made in all respects valid and binding to the same extent as if the word 'seal' or 'notarial seal' had not been omitted, and the registration and recording of such instruments in the office of the register of deeds in any county in this State are hereby declared to be valid, proper, legal and binding registrations.
This section shall not apply in any respect to any instrument recorded or registered subsequent to January 1, 1995 or to pending litigation or to any such instruments now directly or indirectly involved in pending litigation."
Sec. 17.  Sections 8, 9, and 15 of this act become effective July 1, 1995, and apply to offenses occurring on or after that date.  The remainder of this act is effective upon ratification.