GENERAL ASSEMBLY OF NORTH CAROLINA
1995 SESSION
CHAPTER 163
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) He 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 his 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 his the person's refusal, will be admissible in
evidence at trial on the offense charged.
(4) His 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. He The
person was driving a commercial motor vehicle and the test reveals an
alcohol concentration of 0.04 or more.
(5) He The
person may have a qualified person of his own choosing 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) He 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 he 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 and the charging officer designates a chemical analysis of the blood
of the person charged, 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 he 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 him 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. Then 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 his 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, he 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 his the request, or he the
person fails to appear at a scheduled hearing. The hearing officer
may subpoena any witnesses or documents he 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 he
the person makes the request in writing at least three days before
the hearing. The person may subpoena any other witness he 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 pursuant to 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 he 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 he 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, he the person had not within the preceding seven years
been convicted of an offense involving impaired driving;
(3) At the time of the
refusal, he 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
he the defendant has complied with at least one of the mandatory
conditions of probation listed for the punishment level under which he the
defendant was sentenced;
(6) Subsequent to the
refusal he the person has had no unresolved pending charges for
or additional convictions of an offense involving impaired driving; and
(7) His 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 his 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 he 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 his the
request in writing and he must be notified:
(1) That the test results
will be admissible in evidence and may be used against him the person
in any implied-consent offense that may arise;
(2) That his 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. He The
person was driving a commercial motor vehicle and the test results reveal
an alcohol concentration of 0.04 or more.
(3) That if he the
person fails to comply fully with the test procedures, the officer may
charge him the person with any offense for which the officer has
probable cause, and if he the person is charged with an
implied-consent offense, his the person's refusal to submit to
the testing required as a result of that charge would result in revocation of his
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 Recreation
and Natural Heritage Trust Fund (RNHTF), (NHTF), which is
established under G.S. 113-77.7, as follows:
Special
Plate
SRPA
CCAPA RNHTE 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.
Inspection of records, etc. 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 letters,
and contracts of a licensee relating to any written complaint made to him
against such 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 shall not apply when: 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; 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;
Commissioner.
(3) An emergency situation
exists; 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; or enterprise.
(6) the The vehicle
is being operated in a county which 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 2 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 1 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. 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 shall determine 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 which and form a part of the State highway
system:
a.
Construction of curbing and guttering; guttering.
b. Adding of
lanes for automobile parking; 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;
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 pursuant to 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 misdemeanor. prohibited.
Any person who shall obstruct any drains It is
unlawful to obstruct a drain along or leading from any public road in the State
shall be guilty of a Class 3 misdemeanor, and punished only by a fine of not
less than ten ($10.00) nor more than one hundred dollars ($100.00). 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, 1991, 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.
In the General Assembly read three times and ratified this the 5th day of June, 1995.
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Dennis A. Wicker
President of the Senate
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Harold J. Brubaker
Speaker of the House of Representatives