State v. Benbow

610 S.E.2d 297, 169 N.C. App. 297, 2005 N.C. App. LEXIS 687
CourtCourt of Appeals of North Carolina
DecidedApril 5, 2005
DocketNo. COA04-785.
StatusPublished

This text of 610 S.E.2d 297 (State v. Benbow) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Benbow, 610 S.E.2d 297, 169 N.C. App. 297, 2005 N.C. App. LEXIS 687 (N.C. Ct. App. 2005).

Opinion

HUNTER, Judge.

Under N.C. Gen.Stat. § 20-17.8 (2003), an individual who has been convicted of driving while intoxicated with a blood alcohol level of 0.16 or more is subject to a mandatory ignition interlock license restriction if the person's license is reinstated following the revocation period. In this case, the North Carolina Division of Motor Vehicles ("DMV") appeals the trial court's order compelling them to issue a license to Louise Kolar Benbow ("defendant") without the required ignition interlock device. DMV contends the district court: (I) lacked jurisdiction to enter an order compelling them to *298perform an act in violation of statute; (II) violated the constitutional separation of powers by exempting defendant from the statutory ignition interlock requirement; and (III) erred by ordering DMV to reinstate defendant's driver's license without the required ignition interlock restriction. Under the facts of this case, we conclude the trial court erroneously ordered DMV to reinstate defendant's driver's license without the requisite ignition interlock device.

The pertinent facts indicate that defendant was charged with driving while impaired on 16 March 2002. A chemical test of defendant's breath showed an alcohol concentration of 0.16. Defendant was convicted of driving while impaired on 13 November 2002 and was granted an interlock limited driving privilege, which allowed defendant to operate a motor vehicle under certain restrictions. On 13 December 2002, defendant had an ignition interlock device installed on her car. Four days later, she had the device removed because she could not provide a sufficient breath sample for testing by the instrument. On 21 January 2003, Dr. Patrick Healy provided defendant with a medical note which indicated: "She is unable to operate the device on her car to monitor her breathing. She has a cleft palate & a prior history of asthma; these issues may be a factor in her inability to use her breathing force to activate the device." In April 2003, defendant filed a motion to modify her limited driving privilege. On 2 April 2003, the trial court entered an order exempting defendant from the ignition interlock requirement and defendant received a modified limited driving privilege that did not contain the ignition interlock requirement. Defendant's one year revocation period ended on 13 November 2003.

In March 2004, defendant sought reinstatement of her driver's license. She was informed by DMV that she was required by law to have an ignition interlock restriction on her driver's license because she had a blood alcohol level of 0.16 at the time of her driving while impaired arrest. In a 22 March 2004 order, the trial court exempted defendant from the ignition interlock requirement and ordered DMV to reinstate her driver's license without the ignition interlock restriction. DMV appeals.

Defendant was convicted of impaired driving under N.C. Gen.Stat. § 20-138.1 (2001), which provides:

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.

Id. Therefore, under N.C. Gen.Stat. § 20-17(a)(2), defendant's driver's license was subject to mandatory revocation.1 Pursuant to statute, defendant's license was revoked for one year commencing on 13 November 2002 and ending on 13 November 2003. See N.C. Gen.Stat. § 20-19(c1) (2001) (stating "[w]hen a license is revoked under subdivision (2) of G.S. 20-17, and the period of revocation is not determined by subsection (d) or (e) of this section, the period of revocation is one year").

After conviction, the trial court issued defendant an interlock limited driving privilege, which was effective from 13 November 2002 to 13 November 2003. Under N.C. Gen.Stat. § 20-179.3 (2001), a person convicted of driving while impaired may, under certain circumstances, seek a limited driving privilege which would allow a person to drive for essential purposes related to employment, household maintenance, education, court-ordered treatment or assessment, community service ordered as a condition of probation, or emergency medical care. N.C. Gen.Stat. § 20-179.3(g5) (2001) indicates that if a person's driver's license is revoked for a conviction of N.C. Gen.Stat. § 20-138.1, and the person had an alcohol concentration of 0.16 *299or more, a judge shall include the use of an interlock ignition device in the limited driving privilege. However, N.C. Gen.Stat. § 20-179.3(i) indicates the limited driving privilege may be modified. N.C. Gen.Stat. § 20-179.3(i) (2001) provides:

Modification or Revocation of Privilege. - A judge who issues a limited driving privilege is authorized to modify or revoke the limited driving privilege upon a showing that the circumstances have changed sufficiently to justify modification or revocation.... The judge must indicate in the order of modification or revocation the reasons for the order, or he must make specific findings indicating the reason for the order and those findings must be entered in the record of the case.

Id. In this case, defendant was convicted under N.C. Gen.Stat. § 20-138.1 (2001) and she had an alcohol concentration of 0.16. The judge granted her an interlock limited driving privilege which required her to use the ignition interlock device. Upon a showing that defendant could not use the ignition interlock device due to medical conditions substantiated by a doctor's note, the trial court modified the interlock limited driving privilege to exempt defendant from complying with the ignition interlock device pursuant to N.C. Gen.Stat. § 20-179.3(i) (2001). This limited driving privilege expired on 13 November 2003, at the conclusion of the one year revocation period imposed after defendant's conviction. DMV does not challenge the trial court's authority to modify the interlock limited driving privilege in this manner.

DMV does challenge the trial court's actions after defendant's revocation period ended. After defendant's one-year revocation period ended on 13 November 2003, she contacted DMV to have her driver's license restored. Under N.C. Gen.Stat. § 20-17.8 (2003),2 when DMV restores the license of a person convicted of driving while impaired under N.C. Gen.Stat. 20-138.1 and the person had an alcohol concentration of 0.16 or more, the use of an ignition interlock device is required. Specifically, N.C. Gen.Stat. § 20-17.8 (2003) states in pertinent part:

(a) Scope. - This section applies to a person whose license was revoked as a result of a conviction of driving while impaired, G.S. 20-138.1, and:
(1) The person had an alcohol concentration of 0.16 or more; or

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Related

Joyner v. Garrett
182 S.E.2d 553 (Supreme Court of North Carolina, 1971)
In Re Revocation of License to Operate a Motor Vehicle of Wright
46 S.E.2d 696 (Supreme Court of North Carolina, 1948)

Cite This Page — Counsel Stack

Bluebook (online)
610 S.E.2d 297, 169 N.C. App. 297, 2005 N.C. App. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-benbow-ncctapp-2005.