North Carolina Legislation and Continuous Alcohol Monitoring

Last Update: March 21, 2013

North Carolina Legislation and Continuous Alcohol Monitoring

House Bill 494 – 2012
House Bill 49 Laura’s Law – 2011
House Bill 926 – 2009
Senate Bill 1290 – 2007

I. PRETRIAL Applications

A. Pretrial Release – G.S. 15A-534.1(a)(2)(e) (SB1290, 2007)

A Judge may impose the following condition on pretrial release. That the defendant abstain from alcohol consumption, as verified by the use of a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, and that any violation of this condition be reported by the monitoring provider to the district attorney.

B. Mitigating Factors – G.S 20-179(e) (SB1290, 2007)

Complete a substance abuse assessment, comply with the recommendations, and abstain from alcohol consumption as proven by a continuous alcohol monitoring system.
C. Pretrial Use toward eliminating or reducing the minimum detention requirements (See Section II below for Level I and Level II DWI sentencing)

Level One Punishment – Section 9.G.S.20-179(g) (HB494, 2012)
If the defendant was monitored during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 120 day monitoring requirement for probation.

II. Use in DWI Sentencing

A. Level 1-A – G.S.20-179(f3) (HB49 Section 1. – Laura’s Law, 2011).

Defendant may be fined up to $10,000 and shall be sentenced to no less than 12 months and no more than 36 months imprisonment. Defendant will not be eligible for parole but shall be released 4 months before the end of the prison term (Article 84A of Chapter 15A of the General Statutes) and shall be supervised by the Division of Community Corrections and shall be required to be monitored by CAM for a period of 4
months. Imprisonment may be suspended only if a condition of special probation is imposed that requires defendant to abstain from alcohol consumption and be monitored for a minimum of 120 days to a maximum of the term of probation, and must serve at least 120 days in custody.

B. Level One Punishment – Section 9.G.S.20-179(g) (HB494, 2012)

The Level one offender shall be sentenced to a minimum of 30 days and a maximum term of 24 months.
A Judge may reduce the minimum term to no less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored for a period of no less than 120 days. If the defendant was monitored during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 120 day monitoring requirement for probation.

C. Level Two Punishment – Section 9.G.S.20-179(h) (HB494, 2012)

The Level two offender shall be sentenced to a minimum of 7 days and a maximum term of 12 months.
A Judge may suspend the imprisonment if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored for a period of no less than 90 days. If the defendant was monitored during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 90 day monitoring requirement for probation.

D. Any Level of Offense under G.S. 20-170

Special Probation – G.S.20-179(k2)(k3)(k4) (HB494, 2012)

The court may authorize probation officers to require defendant to submit to continuous alcohol monitoring for assessment purposes if the defendant has been required to abstain from alcohol consumption, and the probation officer believes the defendant is consuming alcohol.
The court will not impose continuous alcohol monitoring if the court finds that the defendant should not be required to pay the costs of the continuous alcohol monitoring system, unless the local entity responsible for the incarceration of the defendant in the local confinement facility agrees to pay the costs of the system.

E. Driving While License Revoked – G.S.20-28(a) (HB494, 2012)

If the person’s license was originally revoked for an impaired driving revocation, the court may order as a condition of probation that the offender abstain from alcohol consumption and verify compliance by the use of a continuous alcohol monitoring system for minimum period of 90 days. Driving without maintaining financial responsibility as provided by the law shall be punished as for driving without a license.

III. Probationary Use

A. Community and Intermediate Probation Conditions – G.S. 15A-1343(a1)(4a) (HB494, 2012)

The Court may include the condition of abstaining from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.

B. Special Condition of Probation – G.S. 15A-1343(b1)(2c) (HB494, 2012)
In addition to the regular conditions of probation specified in the subsection (b), the court may, as a condition of probation, require that during probation the defendant abstain from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.

C. Delegated Authority, Probation Violation, Intermediate Punishments – G.S. 15A-1343.2(f) (HB494, 2012)

If the presiding judge finds in the judgment of the court that delegation of authority is appropriate the Section of Community Corrections of the Division of Adult Correction of The Department of Public Safety may require an offender to submit to continuous alcohol monitoring when abstinence from alcohol consumption has been specified as a term of probation. If the Section imposes this requirement then it may subsequently reduce or remove those same requirements.

IV. Child Custody / Visitation

A. G.S.50-13.2(b2) (HB494, 2012)

Any order for custody, including visitation, may require either or both parents, or any other person seeking custody or visitation, to abstain from consuming alcohol as verified by a continuous alcohol monitoring system. The monitoring provider shall report any violation of the order to the court and each party to the action.

 

V. Payment of Continuous Alcohol Monitoring Systems
B. G.S. 15A-1343.3(b) – (HB494, 2012)

Any fees or costs paid by an offender on probation in order to comply with continuous alcohol monitoring, shall be paid directly to the monitoring provider. A monitoring provider shall not terminate the provision of continuous alcohol monitoring for nonpayment of fees unless authorized by the court.

VI. DMV/License Restoration Applications within the CAM Law

A. The CAM related statutes identify CAM as a tool to assess convicted offenders with permanently suspended driver’s licenses for the awarding of a conditionally restored driver’s licenses after 2 years (versus 3 years under pre-existing law), as long as abstinence has been proven by CAM over the last 12 months.

GS G.S. 20 19 (e) (SB1290, 2007)
The Division may conditionally restore the person’s license after it has been revoked for at least 24 months under G.S. 20 17 (a)(2) if the person provides the Division with satisfactory proof that:
(1) He has not consumed any alcohol for the 12 months preceding the restoration while being monitored by a continuous alcohol monitoring device of a type approved by the Department of Correction.
(2) He has not in the period of revocation been convicted in North Carolina or any other state or federal jurisdiction of a motor vehicle offense, an alcoholic beverage control law offense, a drug law offense, or any other criminal offense involving the possession or consumption of alcohol or drugs.
(3) He is not currently an excessive user of drugs or prescription drugs.
(4) He is not unlawfully using any controlled substance.

B. 2009 CAM legislation only addressed DMV applications for CAM. The law specifically authorized the voluntary use of CAM for the purpose of proving abstinence from alcohol in conjunction with restoration hearings relating to a conditional driver’s license

G.S. 20-19(d)(2) (HB 926, 2009)

“(d) When a person’s license is revoked under (i) G.S. 20-17(a)(2) and the person has another offense involving impaired driving for which he has been convicted, which offense occurred within three years immediately preceding the date of the offense for which his license is being revoked, or (ii) G.S. 20-17(a)(9) due to a violation of G.S. 20-141.4(a3), the period of revocation is four years, and this period may be reduced only as provided in this section. The Division may conditionally restore the person’s license after it has been revoked for at least two years under this subsection if he provides the Division with satisfactory proof that:

(1) He has not in the period of revocation been convicted in North Carolina or any other state or federal jurisdiction of a motor vehicle offense, an alcoholic beverage control law offense, a drug law offense, or any other criminal offense involving the possession or consumption of alcohol or drugs; and
(2) He is not currently an excessive user of alcohol, drugs, or prescription drugs, or unlawfully using any controlled substance. The person may voluntarily submit themselves to continuous alcohol monitoring for the purpose of proving abstinence from alcohol consumption during a period of revocation immediately prior to the restoration consideration.
a. Monitoring periods of 120 days or longer shall be accepted by the Division as evidence of abstinence if the Division receives sufficient documentation that reflects that the person abstained from alcohol use during the monitoring period.
b. The continuous alcohol monitoring system shall be a system approved under G.S. 15A-1343.3.
c. The Division may establish guidelines for the acceptance of evidence of abstinence under this subdivision. If the Division restores the person’s license, it may place reasonable conditions or restrictions on the person for the duration of the original revocation period.”

G.S. 20-19(e1)(2) (HB926, 2009)

“(e1) Notwithstanding subsection (e) of this section, the Division may conditionally restore the license of a person to whom subsection (e) applies after it has been revoked for at least three years under subsection (e) if the person provides the Division with satisfactory proof of all of the following:
(1) In the three years immediately preceding the person’s application for a restored license, the person has not been convicted in North Carolina or in any other state or federal court of a motor vehicle offense, an alcohol beverage control law offense, a drug law offense, or any criminal offense involving the consumption of alcohol or drugs.
(2) The person is not currently an excessive user of alcohol, drugs, or prescription drugs, or unlawfully using any controlled substance. The person may voluntarily submit themselves to continuous alcohol monitoring for the purpose of proving abstinence from alcohol consumption during a period of revocation immediately prior to the restoration consideration.
a. Monitoring periods of 120 days or longer shall be accepted by the Division as evidence of abstinence if the Division receives sufficient documentation that reflects that the person abstained from alcohol use during the monitoring period.
b. The continuous alcohol monitoring system shall be a system approved under G.S. 15A-1343.3.
c. The Division may establish guidelines for the acceptance of evidence of abstinence under this subdivision.”

C. Conditional restoration, Medical Exemption to Interlock–DOT Memorandum – May 1, 2008
For driver’s license conditionally restored pursuant to G.S. 20-19(d) and G.S. 20-19(e) the licensee may be granted a medical exemption from the interlock device under G.S. 20-17.8(1). The licensee may use continuous alcohol monitoring, provided by Rehabilitation Support Services as a condition of license restoration.