Underage Drinking and Driving Laws in North Carolina 
Parents remember what it was like to be young. That’s why they are concerned about the dangers of underage drinking and driving. The timeless excuse of “everybody has done it” means very little when your son or daughter gets arrested and charged. Of course, every parent would prefer that scenario to getting a phone call telling them their child has been in a serious accident. There are so many opportunities and peer pressure to “drink at the game” or “house party” and then get on the road to go home. That’s when really bad things can happen. If your child is arrested, we can help. You can always learn a lesson. Let’s just hope and pray no one gets seriously injured or worse. First, we will paraphrase the law itself and then explain the real life, practical consequences.
§ 20-138.3. Driving by person less than 21 years old after consuming alcohol or drugs (in relevant part):
(a) It is unlawful for a person less than 21 years old to drive a motor vehicle while consuming alcohol or while he has any remaining alcohol or controlled substance in his body. However, it is not a violation of this section if he drives with a controlled substance lawfully obtained and taken as prescribed. (b) A violation of this section is an alcohol-related offense and is subject to the implied-consent provisions. (b1) The mere odor of alcohol on the breath of the driver is insufficient evidence by itself to prove that alcohol was remaining in the driver’s body in violation of this section unless the driver refuses any offered alcohol screening tests or chemical analysis. (b2) An alcohol screening test may be administered, and the results or the driver’s refusal to submit may be used in determining whether alcohol was present in the driver’s body. No alcohol screening tests are valid unless approved by the Department of Health and Human Services and are conducted in accordance with applicable regulations. (c) Punishment – This offense is a Class 2 misdemeanor. It is not, in any circumstances, a lesser included offense of impaired driving. (d) Limited Driving Privilege. – A person who is convicted of violating this section and whose drivers license is revoked solely because of that conviction may apply for a limited driving privilege if: (1) Is 18-20 years old on the date of the offense, and (2) Has not had a prior conviction of a violation of this section.
What Does the Underage Drinking and Driving Law Really Mean?
Let’s start with the basics. The legal drinking age is 21. The legal age to purchase alcohol is also 21. Anyone under 21 who consumes or buys alcohol is already in trouble. So is any person or business who provides or sells alcohol to a minor. But when you get behind the wheel, the violation becomes much more serious. The initial part of the law simply states that it is a crime to consume alcohol or drugs and then drive below 21. However, if you are taking prescription medications as prescribed, you are fine. Many young people take prescribed drugs for a variety of conditions – anxiety, depression, ADHD, asthma, etc. If it is shown that you were taking these medications appropriately, as prescribed, you are not guilty of this charge. The next provision of the law says that the mere scent of alcohol is not enough to prove you guilty unless you refuse any breath or chemical test(s). Because driving is involved, this law makes you subject to implied consent to chemical analysis if you are driving a vehicle on a highway or public access portion of a roadway. Refusal to submit to breath testing can cause you to lose your license. In addition, an officer can even make you submit to blood testing after a warrant is obtained. If convicted, however, you can apply for a limited driving privilege if you are between the ages of 18 and 20 years old. You only get one LDP as it is not available if you are convicted under this section for a second or subsequent time. Police are always on special alert for teenage drivers, especially boys. If they see a car load of teenage boys, they are going to pay special attention to their driving. Any issue with driving or a problem with the vehicle can justify a police stop and questioning. Once an officer smells any alcohol, you can expect to be tested. Young drivers are inexperienced, easily distracted, and cause the most accidents on the road. Consequently, police are going to check for alcohol and drugs in an attempt to protect the driving public.
Zero Tolerance for Underage Drinking and Driving
Notice that this law does not have a “presumed legal limit.” In a regular DWI, a blood alcohol concentration (BAC) level of 0.08% gives rise to a presumption of impaired driving. Under this law, no BAC level is required. Instead, ANY residual alcohol or drugs in your system (except for prescription medications taken as directed) is sufficient. Also, there is no requirement to prove bad driving. Only the presence of alcohol or drugs is necessary to be found guilty. In a regular DWI, the reading of the roadside portable breath test is inadmissible in court or administrative hearing (DMV). Here, only a positive result is necessary and can be used in both the criminal and civil (license) part of the offense.
Defenses and Limited Driving Privileges
While there are few defenses available, there is hope if your child is arrested and charged. The usual defense is whether the State can prove driving. In the usual scenario, the officer pulls a car over and cites the driver. No real defense here. The mere odor of alcohol is legally insufficient, but refusal to give a breath sample is admissible and enough to convict. However, in situations where a number of people are standing around a vehicle, the officer may not be able to show which person was driving and when they were behind the wheel. Also, if the police use a breath testing device that has not been approved, any result that the breath testing device returns is inadmissible in court or at a DMV hearing. Most parents are not interested in having their child go through a trial and try to “beat the charge.” However, these are potential defenses that should be investigated and considered. Most parents in these situations call a Charlotte NC DWI attorney for advice and seek representation for obtaining a limited driving privilege. Here, a DWI lawyer can really help your son or daughter obtain what is required to be able to drive again. Here in Mecklenburg County, you need experience in dealing with DWI and judges so that your child can get to school or work. We know and appreciate your desire to do what is best for your child, and we can help guide him or her through the system. Many times, the district attorney may be willing to offer programs so that your child can complete some additional training and have this charge dismissed from their record. One mistake should not result in a permanent criminal record that can interfere with college, scholarships, or employment after they “grow up.” We pledge to do our best for your son or daughter and look forward to answering your questions and concerns. Call our office today for an appointment to sit down with one of our attorneys if you have been charged with underage drinking and driving.