Juveniles and the Law of Impaired Driving

Published for NC Criminal Law on February 28, 2023.

What law applies when a juvenile is suspected of impaired driving? If the juvenile is 16- or 17-years-old, the criminal law applies in the same way that it applies to someone aged 18 or older. These offenses are carved out of juvenile jurisdiction (G.S. 7B-1501(7)b.) They are therefore criminal matters from their inception. However, if the juvenile is under age 16 at the time of the offense, the case is a juvenile matter from its inception. This blog explains how cases alleging impaired driving under the age of 16 should proceed pursuant to the Juvenile Code.

Implied Consent Procedures Do not Apply in Delinquency Matters

G.S. 20-16.2(a) states that “[a]ny 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. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.” Application of the implied consent law therefore turns on whether a person is “charged” with an implied consent offense. G.S. 20-16.2(a1) defines a person “charged” as someone who is “arrested for it (an implied consent offense) or if criminal process for the offense has been issued.” (emphasis added).

Arrest and criminal process are not part of the Juvenile Code. G.S. 7B-1900 directs that a law enforcement officer may take a juvenile into “temporary custody” if grounds exist for the “arrest of an adult in identical circumstances under G.S. 15A-401(b).” While the Juvenile Code refers only to taking juveniles into temporary custody, the criminal law in G.S. 15A-401 is explicit about arrest. This is one of the many distinctions between juvenile law and criminal law—juveniles are “taken in custody” while adults are “arrested.”

It is also long-established in North Carolina law that a delinquency proceeding is a civil proceeding. In re Burrus, 275 N.C. 517 (1969), G.S. 7B-2412. Because it is a civil proceeding, the pleading in a delinquency matter is a petition. G.S. 7B-1801. Criminal process is not issued. A person who is suspected of impaired driving while under the age of 16, and subject to juvenile jurisdiction, can therefore never meet the definition of someone who is “charged” with an implied consent offense. They are neither arrested nor will criminal process be issued in the matter. Because they are not considered “charged,” the law of implied consent does not apply.

Alcohol Screening Tests

The statute that allows for alcohol screening test administration when a person is suspected of driving under the age of 21 after consuming alcohol or drugs has different language than the law that dictates when implied consent procedure applies. G.S. 20-138.3 establishes that it is unlawful for a person under age 21 to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while previously consumed alcohol or a controlled substance (not lawfully obtained and taken in therapeutically appropriate amounts) remains in their body. Subdivision (b2) of this statute states that an alcohol screening test may be administered to a driver who is “suspected of” violating this statute.

This permission to conduct an alcohol screening test sits outside the law of implied consent and does not explicitly connect only to criminal procedure. It is structured to “notwithstand” any other provision of law. In addition, juvenile petitions must allege a criminal offense, even though the proceeding is civil in nature. G.S. 7B-1802. A juvenile under age 16 can therefore be “suspected of violating” G.S. 20-138.3(a), even though they cannot be criminally prosecuted for that violation. As I read these statutes together, it appears that there is authority to conduct an alcohol screening test on anyone suspected of driving by a person under the age of 21 after consuming alcohol or drugs, including juveniles who are under the age of 16. There is no case law that addresses whether my reading is accurate.

Chemical Analysis

While the law of implied consent does not apply to juveniles under the age of 16, the law governing search of a juvenile’s person does apply. Juveniles have the ability to consent to a search, including the type of search carried out by a chemical analysis. As with searches of adults, consent must be voluntary.

If a juvenile does not consent, then there are three potential pathways to obtain chemical analysis.

  1. A search warrant can be issued to require chemical analysis. As I described in my blog last month on Nontestimonial Identification Orders in Delinquency Matters, chemical analysis in this circumstance is done in order to prove the elements of impaired driving, not to identify the juvenile as the perpetrator. Therefore, a nontestimonial identification order is not needed. Instead, this is a search of the juvenile’s person for evidence that an offense was committed. Therefore, a search warrant is needed to compel chemical analysis in this situation.
  2. It is likely that a breath test may be legally administered as a search incident to taking a juvenile into custody. The Supreme Court held that warrantless breath tests incident to arrest are permitted under the Fourth Amendment in Birchfield v. North Dakota, 579 U.S. 438 (2016). While the language of this decision relates to arrest, there is generally no distinction in Fourth Amendment jurisprudence (outside of the schoolhouse) that distinguishes the legal standards in juvenile matters from those that apply in criminal matters. It is therefore likely that this holding applies in juvenile matters. For more information on this case, see Shea Denning’s blog here.
  3. It is also likely that blood can be drawn when the juvenile is unconscious and suspected of DWI under the exigency standard established by the Supreme Court in Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019). You can read more about this standard in Shea Denning’s blog post here. Because the decision in Mitchell was based on Fourth Amendment jurisprudence, and there is little distinction in the application of Fourth Amendment law to juveniles (outside of the schoolhouse), it is again likely that the standard applies in a juvenile matter.

Dispositions for Driving While Impaired Are Governed By the Juvenile Code

Because these cases are delinquency matters under juvenile jurisdiction, the procedure is governed by the usual Juvenile Code process of adjudication followed by disposition. The criminal sentencing and punishment provisions in G.S. 20-179 do not apply. Instead, the juvenile court must conduct a dispositional hearing and follow the law in Article 25 of Chapter 7B of the General Statutes governing dispositional levels and alternatives for juveniles who have been adjudicated delinquent. Juveniles adjudicated delinquent for driving while impaired are subject to the same range of dispositional alternatives as juveniles adjudicated delinquent for other offenses. The available options are governed by the juvenile’s dispositional level. The court has the authority to select from the statutorily available options for the applicable disposition level.

DMV Notification and Impact on Driving Privileges

The revocation process for people charged with implied consent offenses (G.S. 20-16.5) does not apply in juvenile matters because, as explained above, the law of implied consent does not apply to drivers who are under the age of 16. Therefore, revocation reports should not be completed in delinquency cases and there is no associated report of revocation to DMV.

The question of whether an adjudication for impaired driving will impact a juvenile’s driving privileges is answered by the disposition ordered in the case. One of the dispositional alternatives available to the court for any juvenile who is ordered to a Level 1 or Level 2 disposition is that the court may “[o]rder that the juvenile shall not be licensed to operate a motor vehicle in the State of North Carolina for as long as the court retains jurisdiction over the juvenile or for any shorter period of time. The clerk of court shall notify the Division of Motor Vehicles of that order.” G.S. 7B-2506(9). If the court includes such an order in the disposition, then DMV receives notice. If such an order is not included as part of the disposition, there is no impact on the juvenile’s driving privileges and there is no notice to DMV.

In a Nutshell

While it is easy to get lost in some of the weeds here, there is one overarching construct to remember. If a juvenile who is under the age of 16 is suspected of impaired driving, the case is a delinquency matter governed by the Juvenile Code. Implied consent procedures do not apply. When in doubt, defer to the procedure that is used in all other delinquency matters. Any connection to driving privileges will be determined by the court as part of the dispositional order.

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