To obtain a conviction of the Class 1 misdemeanor version of DWLR, must the State allege and prove that the DWLR was based on an impaired driving revocation?

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Yes. The General Assembly has created two DWLR offenses: one based on an impaired driving revocation, a Class 1 misdemeanor; and the other based on any other revocation, a Class 3 misdemeanor. Although the two appear in the same statute, G.S. 20-28(a), they are separate offenses. If the State wants to prosecute the Class 1 misdemeanor offense, it must allege in the charging document and prove at trial beyond a reasonable doubt all the elements of the offense, including the impaired driving revocation. See G.S. 15A-924(a)(5) (pleading must allege all elements of offense). If the State fails to allege the impaired driving revocation in the charging document, the court’s jurisdiction is limited to the general Class 3 misdemeanor version of DWLR, which is subject to the fine-only provisions in new G.S. 15A-1340.23(d).

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To obtain a conviction of the Class 1 misdemeanor version of DWLR, must the State allege and prove that the DWLR was based on an impaired driving revocation?

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