ABC THE ABC S OF TRAFFIC LAW: DO S AND DON TS OF TRAFFIC COURT. Traffic 101 Read the Rules.

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1 ABC THE ABC S OF TRAFFIC LAW: DO S AND DON TS OF TRAFFIC COURT Traffic 101 Read the Rules. North Carolina has more roadway miles than any other state except Texas. Our state has a population of over nine million citizens, and an average travel to work time of 24 minutes. Every motorist is a potential traffic client, and North Carolinians spend a lot of time driving. It is important that every attorney know the basics of traffic law. Every prosecutorial district approaches traffic violations with a different mentality. Advice based on specific local guidelines may not be applicable in your practice. Or those guidelines may change daily, depending on which Assistant District Attorney is in the courtroom. Therefore, a Traffic 101 class is very simple. Just read the rules. The worst law professor I ever had repeated this mantra over and over. Her teaching style was The ABC s of Traffic Law 5

2 simple: we literally sat in her classroom for 50 minutes listening to her read straight from the federal civil procedure statute book, word for word, while we calculated how much interest in student loans we were going to have to pay for every minute of class time. But she was right. There is no substitution for actually reading the rules. We live in a world of summaries, cliff notes, charts and cheat sheets. It is easy to think of traffic law as something we can breeze through, keep the big picture in mind, and hope to get an Improper Equipment. This is simply not the case. Some of the most complex matters an attorney will ever deal with involves the interpretation of driving statutes and records, and the navigation of license revocations or potential, hidden consequences. We must know the law, the details, the tricks and consequences of traffic convictions. This truly is a blue collar law issue. The privilege to drive is not a convenience to our clients; it is, in many cases, their life. It is their job, their ability to take their children to school, the only way they can put groceries on the table. That traffic ticket may not be the most important thing on our desk to us, but it is to the client. So that is the entirety of Traffic 101 read the rules. Grab a statute book while waiting on a judge to take the bench. Read the statute of an offense that 6 Chad Garrett

3 you may have handled a thousand times before. Refresh yourself on insurance points, or move beyond the summary chart, and find out why this statute has these consequences. These ABCs are not the basics. They will not tell you how to get an Improper Equipment. Instead, these Do s and Don ts: ABCs of Traffic Law are 26 topics that we all think we know, or may have heard something about, or had a client call us about that one time. Each topic explores a bit beyond the surface of the statute, or consequence, or potential difficulty. DWI topics are only touched upon as they relate to license revocations. I did not summarize the law; there is no shortcut to actually reading the statute, which is why you must read the law presented as well as the commentary. I started with a list of traffic related rules and offenses that I thought I knew by heart. Information that I use everyday, and never have to look up, but ultimately second-guessed myself on. I make split second decisions in court everyday, usually during plea negotiations. If I think I know, or if my client s situation doesn t quite fit my cheat sheet, that split second decision can adversely impact my client The ABC s of Traffic Law 7

4 for years. We have to know the details, and how it all fits together. No one reading this needs to be taught the basics of traffic law, but we do need to be reminded of the law beyond the fundamentals. Traffic law is not easy if you want to be successful at it. And our clients demand it. They deserve it. 8 Chad Garrett

5 A ASSESSMENTS A Sanctions imposed by the DMV must be completed, following a DWI conviction, prior to the reinstatement of a driver s license, even if it was a long, long time ago and you live far, far away. How many times have we received a telephone message that said, so-and-so called, wants help getting his/her license back? If that potential client has a prior DWI conviction, more often than not their license may still be revoked because they have not completed the substance abuse assessment sanction imposed by the DMV. It is easy to tell them to call the DMV, that they didn t finish their treatment, and move on to a potentially more profitable phone call. But anyone who practices traffic law is charged with a simple mission: do not screw up the client s license, and if it is already screwed up, fix it. So, we need a basic understanding of what it means to actually comply with the DMV requirements beyond the parameters of the district court judgment. Some of the most complex matters an attorney will ever deal with involves the complexities of DWI license revo- The ABC s of Traffic Law 15

6 A cations, particularly when dealing with clients who may be out-of-state, or have convictions from years or decades past. Keep in mind, that even if you do not consider yourself a DWI Lawyer, there were 41,927 DWI convictions in NC from July 2009-June 2010 so at least some of those individuals may call you. A basic understanding of what your client faces outside of the courtroom is as invaluable as knowing what can happen within. The first question that a client always asks is how much? Currently, an assessment is $100, a fee set by statute. Most providers will also charge to obtain a NC DMV history at the initial consultation, which generally takes about an hour or an hour and a half. You should at least keep a fair estimation of assessment and treatment prices as part of your general knowledge, even if you do not defend DWIs regularly. Advise your clients to take a copy of their DWI citation, Blood Alcohol Concentration (BAC) report, and, if applicable, an out-of-state driving record with them. Assessments expire within six months. The treatment must begin within six months, but it does not have to be completed. Otherwise a new assessment is required. Never forget that every DWI conviction requires an assessment and treatment, including Level 1s, 2s, Habitual DWIs, and even separate assessments and treatments for multiple DWI convictions during the same court session. Most people are referred to Alcohol 16 Chad Garrett

7 and Drug Education Traffic Schools (ADETS) (which is considered education), but refusals, BACs above.14, and most prior offenders receive actual treatment recommendations. A For those clients who insist that they completed treatment, but never received credit, give them the benefit of the doubt. However, politely remind them that it is a moot point: the magic form releasing the stop on their license, called a 508 R, must be sent directly to the DMV from the treatment provider. Which is why it is always a good idea to make your own referrals to someone reputable, who will still be in business years from now. The official word is that it takes three to ten business days from the receipt of the 508 R form to clear the stop on your clients license. Out-of-state clients are often the most problematic, but are also the most in need of accurate advice. Per N.C.G.S. 122C-142.1(g), assessments and education/treatment may be completed in the client s home state. After completion, a NC treatment provider must review the documentation from the outof-state provider, and then, if acceptable, submit the necessary paperwork to the NC DMV. Always have your client contact an authorized treatment provider in NC prior to starting their assessment in another state. Pre-approval is the key, especially since the NC The ABC s of Traffic Law 17

8 A agency will charge for their services whether or not they accept your client s out-of-state documentation. When you send your clients to pick-up their newly reinstated holy grail of a license, remind them to bring a DL-123 (proof of insurance), a social security card or payroll check with a valid social security number, a picture ID or old driver s license, and cash $75 for a reinstatement fee, $10 for a duplicate license fee, and some extra for what? money, as something always seems to pop up. And of course it goes without saying that they should have paid that pesky $100 civil revocation fee long before getting this far Restoration of a license after a conviction of driving while impaired or driving while less than 21 years old after consuming alcohol or drugs (a) Scope. - This section applies to a person whose license was revoked as a result of a conviction of any of the following offenses: (1) G.S , driving while impaired (DWI). (2) G.S , commercial DWI. (3) G.S , driving while less than 21 years old after consuming alcohol or drugs. 18 Chad Garrett

9 (4) G.S A, driving a commercial motor vehicle with an alcohol concentration of greater than 0.00 and less than 0.04, if the person s drivers license was revoked under G.S (a)(13). A (5) G.S B, driving a school bus, a school activity bus, or a child care vehicle with an alcohol concentration of greater than 0.00, if the person s drivers license was revoked under G.S (a)(14). (b) Requirement for Restoring License. - The Division must receive a certificate of completion for a person who is subject to this section before the Division can restore that person s license. The revocation period for a person who is subject to this section is extended until the Division receives the certificate of completion. (c) Certificate of Completion. - To obtain a certificate of completion, a person must have a substance abuse assessment and, depending on the results of the assessment, must complete either an alcohol and drug education traffic (ADET) school or a substance abuse treatment program. The substance abuse assessment must be conducted by one of the entities authorized by the Department of Health and Human Services to conduct assessments. G.S. 122C describes the procedure for obtaining a certificate of completion. The ABC s of Traffic Law 19

10 A (d) Notice of Requirement. - When a court reports to the Division a conviction of a person who is subject to this section, the Division must send the person written notice of the requirements of this section and of the consequences of failing to comply with these requirements. The notification must include a statement that the person may contact the local area mental health, developmental disabilities, and substance abuse program for a list of agencies and entities in the person s area that are authorized to make a substance abuse assessment and provide the education or treatment needed to obtain a certificate of completion. (e) Effect on Limited Driving Privileges. - A person who is subject to this section is not eligible for limited driving privileges if the revocation period for the offense that caused the person to become subject to this section has ended and the person s license remains revoked only because the Division has not obtained a certificate of completion for that person. The issuance of limited driving privileges during the revocation period for the offense that caused the person to become subject to this section is governed by the statutes that apply to that offense. 20 Chad Garrett