Can North Carolina's Ignition Interlock Requirement Be Waived?

Attorney Answer

Almost certainly not — and no judge has the power to do it for you.

N.C. Gen. Stat. § 20-17.8 is the statute. It applies to a person whose licence was revoked for impaired driving under § 20-138.1 where (1) the person had an alcohol concentration of 0.15 or more, (2) the person has another impaired-driving conviction for an offense occurring within the seven years immediately preceding the offense for which the licence was revoked, or (3) the person was sentenced under § 20-179(f3). Subsection (a1) adds habitual impaired driving and certain § 20-141.4 convictions. Subsection (b) then provides that, "except as provided in subsection (l)," when the Division restores such a person's licence it shall require the interlock restrictions for the period set in subsection (c).

That quoted exception is the only door, and it is narrow. Subsection (l) is a medical exception, decided by the Division and not by a court. It is available only to a person subject to the section solely under (a)(1), it requires examination by two or more licensed physicians on a certificate the Division prescribes, the burden of proof is on the person seeking it, and a denial may be reviewed by a reviewing board under § 20-9(g)(4). It is about a diagnosed physical condition that makes you incapable of personally activating the device — not cost, not inconvenience, and not the age of the case.

A case that says no to the courtroom route. In *State v. Benbow*, 169 N.C. App. 613, 610 S.E.2d 297 (2005), a district court ordered a driver exempted from the interlock requirement and directed DMV to reinstate her licence without the device. The Court of Appeals reversed. It held the interlock requirement on restoration is mandatory, that DMV's decision is therefore not discretionary, that no right of review lies under § 20-25 where the licence action is mandatory, and that the district court accordingly had no jurisdiction to grant the exemption. This cuts against you: asking a judge is not a route. (Benbow was decided under an earlier version of the statute that contained no exception at all; the medical exception in subsection (l) came later.)

What you can do

1. Ask DMV, in writing, which subsection of § 20-17.8 you are subject to — (a)(1), (a)(2), (a)(3), or (a1). Your 2012 case may or may not fit any of them, and the years of suspension for the missed assessment are a separate matter. If none applies, that is worth resolving before you install anything. 2. If — and only if — (a)(1) is the sole basis and you have a diagnosed physical condition that prevents you from blowing into the device, ask the Division for the subsection (l) certificate form and arrange examinations by two licensed physicians. 3. Do not ask a judge, or write to the court, to waive it. *Benbow* is the answer to that request. 4. Get the interlock period from subsection (c) in writing so you know exactly how long the restriction runs. 5. If the Division denies a subsection (l) request, ask on the day you get the denial what the deadline is to seek review by a reviewing board under § 20-9(g)(4), and put the request in writing.