§ 15A-534.2. Detention of impaired drivers. - North Carolina Statutes

§ 15A‑534.2.  Detentionof impaired drivers.

(a)        A judicial officialconducting an initial appearance for an offense involving impaired driving, asdefined in G.S. 20‑4.01(24a), must follow the procedure in G.S. 15A‑511except as modified by this section. This section may not be interpreted toimpede a defendant's right to communicate with counsel and friends.

(b)        If at the time ofthe initial appearance the judicial official finds by clear and convincingevidence that the impairment of the defendant's physical or mental facultiespresents a danger, if he is released, of physical injury to himself or othersor damage to property, the judicial official must order that the defendant beheld in custody and inform the defendant that he will be held in custody untilone of the requirements of subsection (c) is met; provided, however, that thejudicial official must at this time determine the appropriate conditions ofpretrial release in accordance with G.S. 15A‑534.

(c)        A defendant subjectto detention under this section has the right to pretrial release under G.S.15A‑534 when the judicial official determines either that:

(1)        The defendant'sphysical and mental faculties are no longer impaired to the extent that hepresents a danger of physical injury to himself or others or of damage toproperty if he is released; or

(2)        A sober, responsibleadult is willing and able to assume responsibility for the defendant until hisphysical and mental faculties are no longer impaired. If the defendant isreleased to the custody of another, the judicial official may impose any othercondition of pretrial release authorized by G.S. 15A‑534, including arequirement that the defendant execute a secured appearance bond.

The defendant may be deniedpretrial release under this section for a period no longer than 24 hours, andafter such detention may be released only upon meeting the conditions ofpretrial release set in accordance with G.S. 15A‑534. If the defendant isdetained for 24 hours, a judicial official must immediately determine theappropriate conditions of pretrial release in accordance with G.S. 15A‑534.

(d)        In making hisdetermination whether a defendant detained under this section remains impaired,the judicial official may request that the defendant submit to periodic teststo determine his alcohol concentration. Instruments acceptable for makingpreliminary breath tests under G.S. 20‑16.3 may be used for this purposeas well as instruments for making evidentiary chemical analyses. Unless thereis evidence that the defendant is still impaired from a combination of alcoholand some other impairing substance or condition, a judicial official mustdetermine that a defendant with an alcohol concentration less than 0.05 is nolonger impaired. The results of any periodic test to determine alcoholconcentration may not be introduced in evidence:

(1)        Against thedefendant by the State in any criminal, civil, or administrative proceedingarising out of an offense involving impaired driving; or

(2)        For any purpose inany proceeding if the test was not performed by a method approved by theCommission for Public Health under G.S. 20‑139.1 and by a person licensedto administer the test by the Department of Health and Human Services.

The fact that a defendant refusedto comply with a judicial official's request that he submit to a chemicalanalysis may not be admitted into evidence in any criminal action,administrative proceeding, or a civil action to review a decision reached by anadministrative agency in which the defendant is a party. (1983, c. 435, s. 4; 1997‑443,s. 11A.118(a); 2007‑182, s. 2.)