What is Underage (Provisional) DWI in North Carolina?

Charlotte DWI Lawyer Brad Smith answers the question: “Is there more than one way for police to charge a person with DWI?”


North Carolina’s Zero Tolerance Law makes it illegal for people under the age of 21 to drive with any amount of alcohol or drugs in their system. People who are caught driving after consuming alcohol are charged with an underage or provisional DWI (driving while impaired).

smart-drive-Charlotte-Monroe-Mooresville-DWI-Lawyer-268x300Provisional DWI is also known as Driving After Consumption While Under 21. While it is not as serious as a DWI charge in North Carolina, it still involves penalties such as:

  • Fines
  • Revocation of the driver’s license
  • Imprisonment


What is Provisional DWI?

Under the North Carolina G.S. 20-138.3, it is illegal for drivers under the age of 21 to operate a motor vehicle on a public highway or roadway with any amount of alcohol or drugs in their system.

However, the law does not apply to drivers who have traces of a controlled substance in their system as long as the drug was taken in “therapeutically appropriate amounts” and was “lawfully obtained” by the driver.


Elements of a Provisional DWI Charge in North Carolina

A prosecutor must prove beyond a reasonable doubt the following elements to charge someone with provisional DWI. A prosecutor must prove that the defendant was:

  • Under the age of 21 at the time of the arrest;
  • Driving or in physical control of a motor vehicle;
  • On any public vehicular area, roadway, or highway;
  • Drinking while driving or had any amount of alcohol or drugs in their system; and
  • Not “impaired” by therapeutically appropriate amounts of a lawfully obtained drug.


Can an Underage Driver Refuse to Alcohol Testing?

Typically, a police officer will either administer a breath test (Breathalyzer) or order a blood test to measure your blood alcohol concentration (BAC). If a test registers a BAC of .01% or greater, an underage driver will face a provisional DWI charge.

In North Carolina, an underage driver may be charged with provisional DWI even if they refuse to submit to testing. You may be charged with provisional DWI based on the police officer’s observation of symptoms of alcohol or drug impairment.

In fact, refusal to submit to alcohol testing when you were arrested for a suspected provisional DWI will result in harsh penalties. The Division of Motor Vehicles (DMV) will be notified of your refusal to submit to testing, which may result in the suspension of your driver’s license for a year.


Penalties for Provisional DWI in North Carolina

Underage motorists who get convicted of provisional DWI face the following penalties in North Carolina:

  • Suspension of a driver’s license for up to 30 days;
  • Payment of a $100 fee for the return of the license;
  • Up to 60 days in jail (provisional DWI is charged as a Class 2 Misdemeanor);
  • A fine of up to $1,000; and
  • Probation including community service and/or substance abuse treatment.


Why You Need a DWI Defense Lawyer in North Carolina

If you or your child was arrested for a suspected provisional DWI in Charlotte, Mooresville, Monroe, or other parts of North Carolina, it is advised to contact an experienced DWI defense lawyer to help you:

  • Get the charged dropped or dismissed
  • Negotiate a plea deal
  • Request continued judgment

A provisional DWI charge can affect various aspects of your child’s life, including their ability to receive education and ability to get a job. Speak with our Charlotte DWI defense lawyers at Arnold & Smith, PLLC, to discuss a possible defense strategy in your unique case. Call our lawyers at Arnold & Smith, PLLC, at (704) 370-2828 to evaluate your options or fill out our contact form. Now taking cases throughout North Carolina with offices in Uptown Charlotte, Mooresville and Monroe.







The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.






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