What is a Baby DWI in North Carolina?

A “baby DWI” is a DWI or DUI charge where the driver is (1) under 21 and (2) under the legal limit BAC of 0.08.  If you’re under 21 years old and are stopped by police in North Carolina on a suspicion of driving under the influence, you are likely to be charged with at least two crimes.

The first charge will be “Driving After Consuming Under the Age of 21” also known as a “Baby DWI” (N.C.G.S. 20-138.3).  The second charge will probably be a regular Driving While Impaired (the adult DWI) (N.C.G.S. 20-138.1) assuming you are over the limit of 0.08.  For more information on how adult DWI’s work click here.

NC Baby DWI Lawyer Information

A baby DWI only applies to people who are under the age of 21.  A baby DWI makes it a criminal act to have any impairment of any level of alcohol if someone under 21 is driving a vehicle. This is North Carolina’s version of a “zero tolerance” policy.

You can be convicted of the Baby DWI if you blew a .01, even though you weren’t appreciably impaired for the purposes of the adult DWI. The Baby DWI is much stricter in terms of proof of alcohol consumption as it permits no alcohol in your system (unless the substance was prescribed by a doctor).  The police simply need to show that you had alcohol in your system.


A Baby DWI is punished as a Class 2 misdemeanor which is much lower than an adult DWI. In addition, while your driver’s license is revoked upon a charge of a baby DWI, you are eligible for limited driving privileges, provided you are not also convicted of the adult DWI.

The Good News

The good news is that if your alcohol consumption was very low (0.03 or lower) you have the possibility of receiving a PJC from the judge provided you have a clean record and follow some recommendations from your DWI lawyer.  A substance abuse assessment is a good idea among others.  Provided this was your first offense you may also be eligible for a limited driving privilege during the time of your revocation.

If you were charged with a baby DUI or driving under the influence of alcohol under the age of 21 you can call The Law Offices of Wiley Nickel at 919-585-1486 for a free consultation.  We handle criminal cases in Wake County, North Carolina from our law office located in Cary. 


The Fine Print Courtesy of the North Carolina State Legislature

§ 20-138.3.  Driving by person less than 21 years old after consuming alcohol or drugs.

(a)        Offense. - It is unlawful for a person less than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has remaining in his body any alcohol or controlled substance previously consumed, but a person less than 21 years old does not violate this section if he drives with a controlled substance in his body which was lawfully obtained and taken in therapeutically appropriate amounts.

(b)        Subject to Implied-Consent Law. - An offense under this section is an alcohol-related offense subject to the implied-consent provisions of G.S. 20-16.2.

(b1)      Odor Insufficient. - The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver's body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.

(b2)      Alcohol Screening Test. - Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violation of subsection (a) of this section, and the results of an alcohol screening test or the driver's refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver's body. No alcohol screening tests are valid under this section unless the device used is one approved by the Department of Health and Human Services, and the screening test is conducted in accordance with the applicable regulations of the Department as to its manner and use.

(c)        Punishment; Effect When Impaired Driving Offense Also Charged. - The offense in this section is a Class 2 misdemeanor. It is not, in any circumstances, a lesser included offense of impaired driving under G.S. 20-138.1, but if a person is convicted under this section and of an offense involving impaired driving arising out of the same transaction, the aggregate punishment imposed by the court may not exceed the maximum applicable to the offense involving impaired driving, and any minimum punishment applicable shall be imposed.


Wiley Nickel

Wiley Nickel lives and works in Cary, North Carolina. In 1998, he graduated from Tulane University with a major in Political Science and a minor in History. After college Wiley went to work for Al Gore and travelled with the Vice President as part of his national advance staff. Following the Gore campaign he earned his law degree from the Pepperdine University School of Law in 2005. While in law school Wiley worked as a law clerk in the Ventura County District Attorney’s Office where he gained valuable criminal trial experience before taking and passing the California bar exam. His first job out of law school was for the Merced County District Attorney’s Office where he worked as a Deputy District Attorney with a focus on prosecuting DWI offenders. Wiley later joined the Law Offices of Joseph Uremovic where he focused on civil litigation and family law. When the opportunity came to join the Obama campaign in 2008 Wiley jumped at the chance. He spent three years travelling with President Obama as a member of his national advance team. In 2011 Wiley left his work for the White House to return to the practice of law. Wiley devotes the majority of his practice to the areas of criminal law, family law, traffic tickets and DMV issues. The Law Offices of Wiley Nickel was started with the goal of providing the best representation possible for all of his clients. Experienced, Compassionate, Aggressive Criminal Defense While defense attorney Wiley Nickel works as the primary attorney for all of his cases, he does have an associate attorney, a team of investigators, forensic consultants, and support staff to call on to help achieve the best possible result in every case. He limits his case load so that he can focus on providing the best possible legal defense to all of his clients. Every case is a top priority and the goal is to have your case dismissed with a focus on being able to expunge your charges at the end of the process. When he is not working, Wiley is an avid family man, distance runner and golfer. He loves North Carolina college sports and is hoping this is the year for Cam Newton and the Carolina Panthers. Wiley is licensed to practice law in North Carolina and California.