After a DUI conviction, the court can order the defendant to complete an alcohol rehabilitation course. Can the judge make the program's tuition fee part of the court costs, have the clerk of court collect it along with the other costs, and then forward it to the rehab provider?
Plain-English summary
The Chief District Judge of the Seventh Judicial District asked a focused administrative question. Under G.S. 20-179(a)(3), a sentencing court in a DUI case could direct the defendant to enroll in an alcohol rehabilitation program. The program had a tuition cost. The administrative question: can the judge fold that tuition cost into the court costs imposed at sentencing, have the clerk of court collect it along with the standard court costs, and then have the clerk distribute the rehab portion to the program operator?
The AG said no.
The opinion turns on two structural rules.
Rule one: court costs are statutory. Article 28 of Chapter 7A of the General Statutes is the uniform-cost statute. § 7A-304 and the following sections define the costs that may be imposed in criminal cases in the trial divisions of North Carolina's courts. The list is comprehensive: certain general court fees, witness fees, expert witness fees, fees for specific services. A judge does not have inherent authority to add costs outside this list. Costs are creatures of statute. A third-party rehabilitation course fee, payable to a private or public program operator outside the court system, is not on the list. Without statutory authorization, the cost cannot be imposed.
Rule two: a fine is not the answer either. A possible workaround would have been to impose the rehab fee as a "fine" rather than a "cost." That route is also blocked, by the North Carolina Constitution rather than by statute. Article IX, Section 7 directs that the clear proceeds of fines and penalties collected for violation of the penal laws of the State be paid to the school fund of the county where the violation was committed. A fine that the clerk diverts to a private rehab provider is not paid to the school fund. The constitutional school-fund directive means a fine routed to a rehab provider is constitutionally impermissible.
The operational consequence: rehab tuition has to be collected by the program operator from the defendant directly, outside the court's fee-collection system. The judge could order completion of the program as a condition of sentencing (under § 20-179(a)(3) itself), but the financial mechanics had to live outside the clerk's cost-collection workflow.
Currency note
This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
North Carolina's DUI sentencing framework was substantially restructured by the Safe Roads Act of 1983 and its successors. The current DWI sentencing statute is no longer G.S. 20-179(a)(3) in the form quoted here, and the role of alcohol assessment and treatment programs in current DWI sentencing is now governed by detailed statutory and DMV regulatory provisions. Court-cost statutes have also been substantially expanded, and several recent General Assembly sessions have added costs for specific programs (community service, treatment fees, certain assessment fees) that did not exist in 1979. The school-fund constitutional directive in Article IX, Section 7 remains in force and continues to govern the disposition of fines, but the case law on what counts as a "fine" versus a "fee" or "cost" has evolved. Anyone implementing current DWI sentencing should consult the current statutes and court-cost lists rather than relying on this 1979 framing.
Historical context: what the AG concluded
The opinion is short but the structural reasoning is worth unpacking because the costs-versus-fines-versus-fees distinction recurs throughout North Carolina sentencing practice.
Court costs are not discretionary. A common misconception in busy district court practice is that a judge has discretion to assess any reasonable cost associated with a sentence. The AG opinion implicitly rejects that view. Article 28 of Chapter 7A sets the cost menu by statute. The court does not have authority to add costs outside the menu. The point is partly textual (the statute lists the costs that can be imposed, which by negative implication excludes others) and partly structural (uniform costs across the trial divisions require that judges not be free to add ad hoc cost items).
The rehab fee is a third-party charge, not a system charge. A useful way to think about why the rehab fee does not fit: court costs in Article 28 are charges associated with the operation of the court system itself (filing fees, service fees, jury fees, witness fees, fees for specific judicial services). The rehab tuition is a charge for a service provided by a third party (the rehab program) outside the court system. The clerk's cost-collection function is built around the court-system charges and does not naturally extend to collecting and remitting third-party fees.
The fine alternative is constitutionally blocked. The opinion does not stop with the costs analysis. It anticipates the natural workaround: if the rehab fee cannot be a cost, can it be a fine? The AG says no, because Article IX, Section 7 of the North Carolina Constitution directs all fines for state penal-law violations to the county school fund. A fine that goes to a private rehab program rather than to the school fund is constitutionally impermissible.
The school-fund directive is one of North Carolina's most distinctive constitutional provisions. It dates back to the Reconstruction-era constitutions and has been a consistent feature of state penal-revenue policy. The directive shapes the structural distinction between a "fine" (which has to go to the schools) and a "cost" (which can be retained for court-system operations or otherwise directed by statute). Any new revenue stream tied to a criminal sentence has to fit one of those categories or stand outside the sentencing process entirely.
The remaining path. What the opinion does not say but is implicit: the judge can still order completion of the rehab program as a condition of probation or as part of the sentence under § 20-179(a)(3). What the judge cannot do is route the program's tuition through the court's cost-collection system. The rehab provider has to bill the defendant directly. If the defendant does not pay (and therefore cannot complete the program), the consequences are within the original sentencing or probation framework (probation revocation, contempt, additional sentencing), not within the cost-collection workflow.
For a Chief District Judge in 1979, the operational takeaways were several. First, do not order the clerk to collect the rehab tuition. The clerk has no statutory authority to receive or remit it. Second, do not characterize the tuition as a fine. The constitutional school-fund directive would be violated. Third, the order to attend a rehab program is enforceable in its own right under § 20-179(a)(3); the defendant pays the program directly. Fourth, if the defendant cannot afford the program, the proper response is within the sentencing or probation framework (modification of conditions, alternative dispositions), not the cost-collection mechanism.
Common questions
Why can't a judge just add the rehab fee to court costs?
Because court costs are statutory. Article 28 of Chapter 7A (§ 7A-304 et seq.) defines the costs the clerk can collect in the trial divisions. A judge does not have authority to add costs outside the statutory list. The legislature would have had to add the rehab fee to the list (and provide for clerk collection and distribution to the provider) for the costs route to work.
What was the constitutional problem with calling it a fine?
Article IX, Section 7 of the North Carolina Constitution provides that the clear proceeds of fines and penalties collected for violation of the penal laws of the State must be paid to the school fund of the county where the violation was committed. A "fine" by definition goes to the schools. If the clerk collects what the order calls a "fine" but then sends it to a rehab program instead of to the school fund, the constitutional directive is violated.
Could the rehab program just bill the defendant directly?
Yes. The AG opinion does not address this directly but it is the natural workaround. The court can order the defendant to attend and complete the program under § 20-179(a)(3); the program then bills the defendant for its tuition. The court's cost-collection system stays out of it.
What if the defendant cannot afford the program?
The opinion does not address indigency. As a practical matter, an indigent defendant who cannot pay rehab tuition presents a sentencing-condition problem (the condition cannot be complied with). The court has the discretion to modify the condition, fashion an alternative disposition, or, in some circumstances, address the access issue through other available resources. None of that involves the clerk's cost-collection function.
Was the answer different for an alcohol or drug program operated by a public entity?
The opinion does not distinguish public from private program operators. The cost-collection problem is the same in either case: Article 28 does not list third-party program fees as collectible costs, regardless of who runs the program. A program operated by, say, a community college might have its own statutory tuition framework, but that is separate from the criminal sentencing cost question.
What did "Article IX, Sec. 7" actually require?
It requires the clear proceeds of all penalties, forfeitures, and fines collected in the several counties for any breach of the penal laws of the State to be paid to the county school fund. The provision dates to North Carolina's post-Reconstruction constitutional framework and has been consistently enforced. It is the structural reason fines cannot be redirected to other purposes.
Did the AG cite specific cases?
The opinion is statute-and-constitution based and does not cite any case law. The reasoning is textual: the costs statute lists what can be charged; the constitution governs where fines go; the rehab fee fits neither category.
Can the same opinion be applied to other treatment programs (drug, gambling, mental health) where a defendant is ordered to participate?
The structural logic generalizes. Any third-party program fee that the court might want to fold into court costs faces the same Article 28 problem; any attempt to characterize it as a fine faces the same school-fund constitutional problem. Whether subsequent statutes have specifically authorized collection of particular treatment fees is a separate question; the 1979 baseline as articulated here is that absent specific statutory authorization, the answer is no.
Background and statutory framework
The opinion is grounded in two short but consequential frameworks.
Article 28 of Chapter 7A (uniform cost in the trial divisions). § 7A-304 and the following sections define the costs that may be imposed in criminal cases in the General Court of Justice. The article reflects the post-1965 court-reform policy of having a uniform statewide cost schedule rather than each county or each judge improvising its own. The Article lists what may be assessed and silently excludes what is not listed. The implementing assumption is that judges follow the statutory list rather than supplementing it with case-specific add-ons.
N.C. Const. art. IX, § 7 (school fund). "[A]ll moneys, stocks, bonds, and other property belonging to a county school fund, and the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools." (Modern text; the 1979 formulation was substantively the same.) The directive is mandatory ("shall belong to and remain") and exclusive ("used exclusively for ... free public schools"). It is the structural reason fines cannot be diverted to other purposes.
N.C.G.S. § 20-179(a)(3) (1979 DUI sentencing). Authorized the sentencing court in a DUI case to direct enrollment in an alcohol rehabilitation program. The substantive sentencing authority was clear; the financial mechanics of program tuition were what the opinion addresses. The current DWI sentencing framework, restructured by the Safe Roads Act of 1983 and successors, no longer uses this exact subsection.
The interaction of these three provisions is the opinion's analytical center. § 20-179(a)(3) supplies the sentencing tool (ordering rehab attendance). Article 28 of Chapter 7A and Article IX, § 7 together box out the financial mechanism (rehab tuition cannot ride along through the clerk's cost-collection workflow because it is not a listed cost and cannot be a fine because the constitution sends fines to the schools).
Citations
- G.S. 20-179(a)(3) (1979 DUI sentencing authority to order alcohol rehabilitation program enrollment)
- Article 28 of Chapter 7A of the General Statutes (uniform cost in trial divisions)
- G.S. 7A-304 et seq. (uniform-cost statutory list)
- N.C. Const. art. IX, § 7 (clear proceeds of fines and penalties for violation of penal laws go to county school fund)
Source
- Landing page: https://ncdoj.gov/opinions/motor-vehicles-d-u-i/
Original opinion text
May 7, 1979
Subject: Motor Vehicles - D.U.I. G.S. 20-179(a)(3)
Requested By: Honorable George M. Britt, Chief District Judge, Seventh Judicial District
Question: May a fee charged for an alcohol rehabilitation course offered pursuant to G.S. 20-179(a)(3) be imposed by the Court as a part of the cost and collected by the Clerk and distributed to the provider of the rehabilitation course?
Conclusion: No.
Article 28 of Chapter 7A of the General Statutes provides for uniform cost in the trial divisions (7A-304 et seq.) and the fees required to attend an alcohol or drug rehabilitation program do not fall within the preview of the statute. Neither could such fees be accessed as fines without running afoul Article IX, Sec. 7 of the North Carolina Constitution.
Rufus L. Edmisten
Attorney General
William W. Melvin
Deputy Attorney General