Mar 17, 2012 | DUI & DWI, Uncategorized
North Carolina has consistently prided itself on having some of the toughest DWI laws in the country. With recent passage of the new “Laura’s law,” it seems clear that our state intends to maintain that status. Over the next several weeks and months, the attorneys at Reeves, Aiken & Hightower, LLP, will be posting articles detailing how this law will impact our clients. As it is new legislation, we will also be posting other competing firms’ views as all criminal defense attorneys share a common goal of seeking justice and fairness. If you have been charged with a NC DWI, we encourage you to carefully evaluate different lawyers and their credentials. We would welcome an opportunity to sit down with you and personally review your case. Compare our firms’ lawyers to any other. Then call us for a private consultation at 704-499-9000. For more information about us, please visit our website at www.rjrlaw.com.
Here is a great review posted prior to enactment by the Greensboro firm McKinney Justice Perry & Coalter –
In late June of this year, the North Carolina General Assembly passed two bills designed to increase punishments in Driving While Impaired cases. These modifications of the sentencing statutes will go into effect on December 1st, 2011, and apply to all offenses occurring after that date. One bill creates a new sentencing level for chronic offenders. The other will automatically result in level 1 sentencing status for those with minors in the vehicle when the offense occurs. I will analyze each change in turn.
Level A1 Sentencing
Under the previous regime, there were five levels of sentencing for DWI offenders, depending on a balance of mitigating, aggravating, and grossly aggravating factors. Those offenders without grossly aggravating factors will continue to receive Level 3, 4, or 5 sentences, and the new law changes nothing. But those who are sentenced with grossly aggravating factors risk falling into a sixth level, aggravated Level One (A1). Prior to the change, an offender with a single grossly aggravating factor would be sentenced as a Level 2. Those with more than one grossly aggravating factors were Level Ones. With the creation of the A1 tier, offenders with more than two grossly aggravating factors will receive much increased criminal sanctions.
The changes will be embodied in new NCGS § 20-179(f3). Offenders shall be sentenced to a minimum of not less than 12 months, and a maximum of not more than 36 months. This term cannot be suspended, unless the defendant serves special probation (a split sentence) of at least 120 days. If probation is allowed, the sentencing judge must impose a requirement of abstinence from alcohol for at least 120 days, to be enforced by a continuous alcohol monitoring system. The maximum fine will be $10,000.
The most interesting aspect of the new law is its effect on Post-Release Supervision of Level A1 offenders. While Level 1 defendants are eligible for parole under NCGS § 15A-1371, the new law does not allow parole for A1 defendants. Instead, the new law allows release from DOC “on the date equivalent to the defendant’s maximum imposed term of imprisonment less four months,” to be followed by post-release supervision as governed by Article 84Aof Chapter 15A. As Jamie Markham from the UNC School of Government points out in his blog, the effect of this modification is unclear. The simplest interpretation is that a defendant must serve the maximum sentence less four months, but this does not take into account good time deductions. Additionally, the statutes conflict on whether an offender sentenced to a one year maximum will be required to serve the entire year (as suggested by NCGS 20-179(p)(2)), or whether the offender will be allowed release at the maximum (12 months) less 120 days (per new NCGS 20-179(f3)). As Markham notes, it appears that it will be up to DOC to enact the statute, and up to Defendants to challenge the application through the courts.
Regardless of the DOC’s application of the new law, the new A1 sentencing level will have a major effect on the sentencing of chronic DWI offenders. Probation is still on the table, but the mandatory 30 day split has been quadrupled. For those with multiple DWIs in the past seven years, a new conviction will result in significant time in custody.
Minor Passengers
The second major change in the new statute is directed to NCGS § 20-179(c). An offender driving with anyone less than 18 years old in the car will be an automatic Level 1 offender, even if the only grossly aggravating factor is under 20-179(c)(4). The age of a qualifying minor will be raised from children under 16, to under 18. Additionally, the law adds provisions so that driving with a person “with the mental development of a child under the age of 18 years,” or “with a physical disability preventing unaided exit from the vehicle,” qualifies a defendant to Level 1 status. The application of these provisions is impossible to predict.
The most obvious effect of these provisions would appear to be on teenage drivers themselves, the very individuals the law purports to protect. A seventeen year old driving with a peer who is charged with DWI will now be subject to the mandatory, Level 1 split sentence of 30 days. Previously, such defendants could qualify as Level 5 offenders.
Another issue is how the gross aggravators will be tabulated when the new provisions apply. For example, if an offender drives with a minor in the car and with a prior conviction within seven years, are there two or three aggravators? My reading is that such an offender would still be a Level 1, and will not be subject to the provisions of the draconian new A1 sentencing law.
As with any law, the impact of the new DWI provisions depends on enforcement. Judges and administrators may enforce the law according to the most punitive interpretation, or they may allow for discretion and leniency within the provisions. But certainly the punishments for Driving While Impaired have been given new teeth. Whether it saves lives remains to be seen.
Mar 17, 2012 | DUI & DWI, Uncategorized
The attorneys of Reeves, Aiken & Hightower, LLP, believe in providing information to new clients seeking to learn what they are facing after being charged with DWI. As you will find out, the penalities for a conviction in NC are harsh, even for first time offenders. In fact, NC has some of the strictest DWI laws in the nation. In addition to the stigma of being a convicted “drunk driver,” there can be significant consequences if convicted, including court costs, fines, SR-22 insurance, and possibly even jail time. We encourage you to review as much information as possible and then consult an experienced NC DWI attorney as early as possible. We would welcome an opportunity to help you during this critical time in your life. Call us today for a private consultation about your particular case at 704-499-9000. For even more information about our lawyers and their credentials, visit our firm website at www.rjrlaw.com.
STATE OF NORTH CAROLINA v. BILLY JOE CRUZ
NO. COA04-1217
Filed: 18 October 2005
1. Motor Vehicles–driving while impaired–motion to dismiss–corpus delicti rule– confession–corroborating evidence
The trial court did not err by denying defendant’s motion to dismiss the charge of driving while impaired, because evaluating the evidence under either the traditional or trustworthiness approach to the corpus delicti rule reveals that: (1) the State offered corroborating evidence of the essential facts of defendant’s confession through the testimony of various witnesses; and (2) several officers and witnesses testified to defendant’s drinking and impairment.
2. Motor Vehicles–driving while license revoked–motion to dismiss
The trial court erred by denying defendant’s motion to dismiss the charge of driving while license revoked, because although the evidence supporting defendant’s driving was sufficient, there was insufficient evidence that defendant knew his license was revoked when there was no evidence that an official notice was actually mailed to defendant’s address as required by N.C.G.S. § 20-48.
3. Sentencing–aggravating factor–failure to submit to jury_Blakely error
The trial court committed Blakely error in a driving while impaired case by sentencing defendant as a Level II offender on the basis of its finding of the grossly aggravating factor that defendant drove impaired with a child under the age of sixteen in the car, and the case is remanded for resentencing, because the aggravating factor was not submitted to a jury to be determined beyond a reasonable doubt.
Appeal by defendant from judgment entered 12 February 2004 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 18 May 2005.
Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.William D. Spence, for defendant-appellant.ELMORE, Judge.Billy Joe Cruz (defendant) was indicted for involuntary manslaughter, driving while impaired, driving while license revoked, and aiding and abetting a person under twenty-one to possess alcohol. Following the State’s evidence, the trial court dismissed the charge of involuntary manslaughter and the jury found defendant guilty of driving while impaired and driving while license revoked. Defendant appeals his convictions for these offenses on the basis that the trial court erred in denying his motion to dismiss.
Defendant’s charges arose from the investigation of his nephew’s death that occurred on 31 December 2002. Lee Cruz, defendant’s underage nephew, had been drinking beer most of the day at defendant’s house with other family members. During the early evening hours Lee got a phone call from his girlfriend that prompted him to leave defendant’s house. Lee drove away from defendant’s house and ended up having a fatal car accident not far from his own home. During the investigation of the accident scene, defendant arrived with another person, and police officers noticed defendant creating a disturbance near where other onlookers had gathered. Several of these officers testified at trial that defendant was belligerent and smelled of alcohol.Defendant was interviewed on 2 January 2003 by an investigator with the Pitt County ABC Board of Inquiry, Calvin Craft (Investigator Craft). On 14 January 2003 defendant was also interviewed by North Carolina Highway Patrol officer David Newbie (Officer Newbie), a collision reconstructionist. Based upon seven interviews with defendant between the incident and 26 March 2003, Investigator Craft and Officer Newbie testified to written and oralstatements that defendant made. These confessions, (See footnote 1) are what the State relies on in proving that defendant drove a car, both while impaired and while his license was revoked.[1]
Defendant accurately points out that to survive a motion to dismiss, the State must provide some evidence in addition to defendant’s statements or confession. See State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880 (1986). This is known as the corpus delicti rule, and in North Carolina there are two methods of proving the additional evidence requirement. Id. at 532, 342 S.E.2d at 880 (discussing both methods of proof). In State v. Parker, our Supreme Court “expanded” the corpus delicti rule in North Carolina after extensive evaluation of the rule’s multiple variations. 315 N.C. 222, 337 S.E.2d 487 (1985). The more traditional application of the rule is “that there be corroborative evidence, independent of the defendant’s confession, which tends to prove the commission of the crime charged.” Id. at 229, 337 S.E.2d at 491. Another, more modern method has been called the “’trustworthiness’ version of corroboration and is generally followed by the federal courts and an increasing number of states.’” Id. at 230, 337 S.E.2d at 492. This method was adopted by our Supreme Court in Parker. Id. at 236, 337 S.E.2d at 495. Parker and Trexler offer an understanding of each method of corroboration.
In Trexler, the Court explained that the traditional approach to the corpus delicti rule was still applicable in “cases in which there is some evidence aliunde the confession which, when considered with the confession, will tend to support a finding that the crime charged occurred.” Trexler, 316 N.C. at 532, 342 S.E.2d at 880. The rule does not require that the evidence aliunde the confession prove any element of the crime. The corpus delicti rule only requires evidence aliunde the confession which, when considered with the confession, supports the confession and permits a reasonable inference that the crime occurred. . . . The independent evidence must touch or be concerned with the corpus delicti. . . . The expanded rule enunciated in Parker applies in cases in which such independent proof is lacking but where there is substantial independent evidence tending to furnish strong corroboration of essential facts contained in defendant’s confession so as to establish trustworthiness of the confession. Id. at 532, 342 S.E.2d at 880-81 (internal citations omitted). This rule does not require the State to come forward with evidence, absent the defendant’s confession, that supports each element of the crime charged. Rather, “[a]pplying the more traditional definition of corpus delicti, the requirement for corroborative evidence would be met if that evidence tended to establish the essential harm, and it would not be fatal to the State’s case if some elements of the crime were proved solely by the defendant’s confession.” Parker, 315 N.C. at 232, 337 S.E.2d at 493.
In Parker, the Court explained the modified approach, or the trustworthiness rule, as follows:
We adopt a rule in non-capital cases that when the State relies upon the defendant’s confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime. We wish to emphasize, however, that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant’s confession. Corroboration of insignificant facts or those unrelated to the commission of the crime will not suffice. We emphasize this point because although we have relaxed our corroboration rule somewhat, we remain advertent to the reason for its existence, that is, to protect against convictions for crimes that have not in fact occurred. Id. at 236, 337 S.E.2d at 495. Evaluating the record before us, under either the traditional or trustworthiness approach to the corpus delicti rule, the State offered corroborating evidence that when considered with defendant’s statements is sufficient to survive defendant’s motion to dismiss.
Defendant’s admissions or confessions regarding driving were numerous. Sergeant Kenneth Pitts, of the North Carolina Highway Patrol, first spoke with defendant at the scene of the accident. Sergeant Pitts testified that defendant told him that he followed Lee after Lee had a phone conversation with his girlfriend. Sergeant Pitts also testified that, in his opinion, defendant was appreciably impaired during their conversation, which occurred within several hours of Lee’s accident.
Investigator Craft testified that he first spoke with defendant on 2 January 2003. Defendant told him that he and Lee were first at a local restaurant where they had alcohol, then everyone went back to defendant’s house where they all consumed an additional two cases of beer. Investigator Craft further testified that defendant told him he and Lee got in a brief fight on the lawn about the beer money and Lee left. Defendant went inside to get his keys, and his girlfriend “went with him” after Lee. Investigator Craft continued, stating:
That the defendant traveled toward Lee Cruz, the deceased, house and didn’t see his vehicle home. He turned down a farm path and came back home; that his father came to the defendant’s house. His father stated that he saw a rescue squad go by the residence that he was at, and he had a feeling that Lee was in an accident. So, they went toward Lee’s house to see, and that’s when they located the accident. Investigator Craft testified that defendant told him he would issue a written statement as to what happened, and Investigator Craft received that statement the next day. After being asked by the State to read the statement into evidence, Investigator Craft testified:
This print is kind of hard to read. It says, “Lee came here after work, and asked me if I wanted to go to Mazatlan and drink and eat, and I said ‘Okay.’ Lee had a girlfriend that worked at Mazatlan. I paid for my bill, and Lee paid for his. Lee had two beers and a shot, and I had the same thing. We got somebeer, about two cases. We finished them and had a little argument about some beer money. We hang each other like” _ I can’t really see it. “We hang each like the” _ then he said, “We were arguing, started crying so I let him go, and I hit the window with my fist.” It’s got, “Lee to his car, and I ran after him. I came in and asked my girlfriend for the keys. She said, no, because I was too drunk, and I followed minutes later. She said, ‘I’ll go with you,’ so we left, went by Lee’s house. He won’t there, then we come back home and my dad picked me up and said he was leaving Jesus’ home” _ that’s Lee’s dad. “My dad was leaving Lee’s dad’s home. He saw an ambulance go by, so he decided to come by my home. When he got here, he said, ‘Lee just’” _ “He said he’d just saw an ambulance and decided to come over. I said Lee” _ It looks like, “Lee after drank. Then my dad said, ‘Let’s go to Lee’s home,’ and then we saw what had happened.” It’s signed, “Billy Joe Cruz.”
Investigator Craft spoke with defendant again on 9 January 2003, and the testimony is consistent with defendant’s previous statements. Investigator Craft also testified that he spoke with defendant on 26 March 2003 and, after waiving his Miranda rights, defendant issued another written statement. This statement was also read into the record. He stated, after he was advised of his Miranda rights, that his girlfriend and child were both with him while he drove his vehicle while impaired in an attempt to locate Jesus Lee Cruz; that he went to Mazatlan resteraunt because Lee wanted to drink there; that the large Hispanic female served the first beers, and the smaller one serve them the other beer, this being Ms. Portella, the smaller one of the two waitresses. He said they went to Food Lion where Juan used Lee’s debit card to pay for the beer, four twelve packs. They went back to Joe’s house on Green Street in Farmville where the two consumed three twelve packs of Corona beers; that they got in an argument over going to get more beer and who was going. Mr. Cruz stated that he was notgoing for the beer because he had too much to drink already. I advised if he knew that Lee was going to drive, and the defendant stated, “Yes.” They both threw $10 on the ground for someone to go get more beer and got in the argument; that the defendant broke the window to the front door in anger and told Lee to chill out and it was stupid to fight. Lee left fussing about his girlfriend, and the defendant went in the house to get his keys to follow Lee; that he, himself, his girlfriend and 14-month-old baby went to see if Lee was okay; that they never saw Lee’s vehicle when he went to look for Lee.
Officer Newbie testified that on 14 January 2003 he spoke with defendant and defendant relayed the following:
After this altercation [with Lee], Mr. Cruz stated he stepped inside and Lee went to his car and took off. Mr. Cruz stated that _ stated that Lee’s car was parked in front of his house on Green Street facing north. He last saw Lee heading north on Green Street. The defendant stated he went back inside and told his girlfriend to give him the keys. His girlfriend refused to give him the keys because he was drunk. After a few moments, his girlfriend got the baby, and they left in the car heading north on Green Street. The defendant stated when they left that _ excuse me. The defendant stated that when Mr. Cruz, the deceased, left _ his quote was, “When Lee left here, he was drunk; he was staggering. I know Lee. I followed Lee before home on more than three or four occasions at two or three o’clock in the morning. I get myself in trouble. I follow that man home because he drank. He won’t stay the night. He wants to go home to his house.” Two or three minutes after Lee left, Mr. Cruz, the defendant, left driving through Farmville at 55 to 60 and stated, “I was going passed the speed limit.” The defendant stated the speed limit was 35. He went to Lee’s house. The defendant went to Lee’s house. He went passed Lee’s house . . . . His girlfriend and the baby were in the back seat, and Mr. Cruz, the defendant, admitted he was drunk. He stated that he came through the area of the collision. . . . Mr. Cruz stated that Lee had already wrecked whenhe went through. Mr. Cruz, the defendant, stated that when he gets to Lee’s house, he doesn’t see his car, so he proceeds passed the trailer and makes a left turn onto a field path and drives over to US 264 Alternate.
Officer Newbie’s testimony as to what statements defendant made are substantially similar to the testimony of Investigator Craft and Sergeant Pitts.
Thus, the essential facts of defendant’s confession are that: he and Lee drank beer at a restaurant earlier in the day; the two obtained more beers and drank approximately two cases at defendant’s house; Lee had talked with his girlfriend, was upset and got into a fight with defendant before leaving; defendant, while impaired, got his keys and drove after Lee with his wife and child in the car; after passing by the accident scene close to Lee’s house, defendant drove down a dirt farm road and eventually ended up at home.
The State put on evidence tending to support defendant’s recitation of the events in his confession and thus lending a substantial amount of trustworthiness to his statement. First, the State called one of defendant’s nephews, who testified that defendant and Lee went to the Mazatlan and drank, then purchased more beer and drank at defendant’s home. Defendant’s nephew testified that defendant and Lee got into an argument, but that he left defendant’s house to go to the store. When he came back, approximately thirty minutes later, defendant and Lee were gone, as were both of their cars. Defendant returned to the house later on in the evening. Second, the State called a witness who wastraveling on the road in the opposite direction of Lee just before Lee crashed. She stated that she saw Lee’s car travel past her at a high rate of speed followed shortly thereafter by a dark colored car, also traveling very fast. After being shown a picture of defendant’s car, a black Nissan, she confirmed that it was a similar car to one she saw following Lee’s. Third, the State called a resident who lived near the accident site, who testified that he was in his garage and heard a speeding car go by. Then, within a few moments, he heard another car speeding towards him. He got up to look out the window and saw the car slow down, then speed up, then turn down a farm dirt road. The resident testified that the dirt road was a private road that led to 264 Alternate. Fourth, another witness testified that he was walking his dogs near the road where the accident occurred. He heard two cars coming towards the location of the accident at a high rate of speed. He said he then heard the crash, followed by another car slowing down and then speeding off. And fifth, the State called Lee’s girlfriend, who testified that she called Lee twice on the day of the accident and had planned to come pick him up from defendant’s house.
We determine that the State sufficiently corroborated the essential facts of defendant’s confession through the testimony of these other witnesses. Several officers and witnesses testified to defendant’s drinking and impairment. A car similar to the one owned and operated by defendant was seen traveling down the road near the accident and turning down a side street, just as defendantconfessed to doing. The State also corroborated defendant’s account of Lee receiving a phone call from his girlfriend. Absent defendant’s confession, the circumstantial evidence of defendant’s driving would likely not be enough to support a conviction, however with his confession it is. See Trexler, 316 N.C. at 533-34, 342 S.E.2d at 881-82 (corroboration of defendant’s admission that he drove while impaired, in conjunction with the admission itself, is enough to survive a motion to dismiss). We cannot sustain defendant’s assignment of error on this point.
[2] Next, defendant contends the trial court erred in denying his motion to dismiss the driving while license revoked charge. We agree. Defendant argues the State presented insufficient evidence that he drove a car and that he did so with knowledge his license was revoked. As stated above, we find the evidence supporting defendant’s driving to be sufficient; however, we hold there was insufficient evidence presented that defendant knew his license was revoked.
“To convict a defendant under N.C. Gen. Stat. § 20-28(a) of driving while his license is revoked the State must prove beyond a reasonable doubt (1) the defendant’s operation of a motor vehicle (2) on a public highway (3) while his operator’s license is revoked.” State v. Richardson, 96 N.C. App. 270, 271, 385 S.E.2d 194, 195 (1989) (citing State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)). The State must also prove “the defendant had ‘actual or constructive knowledge of the . . . revocation in order for there to be a conviction under this statute.’” Id. ThisCourt has previously held that “[t]he State satisfies its burden of proof of a G.S. 20-28 violation when, ‘nothing else appearing, it has offered evidence of compliance with the notice requirements of G.S. 20-48 because of the presumption that he received notice and had such knowledge.’” State v. Curtis, 73 N.C. App. 248, 251, 326 S.E.2d 90, 92 (1985) (quoting State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526 (1976)).
Section 20-48 of our General Statutes states that:
Whenever the Division is authorized or required to give any notice under this Chapter or other law regulating the operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the Division. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Division or affidavit of any person over 18 years of age, naming the person to whom such notice was given and specifying the time, place, and manner of the giving thereof.
N.C. Gen. Stat. § 20-48(a) (2003) (emphasis added). Accordingly, if notice of a revocation is sent via the mail, as was done in this case, there is a rebuttable presumption that defendant has received knowledge of the revocation four days after a certificate or affidavit states that a copy of an official notice has been mailed to defendant’s address. See id.; Chester, 30 N.C. App. at 227-28, 226 S.E.2d at 526-27. When mailing notice, evidence of compliancewith the statute requires the State to show an official notice explaining the date revocation will begin and a certificate or affidavit of a person stating the “time, place, and manner of the giving thereof.” See, e.g., State v. Herald, 10 N.C. App. 263, 264, 178 S.E.2d 120, 121-22 (1970) (certificate of mailing complied with statutory “proof of notice” requirement); see also State v. Curtis, 73 N.C. App. 248, 251-52, 326 S.E.2d 90, 92-93 (1985) (defendant’s stipulation of a mailing date was sufficient to show the notice was mailed to defendant).
Here, the State had a police officer testify that defendant’s license was revoked as of 29 December 2002, two days before the incident. The State also introduced an official notice from the Department of Motor Vehicles addressed to defendant, stating the revocation would begin on 29 December 2002. The notice is dated 30 October 2002; however, at trial, there was no testimony, certificate, or affidavit introduced that proves the 30 October 2002 notice was ever mailed to defendant. Without any evidence that an official notice was actually mailed to defendant’s address, the State falls short of offering even a prima facie case of knowledge, and a dismissal is appropriate. See State v. Richardson, 96 N.C. App. 270, 271-72, 385 S.E.2d 194, 194-95 (1989) (dismissal appropriate where the only evidence of defendant’s knowledge of revocation was a police officer’s testimony).
[3] Defendant also argues that the trial court erred in finding a grossly aggravating factor: that he drove impaired with a child under the age of sixteen in the car. Defendant argues thisfinding by the trial court, and not the jury, is in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) . In State v. Allen, 359 N.C. 425, 438-39, 615 S.E.2d 256, 265 (2005) , our Supreme Court applied Blakely and held that N.C. Gen. Stat. § 15A-1340.16 was unconstitutional to the extent that it required the trial court to find aggravating factors by a preponderance of the evidence, rather than presenting them to the jury for a determination beyond a reasonable doubt. The remedy applied in Allen for this “structural error” was remand for resentencing. Id. at 449, 615 S.E.2d at 269. In State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005), our Supreme Court determined that “the rationale in Allen applies to all cases in which (1) a defendant is constitutionally entitled to a jury trial, and (2) a trial court has found one or more aggravating factors and increased a defendant’s sentence beyond the presumptive range without submitting the aggravating factors to a jury.” Id. at 606, 614 S.E.2d at 264. Speight involved a defendant convicted of driving while impaired and sentenced as a Level II offender under N.C. Gen. Stat. § 20-179 (2003), without a jury finding the grossly aggravating factor that escalated his level of punishment. Id. at 604, 614 S.E.2d at 263. In accord, here we hold that the trial court’s sentence of defendant as a Level II offender on the basis of its finding of a grossly aggravating factor was also structural error that requires resentencing. See id. at 606, 614 S.E.2d at 264-65. In sum, the trustworthiness of defendant’s confessions was adequately corroborated and his conviction for driving while impaired was without error. Defendant’s conviction for driving while license revoked is reversed because the State failed to offer sufficient evidence of compliance with N.C. Gen. Stat. § 20-48. Further, defendant is entitled to a new sentencing hearing on the driving while impaired conviction because the grossly aggravating factor was not submitted to a jury to be determined beyond a reasonable doubt.
No error in part, reversed in part, remanded for resentencing.
Judges McGEE and CALABRIA concur.
Footnote: 1
“[R]egardless of whether defendant’s statements constitute an actual confession or only amount to an admission, our long established rule of corpus delicti requires that there be corroborative evidence, independent of the statements, before defendant may be found guilty of the crime.” State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880 (1986).
Mar 11, 2012 | DUI & DWI, Uncategorized
North Carolina has consistently prided itself on having some of the toughest DWI laws in the country. With recent passage of the new “Laura’s law,” it seems clear that our state intends to maintain that status. Over the next several weeks and months, the attorneys at Reeves, Aiken & Hightower, LLP, will be posting articles detailing how this law will impact our clients. As it is new legislation, we will also be posting other competing firms’ views as all criminal defense attorneys share a common goal of seeking justice and fairness. If you have been charged with a NC DWI, we encourage you to carefully evaluate different lawyers and their credentials. We would welcome an opportunity to sit down with you and personally review your case. Compare our firms’ lawyers to any other. Then call us for a private consultation at 704-499-9000. For more information about us, please visit our website at www.rjrlaw.com.
Here is the new DWI statute “Laura’s Law”:
§ 20‑179. Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and aggravating and mitigating factors; punishments.
(a) Sentencing Hearing Required. – After a conviction under G.S. 20‑138.1, G.S. 20‑138.2, a second or subsequent conviction under G.S. 20‑138.2A, or a second or subsequent conviction under G.S. 20‑138.2B, or when any of those offenses are remanded back to district court after an appeal to superior court, the judge shall hold a sentencing hearing to determine whether there are aggravating or mitigating factors that affect the sentence to be imposed.
(1) The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
(2) Before the hearing the prosecutor shall make all feasible efforts to secure the defendant’s full record of traffic convictions, and shall present to the judge that record for consideration in the hearing. Upon request of the defendant, the prosecutor shall furnish the defendant or his attorney a copy of the defendant’s record of traffic convictions at a reasonable time prior to the introduction of the record into evidence. In addition, the prosecutor shall present all other appropriate grossly aggravating and aggravating factors of which he is aware, and the defendant or his attorney may present all appropriate mitigating factors. In every instance in which a valid chemical analysis is made of the defendant, the prosecutor shall present evidence of the resulting alcohol concentration.
(a1) Jury Trial in Superior Court; Jury Procedure if Trial Bifurcated. –
(1) Notice. – If the defendant appeals to superior court, and the State intends to use one or more aggravating factors under subsections (c) or (d) of this section, the State must provide the defendant with notice of its intent. The notice shall be provided no later than 10 days prior to trial and shall contain a plain and concise factual statement indicating the factor or factors it intends to use under the authority of subsections (c) and (d) of this section. The notice must list all the aggravating factors that the State seeks to establish.
(2) Aggravating factors. – The defendant may admit to the existence of an aggravating factor, and the factor so admitted shall be treated as though it were found by a jury pursuant to the procedures in this section. If the defendant does not so admit, only a jury may determine if an aggravating factor is present. The jury impaneled for the trial may, in the same trial, also determine if one or more aggravating factors is present, unless the court determines that the interests of justice require that a separate sentencing proceeding be used to make that determination. If the court determines that a separate proceeding is required, the proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
(3) Convening the jury. – If prior to the time that the trial jury begins its deliberations on the issue of whether one or more aggravating factors exist, any juror dies, becomes incapacitated or disqualified, or is discharged for any reason, an alternate juror shall become a part of the jury and serve in all respects as those selected on the regular trial panel. An alternate juror shall become a part of the jury in the order in which the juror was selected. If the trial jury is unable to reconvene for a hearing on the issue of whether one or more aggravating factors exist after having determined the guilt of the accused, the trial judge shall impanel a new jury to determine the issue.
(4) Jury selection. – A jury selected to determine whether one or more aggravating factors exist shall be selected in the same manner as juries are selected for the trial of criminal cases.
(a2) Jury Trial on Aggravating Factors in Superior Court. –
(1) Defendant admits aggravating factor only. – If the defendant admits that an aggravating factor exists, but pleads not guilty to the underlying charge, a jury shall be impaneled to dispose of the charge only. In that case, evidence that relates solely to the establishment of an aggravating factor shall not be admitted in the trial.
(2) Defendant pleads guilty to the charge only. – If the defendant pleads guilty to the charge, but contests the existence of one or more aggravating factors, a jury shall be impaneled to determine if the aggravating factor or factors exist.
(b) Repealed by Session Laws 1983, c. 435, s. 29.
(c) Determining Existence of Grossly Aggravating Factors. – At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection, or whether a conviction exists under subdivision (d)(5) of this section, shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Aggravated Level One punishment under subsection (f3) of this section if it is determined that three or more grossly aggravating factors apply. The judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply. If the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies. The grossly aggravating factors are:
(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20‑38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20‑28, and the revocation was an impaired driving revocation under G.S. 20‑28.2(a).
(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
(4) Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.
In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f).
(c1) Written Findings. – The court shall make findings of the aggravating and mitigating factors present in the offense. If the jury finds factors in aggravation, the court shall ensure that those findings are entered in the court’s determination of sentencing factors form or any comparable document used to record the findings of sentencing factors. Findings shall be in writing.
(d) Aggravating Factors to Be Weighed. – The judge, or the jury in superior court, shall determine before sentencing under subsection (f) whether any of the aggravating factors listed below apply to the defendant. The judge shall weigh the seriousness of each aggravating factor in the light of the particular circumstances of the case. The factors are:
(1) Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.
(2) Especially reckless or dangerous driving.
(3) Negligent driving that led to a reportable accident.
(4) Driving by the defendant while his driver’s license was revoked.
(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20‑16 or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6) Conviction under G.S. 20‑141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under G.S. 20‑141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of G.S. 20‑217.
(9) Any other factor that aggravates the seriousness of the offense.
Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.
(e) Mitigating Factors to Be Weighed. – The judge shall also determine before sentencing under subsection (f) whether any of the mitigating factors listed below apply to the defendant. The judge shall weigh the degree of mitigation of each factor in light of the particular circumstances of the case. The factors are:
(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
(4) A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20‑16 or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
(5) Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
(6) The defendant’s voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.
(7) Any other factor that mitigates the seriousness of the offense.
Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.
(f) Weighing the Aggravating and Mitigating Factors. – If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:
(1) The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).
(2) There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).
(3) The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).
It is not a mitigating factor that the driver of the vehicle was suffering from alcoholism, drug addiction, diminished capacity, or mental disease or defect. Evidence of these matters may be received in the sentencing hearing, however, for use by the judge in formulating terms and conditions of sentence after determining which punishment level shall be imposed.
(f1) Aider and Abettor Punishment. – Notwithstanding any other provisions of this section, a person convicted of impaired driving under G.S. 20‑138.1 under the common law concept of aiding and abetting is subject to Level Five punishment. The judge need not make any findings of grossly aggravating, aggravating, or mitigating factors in such cases.
(f2) Limit on Consolidation of Judgments. – Except as provided in subsection (f1), in each charge of impaired driving for which there is a conviction the judge shall determine if the sentencing factors described in subsections (c), (d) and (e) are applicable unless the impaired driving charge is consolidated with a charge carrying a greater punishment. Two or more impaired driving charges may not be consolidated for judgment.
(f3) Aggravated Level One Punishment. – A defendant subject to Aggravated Level One punishment may be fined up to ten thousand dollars ($10,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. Notwithstanding G.S. 15A‑1371, a defendant sentenced to a term of imprisonment pursuant to this subsection shall not be eligible for parole. However, the defendant shall be released from the Division of Adult Correction of the Department of Public Safety on the date equivalent to the defendant’s maximum imposed term of imprisonment less four months and shall be supervised by the Section of Prisons of the Division of Adult Correction under and subject to the provisions of Article 84A of Chapter 15A of the General Statutes and shall also be required to abstain from alcohol consumption for the four‑month period of supervision as verified by a continuous alcohol monitoring system. For purposes of revocation, violation of the requirement to abstain from alcohol or comply with the use of a continuous alcohol monitoring system shall be deemed a controlling condition under G.S. 15A‑1368.4.
The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. If the defendant is placed on probation, the judge shall impose as requirements that the defendant (i) abstain from alcohol consumption for a minimum of 120 days to a maximum of the term of probation, as verified by a continuous alcohol monitoring system pursuant to subsections (h1) and (h3) of this section, and (ii) obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(g) Level One Punishment. – A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(h) Level Two Punishment. – A defendant subject to Level Two punishment may be fined up to two thousand dollars ($2,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(h1) The judge may impose, as a condition of probation for defendants subject to Level One or Level Two punishments, that the defendant abstain from alcohol consumption for a minimum of 30 days, to a maximum of the term of probation, as verified by a continuous alcohol monitoring system. The defendant’s abstinence from alcohol shall be verified by a continuous alcohol monitoring system of a type approved by the Division of Adult Correction of the Department of Public Safety.
(h2) Repealed by Session Laws 2011‑191, s.1, effective December 1, 2011, and applicable to offenses committed on or after that date.
(h3) Any fees or costs paid pursuant to subsection (h1) of this section shall be paid to the clerk of court for the county in which the judgment was entered or the deferred prosecution agreement was filed. Fees or costs collected under this subsection shall be transmitted to the entity providing the continuous alcohol monitoring system.
(i) Level Three Punishment. – A defendant subject to Level Three punishment may be fined up to one thousand dollars ($1,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 72 hours and a maximum term of not more than six months. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of at least 72 hours as a condition of special probation; or
(2) Perform community service for a term of at least 72 hours; or
(3) Repealed by Session Laws 2006‑253, s. 23, effective December 1, 2006, and applicable to offenses committed on or after that date.
(4) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(j) Level Four Punishment. – A defendant subject to Level Four punishment may be fined up to five hundred dollars ($500.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 48 hours and a maximum term of not more than 120 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of 48 hours as a condition of special probation; or
(2) Perform community service for a term of 48 hours; or
(3) Repealed by Session Laws 2006‑253, s. 23, effective December 1, 2006, and applicable to offenses committed on or after that date.
(4) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(k) Level Five Punishment. – A defendant subject to Level Five punishment may be fined up to two hundred dollars ($200.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 24 hours and a maximum term of not more than 60 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of 24 hours as a condition of special probation; or
(2) Perform community service for a term of 24 hours; or
(3) Repealed by Session Laws 2006‑253, s. 23, effective December 1, 2006, and applicable to offenses committed on or after that date.
(4) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a driver’s license and as a condition of probation. The judge may impose any other lawful condition of probation.
(k1) Credit for Inpatient Treatment. – Pursuant to G.S. 15A‑1351(a), the judge may order that a term of imprisonment imposed as a condition of special probation under any level of punishment be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient. The defendant shall bear the expense of any treatment unless the trial judge orders that the costs be absorbed by the State. The judge may impose restrictions on the defendant’s ability to leave the premises of the treatment facility and require that the defendant follow the rules of the treatment facility. The judge may credit against the active sentence imposed on a defendant the time the defendant was an inpatient at the treatment facility, provided such treatment occurred after the commission of the offense for which the defendant is being sentenced. This section shall not be construed to limit the authority of the judge in sentencing under any other provisions of law.
(l) Repealed by Session Laws 1989, c. 691.
(m) Repealed by Session Laws 1995, c. 496, s. 2.
(n) Time Limits for Performance of Community Service. – If the judgment requires the defendant to perform a specified number of hours of community service, a minimum of 24 hours must be ordered.
(o) Evidentiary Standards; Proof of Prior Convictions. – In the sentencing hearing, the State shall prove any grossly aggravating or aggravating factor beyond a reasonable doubt, and the defendant shall prove any mitigating factor by the greater weight of the evidence. Evidence adduced by either party at trial may be utilized in the sentencing hearing. Except as modified by this section, the procedure in G.S. 15A‑1334(b) governs. The judge may accept any evidence as to the presence or absence of previous convictions that he finds reliable but he shall give prima facie effect to convictions recorded by the Division or any other agency of the State of North Carolina. A copy of such conviction records transmitted by the police information network in general accordance with the procedure authorized by G.S. 20‑26(b) is admissible in evidence without further authentication. If the judge decides to impose an active sentence of imprisonment that would not have been imposed but for a prior conviction of an offense, the judge shall afford the defendant an opportunity to introduce evidence that the prior conviction had been obtained in a case in which he was indigent, had no counsel, and had not waived his right to counsel. If the defendant proves by the preponderance of the evidence all three above facts concerning the prior case, the conviction may not be used as a grossly aggravating or aggravating factor.
(p) Limit on Amelioration of Punishment. – For active terms of imprisonment imposed under this section:
(1) The judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.
(2) The defendant shall serve the mandatory minimum period of imprisonment and good or gain time credit may not be used to reduce that mandatory minimum period.
(3) The defendant may not be released on parole unless he is otherwise eligible, has served the mandatory minimum period of imprisonment, and has obtained a substance abuse assessment and completed any recommended treatment or training program or is paroled into a residential treatment program.
With respect to the minimum or specific term of imprisonment imposed as a condition of special probation under this section, the judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.
(q) Repealed by Session Laws 1991, c. 726, s. 20.
(r) Supervised Probation Terminated. – Unless a judge in his discretion determines that supervised probation is necessary, and includes in the record that he has received evidence and finds as a fact that supervised probation is necessary, and states in his judgment that supervised probation is necessary, a defendant convicted of an offense of impaired driving shall be placed on unsupervised probation if he meets three conditions. These conditions are that he has not been convicted of an offense of impaired driving within the seven years preceding the date of this offense for which he is sentenced, that the defendant is sentenced under subsections (i), (j), and (k) of this section, and has obtained any necessary substance abuse assessment and completed any recommended treatment or training program.
When a judge determines in accordance with the above procedures that a defendant should be placed on supervised probation, the judge shall authorize the probation officer to modify the defendant’s probation by placing the defendant on unsupervised probation upon the completion by the defendant of the following conditions of his suspended sentence:
(1) Community service; or
(2) Repealed by Session Laws 1995 c. 496, s. 2.
(3) Payment of any fines, court costs, and fees; or
(4) Any combination of these conditions.
(s) Method of Serving Sentence. – The judge in his discretion may order a term of imprisonment to be served on weekends, even if the sentence cannot be served in consecutive sequence. However, if the defendant is ordered to a term of 48 hours or more, or has 48 hours or more remaining on a term of imprisonment, the defendant shall be required to serve 48 continuous hours of imprisonment to be given credit for time served.
(1) Credit for any jail time shall only be given hour for hour for time actually served. The jail shall maintain a log showing number of hours served.
(2) The defendant shall be refused entrance and shall be reported back to court if the defendant appears at the jail and has remaining in his body any alcohol as shown by an alcohol screening device or controlled substance previously consumed, unless lawfully obtained and taken in therapeutically appropriate amounts.
(3) If a defendant has been reported back to court under subdivision (2) of this subsection, the court shall hold a hearing. The defendant shall be ordered to serve his jail time immediately and shall not be eligible to serve jail time on weekends if the court determines that, at the time of his entrance to the jail,
a. The defendant had previously consumed alcohol in his body as shown by an alcohol screening device, or
b. The defendant had a previously consumed controlled substance in his body.
It shall be a defense to an immediate service of sentence of jail time and ineligibility for weekend service of jail time if the court determines that alcohol or controlled substance was lawfully obtained and was taken in therapeutically appropriate amounts.
