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.
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.
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.