Here is an another interesting article and analysis by Ms. Denning regarding the latest major change to NC DWI laws. The question raised is whether the new law which imposes the most serious punishment for a first time DWI defendant for having anyone below the age of 18 or a disabled person in the vehicle counts as a singular factor for each person or single factor overall. As this issue is not clear in the statute, it will ultimately be left to the Courts to resolve. The most frightening scenario for our typical DWI client at Reeves, Aiken & Hightower LLP is the husband and wife who are on a “date night.” After having a nice dinner and a couple glasses of wine. On their way back home, they stop to pick up their children from the baby sitter and are stopped for a minor traffic infraction. Suddenly, without an accident and no prior criminal record, the driver is looking at mandatory jail time. These laws, while well intentioned, are bound to sweep up the innocent with the truly guilty.
The Charlotte DWI lawyers of Reeves, Aiken & Hightower LLP understand the fear you are facing if you have been charged with a DWI. Our trial attorneys are seasoned litigators who will fight tirelessly to defend your rights. For more information about our firm, please visit our website at www.rjrlaw.com. After you compare our credentials to any other law firm, call us at 704-499-9000 to speak with an attorney directly for a private consultation.
Another Look at the DWI Super-Aggravator in G.S. 20-179(c)(4)
May 9th, 2012
By Shea Denning
Last summer I wrote this post about amendments to the fourth grossly aggravating factor applicable to sentencing for impaired driving, namely the factor in G.S. 20-179(c)(4) that elevates punishment for driving while impaired with a child in the vehicle. Amendments effective for offenses committed on or after December 1, 2011 render this factor applicable if any of the following persons were in the vehicle at the time of the offense: (1) a child under the age of 18; (2) a person with the mental development of a child under 18; or (3) a person with a physical disability that prevents the person from getting out of the vehicle without assistance. S.L. 2011-329. When I summarized the amendments last summer, I wrote: “[I]f more than one of these types of persons is in the car, it appears that only one grossly aggravating factor applies.” I want to revisit that issue in this post.
G.S. 20-179(c)(4) does not specify whether more than one grossly aggravating factor exists if more than one qualifying minor or disabled person is in the vehicle at the time of the offense. It did not so specify before it was amended, though then it applied only when one category of persons was present in the vehicle: a child under the age of 16. In light of G.S. 20-179(c)(1)’s specification that each qualifying prior conviction counted as a separate grossly aggravating factor, the prevailing interpretation before the statute was amended was that, regardless of the number of children present in the vehicle, only one factor applied. See Ben Loeb and James Drennan, Motor Vehicle Law and the Law of Impaired Driving in North Carolina 85 (2000); see also Jeff Welty, DWI for the Whole Family. That’s the analysis I applied in the August 2011 post. It finds some support in another provision of S.L. 2011-329, which amended G.S. 20-179(c) to require Level One punishment “if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies” and to permit Level Two punishment “[i]f the judge does not find that the aggravating factor at subdivision (4) of this subsection applies.” These references to G.S. 20-179(c)(4) arguably reflect the legislature’s view that the factor, while capable of proof in multiple ways, remains singular in its application.
Nevertheless, the contrary view—namely that division of this factor into subparts evinces the legislature’s intent to permit the finding of more than one grossly aggravating factor under G.S. 20-179(c)(4)—is bolstered by case law interpreting other, similarly worded aggravating factors. The court of appeals in State v. Mack, 81 N.C. App. 578 (1986), for example, construed the aggravating factor of “especially reckless or dangerous driving” in G.S. 20-179(d)(2) to permit a finding of two separate aggravating factors, one based on especially reckless driving and the other based on especially dangerous driving. The Mack court explained that “there would need to be at least one item of evidence not used to prove either an element of the offense or any other factor in aggravation to support each additional aggravating factor.” Id. at 585. Similarly, the state supreme court has upheld the division of the aggravating factor set forth in G.S. 15A-1340.16(d)(1), which applies if “[t]he defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants,” holding that the provision may support the finding of two aggravating factors (one for inducement and one for position of leadership) if separate evidence supports each.See State v. Erlewine, 328 N.C. 626, 638-39 (1991). For that reason, both the impaired driving determination of sentencing factors form and the felony judgment form provide check boxes for the finding of one or both factors under each provision.
If the reasoning in Mack and Erlewine was applied to G.S. 20-179(c)(4), as amended, it would allow for the determination of more than one grossly aggravating factor based on the presence of more than one person in the car, each of whom satisfied a separate category. So, for example, a finding of one grossly aggravating factor under G.S. 20-179(c)(4) would be appropriate for a defendant who committed a covered offense with more than one child under the age of 18 in the vehicle because the children occupy the same category. If, however, a person with a qualifying disability or a person with the mental development of a child under the age of 18 years also was present in the vehicle, a separate grossly aggravating factor also would apply.
The DWI sentencing factors form acknowledges this possible interpretation, providing a separate check box for each category of qualifying individual under 20-179(c)(4). The form does not, of course, resolve the legal issue of whether each category gives rise to separate factor.
Given that a finding of one aggravating factor under G.S. 20-179(c)(4) requires Level One punishment, whether multiple aggravating factors can be found under this subsection carries legal significance in the limited number of cases in which there are three or more grossly aggravating factors, thus requiring punishment at Aggravated Level One. If you’ve litigated this issue or have other insights or perspective on the proper construction of this provision, I’d love to have the benefit of your thoughts.
There is always “bar talk” about how many drinks (alcohol, wine, beer) a person can have before they are considered “legally drunk”? While many profess to know the answer, there actually is no true scientific basis to calculate same with any certainty. An individual’s blood alcohol level is affected by a number of factors including age, weight, gender, time of day, physical condition, food consumed prior to taking a drink, other drugs or medication taken, and tolerance level. One thing we do know is that eating while drinking slows down the absorption of alcohol into your bloodstream, thereby resulting in a lower BAC level. Always remember that alcohol affects everyone differently. If you rarely drink, you could be severely impaired by a single beer. The only real conclusion reached is that impairment begins with the first drink, and that by the time you “feel drunk,” you’re probably already past the legal limit.
The Department of Justice estimates that over 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics in 2005 (the latest data available). The arrest rate works out to one arrest for every 139 licensed drivers in the United States. Although these are the latest arrest figures, it is doubtful these numbers have improved. Sadly, DUI and DWI arrests continue to rise every year, and legislatures around the country continue to pass even stricter and harsher laws.
The criminal defense attorneys of Reeves, Aiken & Hightower LLP focus their practice on DUI and DWI cases in both SC and NC. Our trial lawyers have over 70 years combined experience in the courtroom. We fight hard for our clients by taking their cases to trial in order to win an acquittal or get the best negotiated plea. Prosecutors know which law firms are willing to go to court and if they know what they are doing when they get there. Our team of attorneys have unique backgrounds and qualifications. For more information about our lawyers and firm, please visit www.rjrlaw.com. Compare our firm to any other. Then call us for a private consultation at 877-374-5999. We welcome an opportunity to help you and your family.
The attorneys of Reeves, Aiken & Hightower, LLP, believe in providing as much information as possible 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, please visit our firm website at www.rjrlaw.com.
Here is the seminal case relating to your rights regarding checkpoints in North Carolina. In this case, the defendant clearly saw the checkpoint ahead and took aggressive steps to avoid the police. Accordingly, the NC Supreme Court ruled his arrest was separate and apart from the checkpoint as the officer witnessed bad driving and pursued him independently. Much closer cases involve situations where a driver sees “blue lights” ahead and turns around to avoid what is believed to be an accident. Can the police come chase you down under this scenario? The answer now is “yes.” However, there are some interesting caveats found in other NC cases which we will be posting in subsequent blogs. For now, read the case below for a glimpse of how judges evaulate the various issues presented with police stops and checkpoints.
STATE v. FOREMAN
STATE of North Carolina v. Karen Seagle FOREMAN.
— May 05, 2000
Michael F. Easley, Attorney General, by Jonathan P. Babb, Assistant Attorney General, for the State-appellant and -appellee.
Ward, Potter & Brown, P.A., by William F. Ward, III, New Bern, for defendant-appellant and -appellee.
On 16 November 1996, defendant was arrested for driving while impaired (DWI), possession of drug paraphernalia and possession of cocaine. Defendant was subsequently indicted for the DWI charge. On 16 September 1997, defendant was found guilty of DWI in District Court, Craven County, and gave notice of appeal to the superior court. On 12 February 1997, defendant filed a motion to dismiss the charge because there was no probable cause sufficient to justify the stop of her vehicle or, in the alternative, to suppress any evidence obtained from the stop of defendant’s vehicle. The trial court denied defendant’s motion to dismiss or to suppress, and defendant was tried before a jury at the 23 February 1998 Criminal Session of Superior Court, Craven County. The jury found defendant guilty of DWI. On 25 February 1998, the trial court, inter alia, sentenced defendant to a suspended sentence of sixty days in jail with unsupervised probation for two years and revoked her license for one year. Defendant appealed to the North Carolina Court of Appeals.
On appeal, the Court of Appeals found no error. State v. Foreman, 133 N.C.App. 292, 515 S.E.2d 488 (1999). In support of its decision, the Court of Appeals concluded that it was not constitutionally permissible for an officer to stop a vehicle which had made a legal turn away from a posted DWI checkpoint. Although we disapprove of the Court of Appeals’ conclusion that a legal turn away from a DWI checkpoint, upon entering the checkpoint’s perimeters, cannot justify an investigatory stop, we find no error in defendant’s conviction. Accordingly, we affirm the decision of the Court of Appeals as modified herein.
The State’s evidence tended to show that during the early morning hours of 16 November 1996, officers from the New Bern Police Department were conducting a “DWI Checkpoint” on Neuse Boulevard in New Bern, North Carolina. Notice signs stating that there was a “DWI Checkpoint Ahead” were posted approximately one-tenth of a mile prior to the stop. Officer Doug Ipock was in a police cruiser parked close to the checkpoint’s perimeter. His assigned task was to pursue any and all vehicles which appeared to attempt to avoid the checkpoint by turning around or away from it and to determine the basis for such avoidance.
At approximately 2:00 a.m., Officer Ipock observed a small red vehicle traveling on Neuse Boulevard towards the checkpoint. Immediately prior to passing the checkpoint’s sign giving notice of the checkpoint, the vehicle made a quick left turn onto Midgette Avenue. Officer Ipock then followed this vehicle and remained approximately thirty to forty yards behind it. Officer Ipock continued to observe the vehicle until it made a second abrupt left turn onto Taylor Street. At this point, Officer Ipock lost sight of the vehicle. After continuing a short distance up and then back down Taylor Street, Officer Ipock ultimately found the vehicle parked in a residential driveway on Taylor Street. The car’s lights and ignition were off, and its doors were closed. Officer Ipock directed his bright lights onto the vehicle and also turned on his “take-down lights,” thereby enabling the officer to see that people were bent or crouched down inside the car. At this point, the officer radioed for backup and remained in his vehicle until backup arrived, approximately two minutes later. The officer observed that the occupants remained bent or crouched down and that they did not change positions in the vehicle.
Once backup arrived, Officer Ipock approached the vehicle and saw that defendant was sitting in the driver’s seat, with the keys still in the ignition. Officer Ipock testified that there were several open containers of alcohol in the vehicle and that the vehicle emitted a “strong odor of alcohol.” Additionally, the officer testified that defendant had a strong to moderate odor of alcohol about her person once she exited the vehicle and that she was unsteady on her feet. The officer’s observations were admitted into evidence.
Defendant contends that the Court of Appeals erroneously upheld her DWI conviction because the evidence derived from Officer Ipock’s observations was inadmissible since his observations were the result of an invalid stop and seizure. Specifically, defendant argues that at the time she made the legal left turn, just prior to entering the DWI checkpoint, Officer Ipock did not have a reasonable or articulable suspicion of criminal activity, and therefore he had no legal basis to stop her. For the reasons discussed herein, we conclude that the Court of Appeals correctly determined that the arresting officer, under the totality of the circumstances, had a reasonable, articulable suspicion that defendant was engaged in criminal activity prior to any seizure.
This Court has recently reaffirmed the long-standing rule that “[w]hen an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.” State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). “ ‘[T]he police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ ” State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979). In the instant case, the officer observed a “quick left turn” away from the checkpoint at the precise point where the driver of the vehicle would have first become aware of its presence. However, Officer Ipock did not stop defendant’s vehicle once it turned away from the checkpoint. In fact, we cannot conclude that Officer Ipock “stopped” defendant’s vehicle at any point. Defendant voluntarily parked in a residential driveway and remained hidden in the car until Officer Ipock approached the vehicle. Therefore, defendant was not “seized” by the police officer until at least that point. Based upon that series of incriminating circumstances, we conclude that the Court of Appeals correctly determined that Officer Ipock observed sufficient activity to raise a “reasonable and articulable suspicion of criminal activity.” Foreman, 133 N.C.App. at 298, 515 S.E.2d at 493.
Although defendant in the case sub judice was not stopped because of her legal turn, or at all by the arresting officer, the Court of Appeals stated:
[A] legal left turn at the intersection immediately preceding a posted DWI checkpoint, without more, does not justify an investigatory stop. We emphasize, however, that it is constitutionally permissible, and undoubtedly prudent, for officers to follow vehicles that legally avoid DWI checkpoints, in order to ascertain whether other factors exist which raise a reasonable and articulable suspicion that an occupant of the vehicle is engaged in criminal activity․ Thus, if [d]efendant was seized solely based on a legal left turn preceding the DWI checkpoint, that seizure was unconstitutional.
Id. at 296, 515 S.E.2d at 492. For the reasons discussed herein, we disagree and clarify this language.
Although a legal turn, by itself, is not sufficient to establish a reasonable, articulable suspicion, a legal turn in conjunction with other circumstances, such as the time, place and manner in which it is made, may constitute a reasonable, articulable suspicion which could justify an investigatory stop. As the United States Supreme Court recently stated in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), “flight-wherever it occurs-is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at —-, 120 S.Ct. at 676, 145 L.Ed.2d at 576.
Further, the United States Supreme Court has stated:
No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion․
Conversely, the weight bearing on the other scale-the measure of the intrusion on motorists stopped briefly at sobriety checkpoints-is slight.
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2486, 110 L.Ed.2d 412, 420-21 (1990). Therefore, the United States Supreme Court held that DWI checkpoints are constitutional if vehicles are stopped according to a neutral, articulable standard (e.g., every vehicle) and if the government interest in conducting the checkpoint outweighs the degree of the intrusion. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412.
Section 20-16.3A of our General Statutes governs the establishment, organization and management of impaired driving checkpoints and sets forth the bases for “stopping vehicles” at any such checkpoint. That section provides:
A law-enforcement agency may make impaired driving checks of drivers of vehicles on highways and public vehicular areas if the agency:
(1) Develops a systematic plan in advance that takes into account the likelihood of detecting impaired drivers, traffic conditions, number of vehicles to be stopped, and the convenience of the motoring public.
(2) Designates in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to submit to alcohol screening tests. The plan may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to submit to an alcohol screening test.
(3) Marks the area in which checks are conducted to advise the public that an authorized impaired driving check is being made.
N.C.G.S. § 20-16.3A (1999).
There is no dispute that the DWI checkpoint in the case sub judice met all the statutory requirements for an impaired driving checkpoint. The perimeters of the checkpoint were marked with signs stating that there was a DWI checkpoint ahead, and the signs were posted approximately one-tenth of a mile prior to the actual stop. The checkpoint was established with the intent to stop every vehicle briefly and to check for impaired drivers traveling on Neuse Boulevard within the vicinity of the checkpoint. It is obvious that a law-enforcement agency cannot “make impaired driving checks of drivers of vehicles on highways” unless such vehicles can be stopped. Certainly, the purpose of any checkpoint and the above statute would be defeated if drivers had the option to “legally avoid,” ignore or circumvent the checkpoint by either electing to drive through without stopping or by turning away upon entering the checkpoint’s perimeters. Further, it is clear that the perimeters of the checkpoint or “the area in which checks are conducted” would include the area within which drivers may become aware of its presence by observation of any sign marking or giving notice of the checkpoint. Therefore, we hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.
Our state’s interest in combating intoxicated drivers outweighs the minimal intrusion that an investigatory stop may impose upon a motorist under these circumstances. We therefore conclude that the Court of Appeals correctly found no error in defendant’s conviction, and we affirm the decision of the Court of Appeals as modified herein.
MODIFIED AND AFFIRMED.
In this case, the Court of Appeals held that the facts available to Officer Ipock before defendant was seized were sufficient to raise a reasonable and articulable suspicion of criminal activity and that the trial court did not err by denying defendant’s motion to suppress. I agree. The majority modifies the Court of Appeals’ opinion in order to “disagree [with] and clarify” the Court of Appeals’ statement that a legal left turn at the intersection immediately preceding a posted DWI checkpoint does not, without more, justify an investigatory stop. I would affirm the decision of the Court of Appeals without modification.
The key in the Court of Appeals’ language is the phrase “without more.” Here, as the Court of Appeals indicated, there was more than the left turn which justified the seizure. When Officer Ipock located the vehicle within seconds after it turned onto Taylor Street, the vehicle’s engine was not running, the lights were off, and the occupants were crouched down in the dark. These additional factors were sufficient to raise a reasonable and articulable suspicion of criminal activity before defendant was seized by Officer Ipock.
The Court of Appeals emphasized that it was not only constitutionally permissible, but prudent, for officers to follow vehicles that avoided the DWI checkpoint in order to ascertain whether other factors raised a reasonable and articulable suspicion of criminal activity. However, there is a difference between stopping a vehicle and simply following it. Reasonable and articulable suspicion is necessary for an investigatory stop, but unnecessary to justify following a vehicle. While mere avoidance of a DWI checkpoint may prompt law enforcement officers to follow a vehicle, it does not, alone, give rise to a reasonable and articulable suspicion of criminal activity.
I would add that if a systematic plan for an impaired driving checkpoint pursuant to N.C.G.S. § 20-16.3A provides for stopping every car that turns off the highway within the perimeters of the checkpoint, then it is unnecessary to justify such a stop on the basis of reasonable and articulable suspicion. In such case, the stop is based on the systematic plan rather than the discretion of the officer or an articulable suspicion of criminal activity. However, as the Court of Appeals stated, avoidance of a posted DWI checkpoint, “without more, does not justify an investigatory stop.”