Double Punishment but No Double Jeopardy

Donna Defendant’s license was revoked on May 1, 2007 upon her conviction of driving after consuming in violation of G.S. 20-13.2. On January 15, 2008, Donna Defendant was charged with impaired driving and driving with a revoked license. Donna Defendant is convicted of both offenses in district court. At the sentencing hearing, the district court judge finds one grossly aggravating factor:  driving at the time of the offense while her license was revoked for an impaired driving revocation. Based on that finding, the judge imposes a Level 2 punishment for the impaired driving conviction, sentencing Donna to 12 months imprisonment.  The judge also imposes a sentence of 120 days for the conviction of driving while license revoked to run at the expiration of the sentence for impaired driving.  Donna objects, arguing that punishing her for driving while license revoked violates double jeopardy.  Donna argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny establish that aggravating factors under GS 20-179, which increase the maximum punishment that may be imposed upon a defendant convicted of impaired driving, are, in fact, elements of the offense.  The assistant district attorney argues that while aggravating factors may be treated as the functional equivalent of elements for Sixth Amendment purposes, they are not elements for purposes of applying the Blockburger test to determine whether the double jeopardy clause bars punishment for both offenses. Who has the better of these arguments?

No North Carolina court has weighed in on this question, but writing for two other justices in the plurality opinion in Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), Justice Scalia observed there was “no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an ‘offence’ for purposes of the Fifth Amendment’s Double Jeopardy Clause.” The “context” for this statement in Sattazahn was the court’s analysis of whether the Double Jeopardy Clause applies to capital sentencing proceedings so as to preclude imposition of the death penalty in a subsequent trial if a jury in an earlier proceeding concludes that the state has failed to prove an aggravating circumstance.

In an unpublished opinion, the Court of Appeals of Kentucky cited this language as support for its conclusion that driving under the influence (DUI) was a lesser included offense of driving while a license is suspended for DUI.  See Thomas v. Commonwealth, 2004 WL 405951 (Ky. App. March 5, 2004) (unpublished). The court reached this conclusion because, under Kentucky law, commission of the offense of driving while a person’s license is suspended for DUI is punishable as a felony if the person had a prior conviction for the suspended license offense and was driving under the influence at the time of the instant offense. The court explained:  “[B]ecause the fact of driving under the influence influenced the maximum penalty to which [the defendant] was exposed from one year in jail to five years in the penitentiary, Apprendi requires that the fact be deemed an element of the alleged offense and not merely a sentencing factor. Thus viewed, the alleged suspended license felony . . . includes the lesser offense of DUI.” Thus, the court concluded that, under Blockburger, the offenses are the same.

Other courts have reached a different conclusion. See State v. Stephenson, 195 S.W.3d 574 (Tenn. 2006) (holding that the majority opinion in Sattazahn cannot be read to hold directly or by implication that aggravating circumstances must be included as actual elements of the offense of capital murder for purposes of the statutory elements test under Blockburger and finding the defendant’s convictions for first degree murder and conspiracy to commit first degree murder constitutionally permissible.); People v. Hogan, 114 P.3d 42 (Colo. App. 2005) (holding that second degree kidnapping when enhanced by a factor of aggravated robbery does not require that a separate conviction for the aggravated robbery be merged into the kidnapping conviction and declining to construe plurality opinion in Sattazahn as a constitutional mandate that any fact increasing the maximum penalty becomes an essential element of the offense for both double jeopardy and merger purposes).

Given that sentencing factors under GS 20-179 increase the maximum punishment for the offense of impaired driving, the better argument seems, at least to me, that such factors must be considered elements for purposes of securing a defendant’s federal constitutional rights under the Fifth and Sixth Amendments – including the right to be free from double jeopardy. Nevertheless, I think the sentence imposed upon Donna Defendant is lawful. Here’s why:

Even if aggravating factors are elements of the offense of impaired driving for purposes of Fifth Amendment as well as Sixth Amendment analyses, a defendant still may be punished in a single prosecution for impaired driving and lesser included offenses. The Double Jeopardy Clause does not prohibit multiple punishments for offenses when one is include within the other under the Blockburger test if both are tried at the same time and if the legislature specifically authorizes cumulative punishment for both offenses. See Missouri v. Hunter, 459 U.S. 359 (1983). Thus, even if the elements of two crimes are the same, a defendant may in a single trial be convicted of and punished for both crimes if it is found that the legislature intended for multiple punishments to apply. See State v. Gardner, 315 N.C. 444 (1986). And, while the court in Missouri v. Hunter referred to specific authorization for cumulative punishment, the North Carolina Supreme Court has found such authorization in the absence of an explicit statutory rule by examining legislative and judicial history and by inferring that inaction from the legislature constitutes “acquiesce[ence]” as to the conviction and punishment of both crimes in a single trial. Gardner, 315 N.C. at 462.

Before Apprendi, sentencing factors set forth in GS 20-179 were not considered elements of the substantive offense. Thus, in a pre-Apprendi world, driving while license revoked was not considered a lesser offense of impaired driving aggravated by driving while license revoked, and cumulative punishment frequently was imposed for such offenses. When the General Assembly amended GS 20-179 in 2006 to require that aggravating factors be submitted to the fact-finder and proved beyond a reasonable doubt, it did not formally reclassify these sentencing factors as “elements.” It seems likely that our appellate courts would construe the legislature’s failure to recast sentencing factors as elements, combined with the longstanding view that driving while license revoked is not a lesser included offense of impaired driving, to evince legislative intent to allow for cumulative punishment in a single trial.