If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast. Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws.
No statutory deferred prosecution or conditional discharge for DWI. G.S. 15A-1341 sets forth a statutory scheme pursuant to which certain defendants may be placed on probation as part of a deferred prosecution agreement or as part of an agreement following a determination of the defendant’s guilt. This first type of agreement and probation commonly is referred to as “statutory deferred prosecution” so as to distinguish it from other ad hoc deferred prosecution arrangements that may be entered into by a district attorney and a criminal defendant. The second is commonly called a “conditional discharge.” A defendant’s successful completion of probation leads to dismissal of the charges under either arrangement. See G.S. 15A-1342(i) (granting a defendant immunity from prosecution upon the expiration of probation imposed after deferral of prosecution). Charges are dismissed by the prosecutor if the defendant is placed on probation before entering a plea. See G.S. 15A-1341(a1), (a2). Charges are dismissed by the court and the defendant discharged if the defendant pleads or is found guilty before being placed on probation. See G.S. 15A-1341(a4), (a5), (a6).
Two groups of defendants are eligible for statutory deferred prosecution and conditional discharge. Jamie described the first type of defendant in this post. In general, these are defendants charged with a low-level felony or a misdemeanor offense who have not previously been convicted of a felony or a misdemeanor involving moral turpitude. The second type of defendant is one who is eligible for a drug treatment court program established pursuant to the North Carolina Drug Treatment Court Act.
Some defendants charged with DWI under G.S. 20-138.1 qualify under either category. DWI is a misdemeanor offense and the legislature has identified reducing alcohol dependence crimes such as DWI as a central purpose of drug treatment courts.
However, S.L. 2015-150 amends G.S. 15A-1341 to provide that defendants charged with or convicted of misdemeanor DWI are not eligible for statutory deferred prosecution or conditional discharge. The amendments are effective for orders placing a defendant on probation on or after December 1, 2015.
Re-sentencing not always required on remand. The legislature enacted G.S. 20-38.7 in 2006 to prevent a defendant from escaping enhanced punishment in a DWI case by appealing a prior DWI conviction to superior court and then withdrawing the appeal after he was sentenced for a subsequent DWI. When that occurred, a defendant benefited from two low-level DWI sentences, neither of which was enhanced by the prior conviction. Current G.S. 20-38.7 provides that district court sentences for DWI are vacated upon the giving of notice of appeal and requires a district court to hold a new sentencing hearing and consider new convictions when a DWI appeal to superior court is withdrawn or a case is remanded from superior to district court. But because DWIs aren’t always appealed to superior court solely for the purpose of dodging sentencing enhancements for prior convictions, G.S. 20-38.7 requires resentencing in some circumstances where the parties agree there are no new sentencing factors for the court to consider. S.L. 2015-150 amends G.S. 20-38.7(c) to provide that a district court sentence is not vacated and no new sentencing hearing is required if the appeal is properly withdrawn and the case remanded and the prosecutor has certified to the clerk in writing that she has no new sentencing factors to offer the court. These amendments are effective for appeals filed on or after December 1, 2015.
Stay tuned as the session wraps up for posts on other significant DWI and motor vehicle legislation.
MADD wants a DWI conviction (however old or minor) to be a scarlet letter one must wear for the rest of his/her life. Then again, if someone can go 15+ years with a DWI conviction being their only conviction, chances are they don’t “need” an expunction.