There are six sentencing levels for Driving While Impaired (DWI) convictions. A defendant is only exposed to the three most severe levels (A1, 1, and 2) if a judge or jury finds the existence of one or more “grossly aggravating factors” beyond a reasonable doubt. These factors are listed in G.S. 20-179(c). One of them is “[d]riving by the defendant at the time of the offense while the defendant’s driver’s license was revoked pursuant to G.S. 20‑28(a1).” Rather than applying to all revocations, G.S. 20-28(a1) applies when person’s license is revoked for an “impaired driving revocation.” At first glance, it appears any time a person is convicted of DWI, if their license was revoked for an impaired driving revocation, this grossly aggravating factor would apply and elevate their sentencing exposure—but that may not be the case. Read on for more.
Driving while impaired. The elements of DWI are met when a person (1) drives or operates (2) a vehicle (3) on a street, highway, or public vehicular area (PVA) (4) while under the influence of an impairing substance, after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of .08 or more at any relevant time after driving, or with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine (G.S. 20-138.1). The two elements that warrant a closer look for the purposes of today’s post are (2) a vehicle, and (3) on a street, highway, or PVA.
Vehicles are defined by G.S. 20-4.01(49), in part as “[e]very device in, upon, or by which any person or property is or may be transported or drawn upon a highway . . . .” The definition specifically lists bicycles and electric assisted bicycles, and includes mopeds and E-scooters (such as those for rent by Lime and Bird). Notably, this is broader than the term “motor vehicle,” which specifically excludes mopeds and electric assisted bicycles (defined in G.S. 20-4.01(23)). Street, highway, or PVA also covers broad ground. Streets, highways, and their cognates are synonymous, and are defined as the area between property or right-of-way lines used by the public as a matter of right for vehicular traffic. (G.S. 20-4.01(13)). PVAs are defined by G.S. 20-4.01(32), and include most driveways, roads, alleys, or parking lots of public institutions/property or private businesses used by the public for vehicular traffic. They also include beach areas, areas in gated or non-gated subdivisions, or private property designated as a PVA used by the public for vehicular traffic. As a result, PVAs include places like parking lots of businesses, roads within private gated communities, gas stations, fast-food drive-throughs, and car washes.
Driving while license revoked. The elements of driving while license revoked are met when a person (1) drives (2) a motor vehicle (3) on a highway (4) knowing or having been properly sent notice that their driver’s license is revoked. If the revocation is an impaired driving revocation as defined in G.S. 20-28.2(a), the offense is a Class 1 misdemeanor. For most other revocations, the offense is a Class 3 misdemeanor. Two key differences between the elements of DWI and driving while license revoked are that the latter only applies to motor vehicles, rather than the broader element of “vehicles,” and only applies to highways (and streets, and their cognates), rather than also including PVAs.
The open question. In your average DWI conviction, the defendant is convicted of driving a motor vehicle on a street or highway while impaired. If their license was also revoked for an impaired driving revocation, it seems clear and sensible that the grossly aggravating factor for driving while license revoked for an impaired driving revocation should apply. But say the same person drove a moped or a bicycle instead? While they would be subject to the crime of DWI, they would not be subject to the crime of driving while license revoked. This is because they operated a vehicle, rather than a motor vehicle, and a drivers license is not required for a moped or a bicycle. Or say they drove a motor vehicle on a PVA but not a street or highway? Again, they would be subject to the crime of DWI but not to the crime of driving while license revoked. In these cases, would the grossly aggravating factor of “[d]riving by the defendant at the time of the offense while the defendant’s driver’s license was revoked pursuant to G.S. 20‑28(a1)” still apply? The person did drive, and at the time, their license was revoked for an impaired driving revocation. Nothing in the grossly aggravating factor clearly limits its application to motor vehicles rather than vehicles, or to just streets and highways, rather than including PVAs. While we don’t have case law on these precise sets of facts yet, another case suggests the answer is no.
State v. Dewalt. In October of 2008, Mickey James Dewalt was wanted by law enforcement in connection with a warrant against him. Believing that Dewalt would be at a shopping center in Forsyth County, two detectives waited in an unmarked patrol car in the front parking lot, while two sheriff’s deputies waited behind the shopping center. The detectives saw Dewalt drive into the parking lot and notified the deputies, who pulled up to Dewalt’s vehicle with blue lights activated and ordered Dewalt out of the car. Instead, Dewalt drove over a concrete median, across a grassy area, and along the entrance/exit road of the shopping center. After that, the deputies lost sight of Dewalt. The vehicle Dewalt was driving was later found stuck in a ditch across the street from a residential property adjacent to the shopping center. Dewalt was charged with felony fleeing to elude arrest, resisting a public officer, reckless driving to endanger, driving while license revoked, and attaining the status of habitual felon. State v. Dewalt, 209 N.C. App. 187 (2011).
Somewhat like DWI, fleeing to elude is elevated from a misdemeanor to a felony based on the presence of aggravating factors. These factors are found in G.S. 20-141.5(b). One of these factors is “driving when the person’s license is revoked.” (G.S. 20-141.5(b)(5)). The presence of two or more aggravating factors makes fleeing to elude a Class H felony, rather than a Class 1 misdemeanor. In Dewalt, the two aggravating factors alleged were that Dewalt was driving while his license was revoked, and that he was engaged in “reckless driving as proscribed in G.S. 20-140.” (G.S. 20-141.5(b)(3)). Dewalt argued at trial that because the evidence only showed he drove on a PVA, and driving while license revoked as defined by G.S. 20-28 does not apply to PVAs, the aggravating factor of driving while license revoked should not apply. Instead, the trial court instructed the jury that, when used as an aggravating factor for fleeing to elude, driving while license revoked was not limited to driving on a street or highway, and that the jury could convict on the basis of driving on a PVA.
The Court of Appeals agreed with the trial court. In addressing Dewalt’s argument that the aggravating factor of driving while his license was revoked required the same showing as the offense as defined in G.S. 20-28, the Court relied on the canon of statutory construction expressio unius est exclusion alterius—the expression of one thing is the exclusion of another. The Court noted that other aggravating factors in G.S. 20-141.5 reference criminal statutes in defining their scope, such as “reckless driving as proscribed by G.S. 20-140” and “passing a stopped school bus as proscribed by G.S. 20-217.” By not including a statutory reference, the aggravating factor of “driving when the person’s license is revoked” was therefore not defined by what’s required for a conviction by the criminal statute, and applied whether on a street, highway, or PVA. In contrast, those aggravating factors that do include a statutory reference are defined by what’s required for a conviction by the criminal statute. (For a closer look at State v. Dewalt, see this post by my colleague Shea Denning).
Back to DWI. The text of the grossly aggravating factor of driving while license revoked is “driving by the defendant at the time of the offense while the defendant’s driver’s license was revoked pursuant to G.S. 20-28(a1).” Another grossly aggravating factor is “serious injury to another person caused by the defendant’s impaired driving at the time of the offense.” The latter grossly aggravating factor closely describes the separate offense of felony serious injury by vehicle as defined by G.S. 20-141.4(a3). But, it does not include the statutory reference. Therefore—like in Dewalt—there are factors that reference criminal statutes and factors that do not. As a result, the reasoning from Dewalt suggests that by omitting the statutory reference, the serious injury grossly aggravating factor is not defined by what’s required for the criminal offense in G.S. 20-141.4(a3), and that by including the statutory reference, the driving while license revoked grossly aggravating factor is defined by what’s required for the criminal offense in G.S. 20-28(a1).
In addition, this is not the only place in G.S. 20-179 that driving while license revoked makes an appearance. If there are no grossly aggravating factors, DWI sentencing relies on a balancing of aggravating and mitigating factors. The aggravating factors, listed in G.S. 20-179(d), include “driving by the defendant while the defendant’s driver’s license was revoked.” This aggravating factor does not include a statutory reference to a criminal offense. Following Dewalt, including a statutory reference in the grossly aggravating factor concerning driving while license revoked, but not the aggravating factor concerning the same, is further evidence the legislature intended the grossly aggravating factor to be defined by what’s required for the criminal offense in G.S. 20-28(a1).
Another take. One possible alternative is that the legislature did not intend to define either factor by what is required to prove the offense pursuant to G.S. 20-28, and that the difference is merely that the grossly aggravating factor is intended to apply to driving while license revoked for an impaired driving revocation, while the aggravating factor applies to driving while license revoked for any revocation. This argument appears less convincing, considering the significance assigned to statutory references in Dewalt, and the option the legislature had to express this alternative intent by listing the grossly aggravating factor as “driving by the defendant at the time of the offense while the defendant’s driver’s license was revoked for an impaired driving revocation.” Before DWLR was classified into two different offenses in 2015, this is in fact how the grossly aggravating factor was phrased—except it then, as now, contained the statutory references.
Before its current form, the grossly aggravating factor was written as “[d]riving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20-28(a1), and the revocation was an impaired driving revocation under G.S. 20-28.2(a).” At the time, as now, the aggravating factor did not have any statutory references. If the legislature only intended for the difference between the two to be that the grossly aggravating factor applied to impaired driving revocations, and the aggravating factor applied to all revocations, there would have been no need for the additional statutory references in the language of the grossly aggravating factor. Since they were included, the stronger argument is that they exist to define the scope of the grossly aggravating factor as requiring the same showing as the criminal offense referenced.