A Young Man with a Long History of Driving While Impaired

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Rabah Samara, the young man who took the wheel of the Cadillac after it crashed into and killed sports reporter Stephen Gates as he was changing a tire on I-40 in 2003 and drove away from the scene, was back in Wake County criminal court yesterday. Samara, now 37, plead guilty to misdemeanor impaired driving—resolving his fourth charge for that offense—and was sentenced to three years of probation and 14 days of imprisonment, which he may serve on weekends. The News and Observer reported that Stephen Gates’ mother, Pat Gates, watched Samara’s hearing from the front row of the courtroom.

Advocates of stiffer penalties for impaired driving might point to Samara’s case as evidence of the need for reform. Despite recent legislative acts increasing the punishment for misdemeanor DWI, Samara’s punishment did not approach the three-year maximum sentence that may be imposed for the highest level of misdemeanor DWI. That’s because Samara was punished at Level II, the level of punishment that applies to DWI sentencing when only one grossly aggravating factors is present. And Samara could not have been indicted for habitual impaired driving, a felony, because he had not been convicted of three or more offenses involving impaired driving within ten years of the offense to which he pled guilty yesterday.

How could Samara have only one grossly aggravating factor?  The News and Observer reported that while Samara had been charged with DWI four times since Gates’s death, he was convicted of only three of those charges. The first DWI conviction was based on his driving away from the accident scene where Gates was killed while impaired (Samara was acquitted of hit and run charges, and the law subsequently was changed to make it unlawful for passengers to leave the scene of an accident), and occurred more than seven years before the DWI to which Samara plead guilty yesterday. For that reason, it was not a grossly aggravating factor under G.S. 20-179(c)(1). A subsequent DWI charge was dismissed, and Samara was convicted of another DWI charge based on his driving while impaired in March 2013. Thus, it appears that only one grossly aggravating factor—the conviction for the March 2013 offense—applied.

The sentence imposed upon Samara was neither the minimum nor maximum sentence. Samara could have received as few as 7 days in jail, and as much as 12 months. Had Samara abstained from alcohol for at least 90 consecutive days as monitored by a continuous alcohol monitoring system, he could have avoided all time in jail. Samara’s attorney told the court yesterday that Samara abstained from alcohol for a month and was monitored by a continuous alcohol monitoring device during that period, but could not afford to have the device any longer.

Samara will be required, as a condition of probation, to obtain a substance abuse assessment and complete the recommended treatment. Because of his prior conviction, Samara will not be able to satisfy this requirement by attending Alcohol and Drug Education Traffic School, but instead must complete treatment of a length and type determined by the results of the assessment. Samara’s license also will be “permanently” revoked pursuant to G.S. 20-19(e). Samara nevertheless will be eligible to have his license conditionally restored after three years if he is not convicted of any additional motor vehicle or alcohol- or drug-related offenses and can demonstrate that he is not an excessive user of alcohol or drugs and is not unlawfully using any controlled substance.

Samara’s latest DWI was based on an alcohol concentration of 0.10 detected after he was stopped at a checkpoint—the kind of offense that, were it not for Samara’s past, would be considered a low-level DWI.

Should Samara again be charged with DWI, that offense still would be a misdemeanor. By now, Samara’s first DWI conviction is more than 10 years old. Thus, he would have only two qualifying predicate convictions rather than the three required by the habitual impaired driving statute, G.S. 20-138.5.

Readers, what do you think of Samara’s sentence? Is his involvement in fleeing from the scene of Gates’ death even a relevant consideration? Is the look-back period for impaired driving long enough or should it be longer? Is treatment required as a condition of probation more likely to rehabilitate Samara than a longer stint in jail?

20 comments on “A Young Man with a Long History of Driving While Impaired

  1. While I have never had a drink in my life I recognize alcoholism as a disease. I do not have a cure. russ

    • Those with diseases that can kill others they come into contact with should be quarantined.

  2. The look back should be longer, to cover to the same amount of time that now habituals have (10 as opposed to 7). Of course as our local jails are forced to house all new DWI convictions, I bet we will see even lower sentences.

    I’ve filed aggravating factors before in cases where 1) Defendant hit and killed a person but fled from the scene and was finally arrested 15 days later, far too late to prove impairment 2) Defendant has six DWI convictions outside of 10 years 3) Defendant has several prior hit and runs conviction and the current charge was habitual. Sometimes, there the “OTHER” box is appriopate.

    • Two responses:

      1. Of course, aggravating factors won’t get someone jailed, more than likely; only grossly aggravating factors are likely to do that. So these non-statutory aggravating factors will probably only result in someone getting a higher fine or more community service.

      2. There’s a real question as to whether non-statutory aggs comply with constitutional notions of due process and notice. SCOTUS, with Scalia at the forefront, has made clear that anything that increases someone’s potential punishment is an element of the crime, no matter what name you give it. I question whether a DA has the power to create new elements out of whole cloth.

  3. Our legislature and much of our public do not want strict enforcement of drinking & driving laws(out of self protection?) any more than they want red light cameras, electronic tracking of speeding between 2 distant points, bogus radar signals, etc. The public is not serious about ‘fencing in’ the wide open highways. A fourth of the drivers we are meeting head on on the highway don’t have either license, insurance, or any intention of obeying all traffic laws.

    • There is a problem when our law enforcement officers are encouraged to write traffic citations for ‘revenue purposes’. This IS NOT within the Nature or spirit of the Law, BUT is very common practice. They are using regulatory laws (polices) meant for ‘protection’ (Nature and spirit of the actual Policy) as revenue bills.

      • How do you know this is common practice? I’ve actually never encountered a police agency that has a policy, either tacitly or explicitly, which encourages revenue generation via traffic citations.
        In fact, when you look at the breakdown of what traffic citations DO generate money for it is clear that it is not the departments which gain.

        • This is one link that suggests it. http://www.statisticbrain.com/driving-citation-statistics/ I have encountered others of the last several years including the click it and ticket campaigns and the DWI check points where no probable cause to stop is needed here in NC.

          It is not the Officers or their departments that gain, it is the City, County, and State coffers that gain. Which is where the officers pay checks come from. Given time I am sure I could find more reference.

  4. The answer is to have four levels of factors rather than three. Currently we have Mitigating, Aggravating and Grossly Aggravating. When you kill somebody as a result of your carelessness, there should be an Abominable Aggravating factor which bumps you up into a level of punishment of corresponding severity to your crime. The ripple effect should be if you offend again in the same manner, that Abominable Aggravating factor shadows you no matter how long ago it occurred.

    • I would agree with that. The reckless endangerment of lives needs to be considered if you have managed to kill someone. A mere ‘arrest record’ will haunt you the rest of your natural born days even if there is an acquittal.

      • Not if you get the charge expunged under NCGS 15A-146, it won’t.

        And I continue to have a problem with this desire to punish people even if they “get off”: 30-day suspensions, one-year suspensions, vehicle seizures, “ruining their record,” etc. How about we give the trial system some credit?

    • I would agree with this, more levels of differing aggravating factors would definitely help eliminate some of the more lenient sentences for what the populace considers abhorrent behavior.

      However, in this man’s case, from reading the news articles, I don’t believe he was the driver who struck and killed the other person. I think he just drove away. Still reprehensible behavior, however it’s of a different level I believe.

  5. That is a tough one. I wonder why he was not charged with negligent manslaughter (homicide) the first time and sentenced to some time along with the DWI charge. Anytime there is a death or serious injury involved I would support a stiffer sentence.

    When there is no property damage, or personal injury, or other damages I feel that the ‘current sentencing guidelines are fair’.

    I personally do not drink alcohol or engage any form of substance abuse, and feel that those that do are assuming the risk. I do not feel it is prudent or wise for anyone at anytime to ‘drive’ or travel on the publics right of ways while impaired. Even sleep deprivation can be an impairment.

    I feel there are ‘flaws in the current laws’ concerning testing under the implied consent doctrine. As it stands a person suffering from a health condition such as COPD can be charged tried and convicted of willful refusal when in fact they are incapable of completing breathalyzer tests.

    As it is (The Policy) it is left up to the charging officer or analyst discretion to determine if the person required to perform such tests are capable of providing a ‘sufficient sample’ on a breathalyzer, or request the person to comply to another from of chemical analyses, such as a blood draw or urine test.

    This opens the door wide for an officer that for some reason don’t like a person to simply push a button, print out a statement from the machine that says refused, take that before a magistrate, and swear out an affidavit that a ‘person willfully refused’ when in fact they did not.

    I have first hand knowledge of just such an incident, which is still pending over four years later. At a ‘pretrial hearing’ authorized under 20-16 (g) it was determined that the person had not willfully refused and that the machine failed to gather a sufficient sample. The DA stated this fact on open court, the judge rendered a judgment and entered an order (AOC-CVR-5) that suggests that of all the claims stated on the affidavit at least one was insufficient. The only claim on the instrument is ‘willful refusal’.

    At a DMV hearing had over a year later the Officer has testified that the person ‘did not refuse’ and in fact blow into the testing device 5 times (It was 6 I was there and counting). The DMV Office refuses to release this PUBLIC INFORMATION to anyone including the defendants lawyer. There has been well over 25 hearing dates, excluding initial appearance, and DMV hearing.

    The matter is now on hold in a superior court trial de novo waiting for those records. The person tried to get a blood draw after they were released and the Hospital REFUSED to do it without an order from magistrate. They called the magistrate who refused to assist. They called the central dispatch and they refused any assistance.

    These POLICES NEED CLARIFICATION to protect the State, and its Citizens from abuse.

  6. To be clear, Samara was not driving the car when it hit Stephen Gates. He was charged with impaired driving in 2003 based upon his taking control of the car and driving away from the scene after the accident.

    • Thanks for the clarification. I was under the impression that they were the operator that struck and killed the person.

  7. As long the the legislature continues to make conviction easier, the penalties imposed for DWI are substantial enough. It seems to bother no one (except defense attorneys) that we have developed three areas of criminal law: capital, DWI, and everything else. Why is .08 on a ten (10) year old machine (or instrument) a “presumption”? Why must motions to suppress be made pre-trial in DWI, but not in any other misdemeanor? Why is the AOC keeping records of guilty/not guilty verdicts in DWI?
    It seems that few are concerned with the punishment as long as the conviction is recorded. Make the guilt/innocence phase fairer, and we can talk about the punishments.

  8. This is stating the obvious, but a .10 blow indicates above the legal limit but not drunk & going through a roadblock indicates no problems with the actual driving. As far as we can tell from this report the defendant has never driven in any way that was objectively dangerous. What I mean is that there is no indication that he has driven above the speed limit, passed on a curve, drifted out of his lane, turned without signaling, etc. As far as we know he is the safest driver on the highway in North Carolina.

    What bothers me about his story is not that he has repeat DWI charges but that he assisted his friend in avoiding legal consequences for killing someone and he was apparently prosecuted for his traffic offense (DWI) only. Both he & his friend should have been prosecuted for killing Gates, probably under an involuntary manslaughter charge (killing someone unintentionally by an unlawful or negligent act). The friend/driver should have been prosecuted as the principal (class F felony) & Samara as an accessory after the fact (H felony).

    Addressing Shea’s questions: Samara’s sentence is harsh for merely driving through a roadblock with above the legal limit of alcohol in his blood, but he’s very lucky to have previously avoided a felony conviction under which he could have been ordered not to drink or have his probation revoked (under prior law). Of course his probation would have long ended before the current DWI charge but he would possibly have had to go 3 years (instead of one month) without drinking or have his felony sentence activated long ago. Samara’s fleeing in the Gates’ killing incident should not be a consideration since he was not prosecuted for that crime and certainly not convicted (even if he was guilty). The look-back period is long enough. Jail doesn’t rehabilitate criminals. Jail increases the likelihood of repeated criminal behavior. Threat of jail might decrease criminal behavior, though. Treatment might help, but not likely. At least treatment won’t actively cause harm the way jail does.

  9. I think the look-back in the Gates death is irrelevant unfortunately, because Samara wasn’t the driver who killed that man. He was drunk, and he did drive, but he drove after the fact. At best (worst..?) he’s guilty of accessory in that case since he helped the other individual flee (what was that individual’s sentence, out of curiosity?).
    As far as determining felony level DWI I feel like we should have a lower threshold to reach to acquire that – children in the car should be automatic felony DWI, crashes with serious injury whether it’s a first offense or not, those types of factors.
    I think that the look back could stand to be longer, say 15 years, because I feel like getting ONE DWI is excessive, personally, but our law allows them to have almost 1 every three years as it stands now. That’s more often than you renew your driver’s license.
    Treatment might offer some advantages to jail, but I think jail is also required. If we just offer treatment what’s the punishment? Why would people worry about getting convicted if they just get sent to treatment, complete it, and leave, have they really learned? I’ve seen so many people relapse so frequently that really COMPELLED treatment doesn’t mean anything, people only get better if they truly want to seek treatment. Some times jail is a wake up call, some times not, but a combination is definitely a better option than one or the other.

    • The death caused by another driver is moot, immaterial, and irrelevant to this persons driving record. The prosecutor knows or should know this and if the prosecutor brings it up at trial they need to be sanctioned.

      As the G.S. stand now the 11 year old case is outside the limits of both 7 or more and 10 established. Any reference to it is moot, irrelevant, and immaterial; could cloud and confuse the Court and jurists if present. The prosecutor knows or should now this and if it is brought up at trial they need to be sanctioned.

  10. North Carolina _SHOULD_ eliminate limits to the look-back period, lower the BAC threshold to .04, increase prison sentences, and require all persons convicted of DWI to have interlock devices installed in their vehicles because everybody knows that intoxicated driving is stupid and dangerous, and accordingly, it should be punished with a heavy hand. When your loved one is maimed by an intoxicated driver, it makes you research and realize that stricter penalties, enforcement, and accountability laws that have been enacted in other places really do serve as an effective deterrent. Intoxicated driving is a violent and preventable crime, and if you find yourself pooh-poohing it as a minor crime, then you haven’t been personally affected yet…and I’m working hard to help make it so that you never have to feel that sort of pain and anguish.

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