Nearly two thousand defendants were charged last year with aiding and abetting driving while impaired in violation of G.S. 20-138.1. A defendant aids and abets impaired driving when he knowingly advises, instigates, encourages, or aids another person to drive while impaired and his actions cause or contribute to the commission of the crime. See State v. Goode, 350 N.C. 247, 260 (1999). But what, practically speaking, does this entail?
Defendant turns her car over to impaired driver and rides along
One situation clearly covered by the aiding and abetting theory is that in which a person knowingly gives control of her vehicle to an impaired person who then drives the vehicle on a street, highway, or public vehicular area while the owner rides along as a passenger. See State v. Gibbs, 227 N.C. 677, 678 (1947) (“When an owner places his motor vehicle in the hands of an intoxicated driver, sits by his side, and permits him, without protest, to operate the vehicle on a public highway, while in a state of intoxication, he is as guilty as the man at the wheel.”); State v. Whitaker, 43 N.C. App. 600, 604-05 (1979) (“[W]e hold that when a death results from the operation of a motor vehicle by an intoxicated person not the owner of that vehicle, the owner who is present in the vehicle and who with his knowledge and consent permits the intoxicated driver to operate the vehicle, is as guilty as the intoxicated driver.”); see also Story v. United States, 16 F.2d 342, 344 (D.C. Cir. 1926) (owner of and passenger in vehicle convicted as aider and abettor where impaired passenger asked defendant for and was given permission to drive); State v. Satern, 516 N.W.2d 839, 840 (Iowa 1994) (owner of and passenger in vehicle convicted as an accomplice where he “turned over” the driving to a person who was impaired); State v. Stratton, 591 A.2d 246, 248 (Me. 1991) (owner of and passenger in vehicle convicted as an accomplice where he asked his impaired employee to drive because employee was “soberer”); State v. Lemacks, 996 S.W.2d 166, 172 (Tenn. 1999) (owner of and passenger in vehicle convicted as an accomplice where evidence uncertain if he was driving, but where in any event, he gave keys to impaired co-defendant); Williams v. State, 352 S.W.2d 230, 230 (Tenn. 1961) (owner of and passenger in vehicle convicted as aider and abettor where he had no valid license and had impaired friend drive).
Defendant turns his car over to impaired driver
It is somewhat less clear whether a person may be convicted of aiding and abetting impaired driving if he knowingly gives control of his vehicle to a person who is impaired, but does not himself accompany the driver. I have discovered no North Carolina cases considering this circumstance, but it seems likely that such conduct would support a conviction for aiding and abetting DWI. The vehicle owner’s presence in the car in the aiding and abetting cases cited above was probative of his consent to the driving as well his knowledge of the driver’s impairment. Yet a vehicle owner who hands over his keys to an impaired driver but does not himself ride along has provided the same degree of assistance and appears no less culpable than the owner who elects to accompany the driver. Indeed, the Court of Appeals of Georgia concluded in Guzman v. State, 586 S.E.2d 59 (Ga. App. 2003), that the owner of a vehicle who was neither the driver nor a passenger in the car aided and abetted driving under the influence where he gave beer and his car keys to the 14-year-old driver.
Defendant fails to stop impaired person from driving
A person may not be convicted of aiding and abetting impaired driving based on nothing more than her failure to stop a person she knows to be impaired from driving. See State v. Sanders, 288 N.C. 285, 290 (1975) (“The mere presence of the defendant at the scene of the crime, even though he is in sympathy with the criminal act and does nothing to prevent its commission, does not make him guilty of the offense.”)
The North Carolina Court of Appeals considered such a claim in Smith v. Winn-Dixie Charlotte, Inc., 142 N.C. App. 255, 264 (2001). Smith was a civil action in which the plaintiff, who was injured when a seventeen-year-old impaired driver struck her vehicle, alleged negligence by the grocery store who sold beer to the driver’s underage friend and negligence per se by the driver’s friends whom she contended aided and abetted the underage driver in violating G.S. 20-138.1.
The record in Smith established that the driver’s friends drank with him on the evening of the accident and that they saw the driver consume six beers in a short period of time. They did not attempt to stop him from driving his own car afterwards. The court of appeals determined, for purposes of the defendant-friends’ motions for summary judgment, that this evidence was not sufficient to establish that the friends aided and abetted the driver in committing the offense of driving while impaired. The court noted the lack of evidence that the friends intended to aid the driver or that they communicated any such intent. Moreover, the court stated that even assuming the friends knew or should have known the driver was impaired, they had no duty to prevent him from getting into his car and attempting to drive.
The Supreme Court of Vermont wrestled with more difficult facts in State v. Millette, 795 A.2d 1182 (Vt. 2002). There, the evidence established that the defendant and his friend left a night club in the early morning hours after a day and night of drinking. The defendant, whose car was parked in the parking lot, suggested to his friend that they pull the car behind the night club and sleep. The defendant’s friend removed the keys from the defendant’s pocket and said he would drive the defendant home. The friend wrecked the car on the way home and was killed. The court concluded that these facts failed to establish that the defendant aided and abetted driving while impaired, noting that cases predicated on this theory of criminal liability rested on “more active participation” by the defendant than was present in Millette.