Alleging Aggravating Factors in a DWI Prosecution

A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.

The case is State v. Williams, __ N.C. App. ___, 786 S.E.2d 419 (2016), and it arose in connection with the defendant’s impaired driving of a golf cart from which a passenger fell and died.

Facts. The defendant was indicted in February 2012 for driving while impaired. The case was joined for trial with charges of aggravated felony death by vehicle that arose from the same incident. Seven days before the February 16, 2015 trial, the State served Notice of Aggravating Factors on counsel for the defendant. The notice informed the defendant of the State’s intent to prove that the defendant (1) had two or more prior convictions involving impaired driving within seven years of the instant offense, (2) drove a motor vehicle on a highway while his license was revoked for impaired driving, and (3) caused serious injury to another person. Each of these is a grossly aggravating factor that, if found at sentencing, increases the maximum punishment for misdemeanor impaired driving. Had all four factors been found, the defendant would have been sentenced at Aggravated Level One. The defendant moved to strike the notice on the grounds that it was not timely filed pursuant to G.S. 20-179(a1)(1).

Verdict and sentence. The jury returned a verdict of not guilty on the charges of aggravated felony death by vehicle, but found the defendant guilty of driving while impaired. After the jury rendered its verdict, the trial court denied the defendant’s motion to strike. Nevertheless, the trial court elected to consider only the defendant’s prior convictions as aggravating factors. The court determined that the defendant had two qualifying prior convictions, which rendered him subject to sentencing at Level One. The court sentenced the defendant to an active term of 18 months in the custody of the Statewide Misdemeanant Confinement Program.

The appeal. The defendant appealed, arguing that the trial court erred by denying his motion to strike and finding two grossly aggravating factors. The defendant argued that the State failed to comply with the ten-day notice requirement set forth in G.S. 20-179(a1)(1)—a provision that he said was designed to protect a defendant’s Sixth Amendment right to notice of aggravating factors. He contended that the State’s failure to provide the requisite notice ran afoul of Blakely v. Washington, 542 U.S. 296, 304 (2004), which holds that the Sixth Amendment prohibits a judge from inflicting punishment that the jury’s verdict does not allow.

Court of appeals opinion. The court of appeals batted away the defendant’s statutory argument based on the plain language of G.S. 20-179(a1)(1), which requires the State to provide notice of aggravating factors ten days before trial “[i]f the defendant appeals to superior court.” Because Williams was indicted in superior court, the requirement did not apply.

The court then considered whether the State’s failure to follow the statutory notice requirements violated the defendant’s Sixth Amendment right to be informed of the charges against him. Here, too, the court found no violation. The court of appeals explained that when a trial court enhances a sentence based solely on a defendant’s prior record of convictions, findings that may, pursuant to Blakely, be made by a judge and not a jury, a defendant’s Sixth Amendment right to reasonable notice is not violated. In addition, the court noted that the defendant had received seven-days-notice of the State’s intent.

Takeaway.The State is not bound by the statutory notice provisions in G.S. 20-179(a1)(1) for misdemeanor impaired driving prosecutions initiated in superior court. And the State’s failure to provide advance notice of its intent to prove prior convictions as aggravating factors at sentencing for an impaired driving prosecution initiated in superior court does not violate a defendant’s Sixth Amendment right to notice of the charges against him.

Proceed with caution. The holding in Williams is narrow since the trial court considered only the defendant’s prior convictions as aggravating factors. For any of the other aggravating factors alleged by the State to have been considered, the jury would have had to find them beyond a reasonable doubt. It is not clear in a circumstance involving those other types of factors what North Carolina’s appellate courts might have to say about the requisite notice. Clearly, Wlliams holds that the ten-day notice requirement in G.S. 20-179(a1)(1) does not apply to an indictment for misdemeanor driving while impaired. Yet it would be foolhardy for the State to assume that some lesser period of notice—or no notice at all—would be deemed constitutionally permissible in the case of aggravating factors other than prior convictions. Thus, the prudent course of action for the State is to provide notice of aggravating factors pursuant to G.S. 20-179(a1)(1) for all misdemeanor driving while impaired cases prosecuted in superior court.

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