Attempting to Drive While Impaired

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Is it a crime to attempt to drive while impaired?

Consider these facts. Suppose a law enforcement officer sees a person stumble to a car outside of a bar, unlock the car, and sit down in the driver’s seat.  While the person fumbles with his keys in an attempt to put the correct one in the car’s ignition, the officer approaches the car. The officer asks the person to get out of the car. The person complies, and the officer subsequently arrests him for impaired driving.

Fast-forward to trial.  At the close of the evidence, the defendant moves to dismiss the charges, arguing that the State’s evidence is insufficient to convict him of impaired driving as he did not drive a vehicle on a street, highway, or public vehicular area while impaired. The State concedes that the defendant failed to complete the crime of DWI as he never turned on the car’s engine.  The attorney for the State argues, however, that the evidence is sufficient to convict the defendant of attempted impaired driving.  How should the judge rule?

What is attempt?  Attempt is a common law crime consisting of the following elements:

(1) the intent to commit the substantive offense,

(2) an overt act done for that purpose which goes beyond mere preparation, but falls short of the completed offense.

State v. Coble, 351 N.C. 448, 449 (2000); see generally Jessica Smith, North Carolina Crimes 67-70 (7th ed. 2012).

A conviction for an attempted crime may be based upon a charging instrument that charges a defendant with the completed crime.  State v. Sines, 158 N.C. App. 79, 83-84 (2003).

Can a person attempt to commit a strict liability offense?

To prove attempt, the State must show that the defendant formed the intent to commit the substantive offense. Defendants charged with strict liability offenses have argued that attempting a strict liability offense is a logical impossibility since the underlying crime does not require proof of the defendant’s state of mind.  The North Carolina Court of Appeals has rejected that argument, concluding that the intent required to prove intent to commit such a crime is the intent to accomplish the criminal result. Sines, 158 N.C. App. at 85-86. Thus, to prove attempted statutory rape or a statutory sexual offense—strict liability crimes that do not require proof that the defendant knew the victim’s age—the State must prove that the defendant intended to commit sexual intercourse or a sexual act.  The State is not required to prove that the defendant knew the child’s age since the defendant could be convicted of the completed crime without this knowledge.  Id. at 86.

Though the state’s appellate courts have not evaluated the proof required for attempted impaired driving, their reasoning in the statutory sex offense context would appear to require that the State prove the defendant intended to drive a vehicle on a street, highway or public vehicular area. The State would not be required to prove that the defendant intended to commit these acts while impaired as prove of knowledge of impairment is not required to establish the offense of impaired driving. See, e.g. State v. Rose, 312 N.C. 441, 445 (1984) (rejecting argument that statutory provisions defining impaired driving based on a specified alcohol concentration are void for vagueness, opining that while people may not know when their blood alcohol concentration reaches the per se level, they do “know the line exists” and “that drinking enough alcohol before or during driving may cause them to cross it”); State v. Highsmith, 173 N.C. App. 600 (2005) (concluding that the defendant “knew or should have known” that the prescription medication he consumed, Floricet, could impair him, “and was thus on notice that, by driving after taking Floricet, he risked cross[ing] over the line into the territory of proscribed conduct.”).

Punishment.  If the defendant is convicted of attempted impaired driving, how is he punished?  Driving while impaired in violation of G.S. 20-138.1 is punished under G.S. 20-179, which sets forth five levels of punishment ranging in order of severity from Level Five (least serious) to Aggravated Level One (most serious). The appropriate level of punishment is determined based on the existence of grossly aggravating, aggravating, and mitigating factors. G.S. 20-179(f1) provides that a person convicted of aiding and abetting impaired driving is subject to Level Five punishment, and excuses the judge in such a case from finding grossly aggravating, aggravating and mitigating factors.  The statute sets forth no such specific instruction for sentencing attempts.

G.S. 14-2.5 provides that “[u]nless a different classification is expressly stated,” attempts to commit a misdemeanor or felony are “punishable under the next lower classification as the offense which the offender attempted to commit.” The statute illustrates the application of this rule in several contexts, noting that an attempt to commit a Class I felony is a Class 1 misdemeanor, and an attempt to commit a Class 3 misdemeanor is a Class 3 misdemeanor as there is no lower classification.  The statute’s use of the term “classification” and its reference to specific classes of offenses make clear its application to structured sentencing offenses. As noted earlier, misdemeanor driving while impaired is not subject to structured sentencing classifications but is instead sentenced pursuant to G.S. 20-179.  It is, therefore, not clear whether G.S. 14-2.5 applies to attempted DWI, and, if it does, how it is to be applied.

Finally, a savvy defense attorney might argue that attempted DWI must be sentenced as a Class 1 misdemeanor pursuant to G.S. 14-3(a), which prescribed such punishment for any misdemeanor for which no specific punishment is prescribed by statute.

What does your experience suggest?  Would most law enforcement officers charge the defendant in this circumstance or merely warn him not to drive?  Would an officer typically wait until the defendant turned the car’s engine on, or would he approach the car earlier as this hypothetical suggests? Are attempt cases tough to prove?  How are convicted defendants sentenced?  Share what you know by sending in a comment below.

3 comments on “Attempting to Drive While Impaired

  1. Some examples of driving that do not involve actually moving the vehicle include:

    • A person sits in a vehicle, behind the steering wheel, and starts the car’s engine to make the heater operable, but the car remains motionless on the street. State v. Fields, 77 N.C. App. 404, 335 S.E.2d 69 (1985).
    • A person is found asleep and intoxicated, sitting in the driver’s seat of his car, which was stopped in its proper lane at a stop sign, with the lights out and the engine running with no one else in or near the car. The Court of Appeals ruled that it can be fairly and logically inferred from the circumstances that the man had driven his car on the road while intoxicated. State v. Carter, 15 N.C. App. 391, 190 S.E.2d 241 (1972).
    • A person is seated behind the steering wheel of a car stopped on the handicapped ramp in a parking lot, and the engine is running. When roused, the person turned off the car’s engine, supporting a finding that the defendant was in actual physical control of the vehicle. State v. Mabe, 85 N.C. App. 500 (1987).

    If turning on the heat can result in a conviction, the court may conclude that sitting in the car with the keys can also result in a conviction.

  2. How I’ve seen this play out is the officer might see a guy stumbling toward his car and warn him that he seems to be impaired and shouldn’t be driving. The guy thanks the officer for giving him a break (often admitting “Yeah, you’re right man. That would have been dumb.” or something similar) and promises to take a cab or catch a ride with a friend. The officer notes the description of the car and driver, then pulls around the corner and waits a few minutes. 9 times out of 10 the guy drives off anyway and gets to find out just how expensive and inconvenient a DWI charge is.

  3. Oh, please, who is asking, Barney Fife?

    If the tires have not rolled, or at least the backup lights come on, only an idiot would charge him with attempted “driving” while impaired. Especially when waiting one or two more seconds would seal the deal.

    One Judge I recall even tossed out a case where the officer did see the drunk stumble up to the car and waited for him to try to drive away; dismissed on the theory that a better course of action would have been to stop the drunk from driving in the first place.

    No DA I have ever talked to would even consider prosecuting such a charge. Especially in Counties where hundreds of DWI cases are backed up waiting for trial, where the Defendants were tooling down the road with BAC’s over .20 or higher!

    If this suggestion were taken seriously, why not just go on into the bars and arrest everyone drinking witih car keys in their pockets.

    If they are not rolling towards a public vehicular area, it would be silly to waste the booking time and docket space, IMHO.

    (Your mileage may be different.)

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