Do Old DWIs Count toward Felony Prior Record Level?

Author’s note: This post has been updated since its initial publication. The original version overlooked G.S. 15A-1340.11(7), a statute that is clearly relevant to the discussion.

Do old (as in, pre-1997) impaired driving convictions count toward felony prior record level? My answer is that they probably do—at least back to 1983—but there is no clear guidance from the appellate courts.

When Structured Sentencing was first enacted in 1994, DWIs did not count toward felony prior record level. G.S. 15A-1340.14 (1994). Only Class 1 and, later (under S.L. 1995-507), Class A1 misdemeanors counted, and Chapter 20 offenses aside from misdemeanor death by vehicle were explicitly excluded.

In 1997, the General Assembly amended G.S. 15A-1340.14(b)(5) to say that prior impaired driving convictions under G.S. 20-138.1 would count for 1 point toward a person’s record. S.L. 1997-486. The effective date for the relevant part of that legislation said merely that it was “effective December 1, 1997”—with no indication about the convictions or sentences to which it applied. To avoid an ex post facto issue, however, it has always been assumed that the change would only apply to the sentencing of offenses committed on or after December 1, 1997. To apply it to earlier offenses would impermissibly increase punishment in a way that the defendant would not have been aware of at the time of his or her crime. A usage note to that effect has long been on the back of the prior record level worksheet (form AOC-CR-600).

But that limitation is for the offense date of the crime being sentenced. It does not relate to the date of the prior DWI convictions themselves. There is no constitutional problem with counting them; as of December 1, 1997, would-be felons who reviewed G.S. 15A-1340.14 would have been on notice that their prior DWIs would count for a point toward the sentencing of any subsequent offense.

Some have argued that the legislature’s failure to specify that older DWIs count means that they should not. There may be something to that as a matter of lenity. On the other hand, the statute itself refers to “prior” convictions, and prior record level determinations are inherently backward looking. Additionally, the definition of “prior conviction” in Structured Sentencing includes covered convictions “regardless of whether the crime was committed before or after the effective date” of the law. G.S. 15A-1340.11(7); see also State v. Rich, 130 N.C. App. 113 (1998) (noting in 1998 that the General Assembly placed no limitations upon the sentencing court’s consideration of prior convictions occurring more than 10 years before the conviction being sentenced).

With that authority in mind, it appears that pre-1997 DWIs probably count for a point in the sentencing of a crime committed on or after December 1, 1997. In State v. Armstrong, 729 S.E.2d 730 (2012) (unpublished), the court of appeals saw no problem with counting a 1987 DWI toward a series of recent drug crimes. But Armstrong is unpublished, and the issue in the case was the defendant’s stipulation to the prior conviction, not the propriety of counting the conviction itself. Thus, the case cannot be said to have resolved the matter definitively.

Even if pre-1997 DWIs do count toward a defendant’s record, there may be some argument that pre-1983 DWIs do not. Before 1983, DWI was set out in G.S. 20-138, not G.S. 20-138.1. The felony prior record level statute refers only to impaired driving under G.S. 20-138.1, and so arguably excludes older DWIs committed under the prior statute.