When you can’t find what you’re looking for in North Carolina, you may have to extend your search out of state. Case in point: I’ve just discovered an opinion from the Minnesota Court of Appeals that answers the elusive question of how many aggravating factors apply if a person drives while impaired with more than one child in the car. And unlike some things you can only find in another state–like major league baseball and pot-laced gummy bears–you can bring this one home to the Old North State.
The case is State v. Fichtner, 867 N.W.2d 242 (Minn. Ct. App. 2015). It arose from the prosecution of Tarah Fichtner for driving while impaired and child endangerment based upon Fichtner’s driving with her three children in her van.
A Minnesota law enforcement officer stopped the van Fichtner was driving just before 2 a.m. on March 11, 2013 after noticing that its passenger-side brake light was out. During the course of the stop, the officer formed probable cause to believe that Fichtner was impaired and arrested her for DWI.
Fichtner was subsequently charged with second-degree DWI, based on the presence of two or more statutory aggravating factors. The State considered the presence of each of Fichtner’s three children in the van to constitute a separate aggravating factor. Fichtner also was charged with child endangerment for the same conduct.
Aggravating factor of having a child in the car. Minnesota law provides that that “having a child under the age of 16 in the motor vehicle at the time of [an impaired driving] offense” is an aggravating factor so long as the child is more than 36 months younger than the offender. Minn. Stat. § 169A.03.
North Carolina law used to similarly provide that having a child under the age of 16 in the vehicle was a grossly aggravating factor for impaired driving. See G.S. 20-179(c)(4) (2010). In 2011, this provision was broadened to include the presence of a child under the age of 18, a person with the mental development of a child under the age of 18, or a person with a physical disability preventing unaided exit from the vehicle. G.S. 20-179(c)(4).
Motion to dismiss. Fichtner moved at trial to dismiss the second-degree DWI charge on the basis that it improperly stacked each child in the vehicle as a separate aggravating factor. The trial court denied the motion, reasoning that “‘just as “a qualified prior impaired driving incident” means each prior incident is a separate aggravating factor, so does “a child” mean each child in the vehicle is a separate aggravating factor.’” Id. at 247.
Fichtner appealed. The court of appeals noted that Minnesota law specifies that “‘each qualified prior impaired driving incident within the ten years immediately preceding the current offense is counted as a separate aggravating factor.’” Id. at 249 (citing Minn. Stat. § 169A.095). No statutory provision, in contrast, addresses whether multiple children in a vehicle may be counted as multiple aggravating factors. (The same is true for North Carolina’s statutory scheme. See G.S. 20-179(c)(1) (stating that “[e]ach prior conviction is a separate grossly aggravating factor”).)
The Minnesota court concluded that the plain language of its statutes permitted the presence of one or more children to constitute only one aggravating factor. The court explained that the presence of “a child” is necessary for the aggravating factor to apply and that whether “a child” is present is a binary inquiry. Either one is present or one is not. The court remarked that “[t]he legislature knows how to provide for aggregating a factor for enhancement purposes” and did so provide for prior impaired driving incidents. Because the legislature made no similar provision for the presence-of-a-child aggravating factor, and because for purposes of statutory interpretation the singular term “a child” includes its plural—children–, the court concluded that the presence of either a child or multiple children constitutes only one aggravating factor. Id. at 250.
The court therefore reversed Fichtner’s conviction for second-degree DWI and remanded the case for entry of judgment for third-degree DWI.
Given the similarities between the Minnesota and North Carolina statutory provisions and the absence of any North Carolina case law on point, it seems likely that our courts will be receptive to the Fichtner analysis.
What about sentencing for child endangerment? As I noted earlier, Fichtner also was convicted of child endangerment. She was sentenced to one year of imprisonment for that offense in addition to one year of imprisonment for impaired driving, though the sentences were to run concurrently. The appellate court reversed the sentences, citing a state statutory rule that limits punishment to a single sentence when a single behavioral incident results in the violation of more than one criminal statute. See Minn. Stat. § 609.035. The court remanded Fichtner’s convictions for resentencing on the most serious conviction only.
Had Ms. Fichtner driven while impaired with her children in the vehicle in North Carolina, she likely would have been charged with impaired driving and misdemeanor child abuse. Had she been convicted of both charges, the sentencing judge might have wondered whether she could be sentenced for both charges or whether one of the judgments had to be arrested. In North Carolina, she may properly be sentenced for both charges. Our state has no general statutory rule like Minnesota’s. Instead, we determine whether a defendant may be sentenced for multiple charges arising from the same incident by analyzing whether the sentences would violate the constitutional prohibition against double jeopardy. So long as each sentenced offense contains an element the other does not, there is no double jeopardy bar to multiple sentences. The defendant may be sentenced for both unless there is a specific statutory provision that bars multiple sentences.