Y’all may be tired of reading about sentencing in impaired driving cases, particularly if you’ve read this entire bulletin. But I’m hoping the reader-market will bear a few more sentencing-related posts since I’ve not tired of writing about the subject.
Recently, in a session I taught about sentencing under G.S. 20-179, a lively discussion broke out regarding whether a defendant is subject to more than one grossly aggravating factor under G.S. 20-179(c)(3) when his or her impaired driving results in serious injury to more than one other person. I was surprised that this topic generated so much interest. I had assumed that after the legislature in 2006 created the offense of felony serious injury by vehicle, nearly all defendants who drove while impaired and seriously injured another person were charged with the felony offense. For that reason, I guessed that judges were rarely called upon to apply this factor in misdemeanor sentencing hearings under G.S. 20-179. Regardless of whether I was correct about the rarity of its application, I certainly misgauged the level of interest.
G.S. 20-179(c)(3) states that it applies when there is “[s]erious injury to another person caused by the defendant’s impaired driving at the time of the offense.” So, if a person drives while impaired and seriously injures two people, do two grossly aggravating factors apply? There are no North Carolina appellate court cases on point, and reasonable minds can and do disagree about the answer. I tend to think that a single factor applies regardless of the number of victims for one simple reason. Unlike the subdivision of G.S. 20-179(c) that defines the grossly aggravating factor for prior convictions and specifies that each qualifying prior conviction counts as a separate factor, see G.S. 20-179(c)(1), G.S. 20-179(c)(3) does not specify whether a separate factor applies for each person injured. Given that these grossly aggravating factors appear in the same subsection, the absence of language providing for the assessment of one factor for each victim provides support for the view that only one factor applies, regardless of the number of victims.
On the other hand, adherents of the one-factor-per-victim rule might argue that the provision’s reference to a serious injury to “another person” rather than serious injury to another person or other persons evinces the legislature’s intent for application of a separate grossly aggravating factor for each person seriously injured. They might also contend that assessing one factor for each victim under G.S 20-179(c)(3) comports with the rule in the assault context that when a defendant engages in a single course of assaultive conduct that results in injury to two victims, he may be charged with two counts of assault, one for each victim. See State v. Wright, 711 S.E.2d 797, 799 (N.C. Ct. App. 2011), review denied, 365 N.C. 351 (2011). Such multiple charges do not violate a defendant’s right to be free from double jeopardy as the legislature has discretion in defining the allowable unit of prosecution, subject to constitutional limitations. See State v. Smith, 323 N.C. 439, 441 (1988). This analysis almost certainly applies to permit the prosecution of a defendant for one count of felony serious injury by vehicle for each victim seriously injured in a single incident of impaired driving since unintentionally causing serious injury to another person is an element of the offense. See State v. Mumford, 364 N.C. 394 (2010) (defendant charged with and convicted of five counts of felony serious injury by vehicle for crashing car into group of pedestrians).
The unit of prosecution rule, however, doesn’t neatly apply to the analysis of grossly aggravating factors under G.S. 20-179. Regardless of whether aggravating sentencing factors under G.S. 20-179 are the functional equivalent of elements for purposes of constitutional analysis, an issue discussed here, their characterization as sentencing factors continues to speak to the legislature’s intent regarding their application. No serious argument can be made that the General Assembly intended that a person be charged with a separate count of impaired driving for each person seriously injured, which would be the most straightforward application of a unit-of-prosecution analysis supporting a separate charge for each victim.
That leads us back to where we began. It boils down to determining whether the legislature intended for multiple aggravating factors to apply when a defendant’s impaired driving on a single occasion seriously injuries more than one person.
The impaired driving determination of sentencing factors form, AOC-CR-311, contains a single check box for serious injury to another, which may indicate that multiple factors seldom are found under this provision. Certainly a jury would have to make a special finding to support a determination that more than one person was seriously injured.
So, practitioners, you tell me. What’s your answer and what is the answer you hear most often in court?