Laura’s Law

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In yesterday’s post, Jeff mentioned Laura’s Law, which increases the maximum punishment for impaired driving.  Today’s post discusses those provisions in more detail.

S.L. 2011-191, dubbed Laura’s Law in recognition of 17-year-old Laura Fortenberry, who died last summer when the car she was riding in was struck by an impaired driver who had previous DWI convictions, increases the maximum punishment for impaired driving, increases the length of time that continuous alcohol monitoring may be required as a condition of probation, and makes other changes applicable to defendants charged with and sentenced for DWI. The act is effective for offenses committed on or after December 1, 2011.

Currently, the most severe sentence that can be imposed for any of the impaired driving offenses sentenced pursuant to G.S. 20-179 is a Level 1 sentence, which carries a maximum term of imprisonment of 24 months and a maximum fine of $4,000. A person convicted of impaired driving is sentenced at Level 1 if two or more grossly aggravating factors exist. (You can read more about grossly aggravating factors and the offenses sentenced pursuant to G.S. 20-179 here.) S.L. 2011-191 requires that a judge impose Aggravated Level One punishment when there are at least three grossly aggravating factors in an impaired driving case sentenced under G.S. 20-179. (For ease of reference, I’ll refer to this as a Level A1 DWI.) Level A1 DWI requires a minimum term of 12 months imprisonment up to a maximum term of 36 months. The maximum fine is $10,000. A defendant sentenced for a Level A1 DWI is not eligible for parole. Level A1 defendants must, however, be released from imprisonment four months before the end of the “maximum imposed term of imprisonment” and must be placed on post-release supervision with a requirement that they abstain from alcohol during this four-month period as verified by a continuous alcohol monitoring system. Continuous alcohol monitoring systems (CAM) employ ankle bracelets that test the wearer’s sweat for signs of alcohol use. See Ames Alexander, DWI tool is curbed in N.C., available here (describing technology and chronicling past controversy regarding use of CAM.); see also G.S. 15A-1343.3 (defining a “‘continuous alcohol monitoring system’ as a device that is worn by a person that can detect, monitor, record, and report the amount of alcohol within the wearer’s system over a continuous 24-hour daily basis”). A defendant’s post-release supervision may be revoked for consuming alcohol or failing to comply with continuous alcohol monitoring requirements.

Laura’s Law does not except Level A1 DWIs from Department of Correction regulations regarding the awarding of sentence reduction credits for sentences imposed upon conviction of G.S. 20-138.1. See G.S. 148-13(b). Thus, Level A1 sentences appear to be subject to the day-for-day credit sentence reduction credits described in DOC’s sentence credit policy, available here, subject to the limitation set forth in G.S. 20-179(p)(2), which provides that good time credit may not reduce the mandatory minimum period of imprisonment.

An example may help to illustrate the application of these provisions to a Level A1 sentence. Suppose a defendant convicted of impaired driving is sentenced at Level A1 to a term of imprisonment of 18 months.  The defendant is eligible for one day of credit for each day served in custody without an infraction, resulting in a possible 9 months of good time credit. However, pursuant to G.S. 20-179(p)(2), good time credit cannot reduce the sentence below the mandatory minimum period, which, in this case, is 12 months.  It’s possible that this defendant may, nevertheless, be released before the expiration of 12 months. Recall the post-release supervision provisions described earlier, which require that a Level A1 defendant be released to post-release supervision four months before the end of the “maximum imposed term of imprisonment.” What is the maximum imposed term?  Eighteen months?  Or the 12 months that result after accounting for good time credit? If it is the latter, then (assuming a full award of good time credit) this defendant must be released to post-release supervision after serving 8 months of her sentence. If it is the former, then the defendant would not be released until serving 14 months (four months before the end of the 18-month term imposed at sentencing). Look for a future post from sentencing-guru Jamie Markham addressing post-release supervision generally and interpreting “maximum imposed term of imprisonment” for purposes of calculating a Level A1 defendant’s release date.

The term of imprisonment for a Level A1 DWI may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. Note that this term of special probation imprisonment is significantly shorter than the mandatory minimum active term of 12 months. In this respect, Level A1 punishment departs from the sentencing requirements for other levels of impaired driving for which the mandatory minimum term of imprisonment matches the minimum term of imprisonment required as a condition of special probation. If a Level A1 defendant is placed on probation, the judge must require the defendant to abstain from alcohol for at least 120 days and may require abstinence verified by CAM for the entire term of probation. As is the case for probationary sentences imposed for other levels of DWI, the judge must require as a condition of probation for a Level A1 sentence that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6. Upon conviction of Level A1 impaired driving, the defendant’s driver’s license is permanently revoked pursuant to amended G.S. 20-19(e). Though a license permanently revoked under G.S. 20-19(e) may, under certain circumstances, be conditionally restored after it has been revoked for three years, a person whose license was revoked for conviction of Level A1 DWI must, in addition to meeting other conditions, have ignition interlock in order to have his or her license restored.

Laura’s Law affects other types of DWI sentencing as well. The act increases from 60 days to the term of probation the maximum period for which abstinence and CAM may be required of defendants sentenced for Level 1 or Level 2 DWIs. The act repeals G.S. 20-179(h1)(h2), which formerly prohibited a court from requiring CAM if it determined the defendant “should not be required to pay the costs” of CAM and the local government entity responsible for the incarceration of the defendant was unwilling to pay for CAM.

The act further sanctions CAM by amending G.S. 15A-534(i) to authorize abstinence from alcohol and CAM as a pretrial release condition for a defendant charged with an offense involving impaired driving who has been convicted of an offense involving impaired driving within seven years of the offense for which the defendant is being placed on pretrial release.

Laura’s Law also enacts new G.S. 7A-304(a)(10), which requires that a defendant sentenced pursuant to G.S. 20-179 pay, in addition to other applicable costs, a fee of $100.

As Jeff noted earlier this week, we’re fortunate to have such wonderful colleagues at the School of Government. Two of those folks, Jamie Markham and Alyson Grine, deserve special mention here for sharing their thoughts on Laura’s Law, which have informed and improved this post.

7 comments on “Laura’s Law

  1. Readers with an interest in DWI issues may also want to review SB 241 (S.L. 2011-329). SB 241 amends G.S. 20-179 reagarding when Level 1 punishment applies. The bill also expands gross aggravator (4).

  2. Dear Shea,

    Your article and Jeff’s on Laura’s Law are very imformative, and criminal law attorneys, such as myself, would be well advised to consider, thoroughly, the legal implications and consequences of same for their DWI clients. However, after 18 years of representing defendants charged with criminal violations of our laws, including DWI offenses, it is my humble opinion that there is one way that may curb or lessen DWI offenses, statewide…the N.C. General Assembly should make said charge a “felony” rather than a “misdemeanor.” Although I may incur some criticism from my fellow colleagues of the Bar for making this suggestion, I think it would be well received by the general public. Over the July 4th holiday, there were approximately 1,200 DWI arrests, statewide. You can increase the penalties for this misdemeanor offense “until the cows come home,” but, if said offense were elevated to a “felony” charge, I think it could have a significant impact on the incident or occurance rate of said offense. Of course, I could be wrong, but I think my suggestion is worth consideration by our lawmakers. If said change in the law would reduce the incident or occurance rate of the offense by as much as 1%, which I believe would be far greater, then an innocent life, such as Laura’s, may have been saved not to mention future innocent lives that could be saved. If our lawmakers have a problem with changing DWI charge from a misdemeanor to a felony, they should, at least, made it a felony charge if the defendant has any prior DWI convictions…period! Just “food for thought!” Thank you.

    Ron Jessup, Esq.

  3. Interesting suggestion, Ron…

  4. I think it is terrible to drive drunk, but I have a problem with the methods used to test and maintain the breathalyzer machines. My son was charged with DWI and I examined the methods used to test and calibrate the machines and they are sending many potentially innocent people to jail, taking their cars, and causing them to pay high insurance. And the sad fact is that you can’t question their methodologies in court as long as their incorrect methods are law.

    I have a Bachelor of Science degree and have experience auditing Fitness for Duty and DOT testing programs and the methods used by North Carolina would not be acceptable for evidential grade equipment under those programs. I called the manufacturer of the equipment to ask them questions about how to perform testing on the machines and they would not talk to me and I called the NC state people who maintain the machines and they were not knowledgeable at all about the QA requirements required for testing the breathylzer machines. I had to get the Department of Transportation to send me the manufacturer’s QA plan for testing the machines to meet evidential grade requirements since the manufacturer would not. And believe me the state is not close to meeting the QA requirements. They told me the machines used in NC did not have to meet DOT requirements even though the manufacturer submitted a QA plan to DOT which was the minimum requirements for testing the machines to be evidential grade. These machines could be very inaccurate in the non conservative direction the way they are tested, but you can’t challenge this in court. I have a multi page report that proves these machines are not accurate the way they are tested. The state of NC holds commercial drivers to the DOT requirements, so they are required to follow their QA plan requirement, but they don’t. Many innocent people are being convicted of DWI in NC.

  5. […] active sentences for aggravated level one DWI. As Shea and I have discussed in earlier posts (here, here, and here, among others), they are different from other DWI sentences. No parole. No good […]

  6. […] (There is also a fourth type of post-release supervision for Aggravated Level One DWI—discussed here—but let’s leave that aside for now. […]

  7. […] Denning summarized S.L. 2011-191, Laura’s Law, in a prior post. To recap, the law adds a new punishment level for impaired driving sentencing, Aggravated Level […]

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