Reduction or Dismissal of Charges in Implied Consent Cases

A wise man once said that “[e]xcept for death penalty cases, no sentence requires more documentation” than a sentence imposed for the misdemeanor offense of driving while impaired. Ben F. Loeb, Jr. and James C. Drennan, Motor Vehicle Law and The Law of Impaired Driving in North Carolina 81 (Institute of Government 2000 ed.). As discussed in this post, defendants convicted of impaired driving are sentenced pursuant to G.S. 20-179, which sets forth five levels of punishment depending upon the existence of aggravating and mitigating factors. Yet, the requirements for extensive documentation in impaired driving cases aren’t limited to sentencing.  In fact, detailed documentation is required when a prosecutor takes an action that enables a defendant charged with driving while impaired to avoid altogether the sentencing scheme set forth in G.S. 20-179.

Specifically, G.S. 20-138.4 requires a prosecutor to enter detailed facts in the record of any case subject to the implied consent law (which includes offenses other than impaired driving, such as driving after consuming by a person under 21) or involving driving while license revoked for impaired driving explaining orally and in open court and in writing the reasons for his action if he or she takes any of the following actions:  (1) enters a voluntary dismissal; (2) accepts a plea of guilty or no contest to a lesser-included offense; (3) substitutes another charge, by statement of charges or otherwise, if the substitute charge carries a lesser mandatory minimum punishment or is not a case subject to the implied consent law; or (4) otherwise takes a discretionary action that effectively dismisses or reduces the original charge in a case subject to the implied consent law. General explanations such as interests of justice or insufficient evidence are not deemed sufficiently detailed.

The written explanation must be signed by the prosecutor taking the action on form AOC-CR-339 and must contain the following information:

1.      The alcohol concentration or the fact that the driver refused.

2.      A list of all prior convictions of implied-consent offenses or driving while license revoked.

3.      Whether the driver had a valid driver’s license or privilege to drive in North Carolina, as indicated by DMV records.

4.      A statement that a check of the AOC database revealed whether any other charges against the defendant were pending.

5.      The elements that the prosecutor believes in good faith can be proved, and a list of those elements that the prosecutor cannot prove and why.

6.      The name and agency of the charging officer and whether the officer is available.

7.      Any reason why the charges are dismissed.

A copy of AOC-CR-339 must be sent to the head of the law enforcement agency that employed the charging officer, to the district attorney who employs the prosecutor, and must be filed in the court file. The AOC must record this data and make it available upon request.

Prosecutors occasionally inquire whether G.S. 20-138.4 requires documentation when misdemeanor implied consent charges are dismissed after a defendant is indicted for a felony implied consent offense based on the same conduct. When a misdemeanor charge is a lesser-included offense of the felony, a prosecutor’s failure to dismiss the misdemeanor charge in district court upon return of the indictment may create a double jeopardy bar to prosecution on the felony count in superior court. Cf. State v. Corbett, 191 N.C. App. 1 (2008), affirmed, 362 N.C. 672 (2008) (concluding that, by pleading guilty in superior court, defendant waived appellate review of argument that double jeopardy barred habitual impaired driving prosecution in superior court after defendant pled guilty to impaired driving in district court based on the same conduct). When the misdemeanor implied consent offense is a lesser-included offense of the implied-consent felony, G.S. 20-138.4 does not, however, apply, as the misdemeanor charge has not been dismissed.  Instead, it remains as part of the felony prosecution. Likewise, none of the other triggering statutory requirements are present.  When, however, the misdemeanor implied consent offense is not a lesser-included offense of the felony and is not separately charged in the indictment, G.S. 20-138.4 requires documentation of its voluntary dismissal by the State.