I first encountered North Carolina’s impaired driving sentencing scheme several years ago when I worked as an Assistant Federal Public Defender for the Eastern District of North Carolina. I represented defendants charged under the Assimilative Crimes Act, 18 U.S.C. § 13, with committing violations of assimilated state offenses on a certain federal enclave in Fayetteville. I recall trying to determine whether a defendant charged with violating the assimilated state law offense of driving while impaired was automatically entitled to a jury trial in federal court, given that the punishment for impaired driving can only exceed six months based on a finding of at least one grossly aggravating factor. I was practicing at the time in a post-Apprendi v. New Jersey (530 U.S. 466), but pre-Blakely v. Washington (542 U.S. 296) world, and I (and others) wondered: Did G.S. 20-138.1 and 20-179 define five separate impaired driving offenses or one offense with five levels of punishment?
North Carolina’s impaired driving statutes were amended post-Blakely to require that aggravating factors that increased the maximum punishment be found by a jury (in superior court) and be proven beyond a reasonable doubt. By affording element-like constitutional protections to these sentencing factors, the 2006 amendments largely (though not entirely) rendered academic the question of whether G.S. 20-138.1 and G.S. 20-179 defined one-or five-offenses.
While the finder of fact and burdens of proof were altered by 2006 and 2007 amendments to the impaired driving statutes, the five-level punishment structure in G.S. 20-179 (which governs sentencing for conviction of (i) impaired driving under G.S. 20-138.1, (ii) impaired driving in a commercial vehicle under G.S. 20-138.2, (iii) a second or subsequent conviction for operating a commercial vehicle after consuming alcohol under G.S. 20-138.2A, and (iv) a second or subsequent conviction for operating a school bus, school activity bus, or child care vehicle after consuming alcohol under G.S. 20-138.2B) remains intact. Given the relative complexity of this statutory sentencing scheme, I thought the topic of sentencing in impaired driving cases might be worthy of a blog post (or two).
Let’s start with the grossly aggravating factors (GAF). A finding of one GAF requires that the defendant receive a Level Two punishment, which bumps the statutory maximum sentence from six to twelve months. If the fact-finder finds more than one GAF, Level One punishment, which carries a 24-month maximum, must be imposed.
There are four types of GAFs:
1. A prior conviction for an offense involving impaired driving, defined as
- impaired driving under G.S. 20-138.1;
- habitual impaired driving under G.S. 20-138.5;
- impaired driving in commercial vehicle under G.S. 20-138.2;
- any offense under G.S. 20-141.4 based on impaired driving;
- first- or second-degree murder under G.S. 14-17 based on impaired driving;
- involuntary manslaughter under G.S. 14-18 based on impaired driving; or
- a substantially similar offense committed in another state or jurisdiction
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced;
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor.
2. Driving while license revoked at the time of the offense under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
An impaired driving license revocation is a revocation made under any of the following statutes:
- G.S. 20-13.2: consuming alcohol/drugs or willful refusal by driver under 21
- G.S. 20-16(a)(8b): military driving while impaired
- G.S. 20-16.2: refused chemical test
- G.S. 20-16.5: pretrial civil license revocation
- G.S. 20-17(a)(2): impaired driving or commercial impaired driving
- G.S. 20-138.5: habitual impaired driving
- G.S. 20-17(a)(12): transporting open container
- G.S. 20-17.2: court order not to operate (repealed effective December 1, 2006)
- G.S. 20-16(a)(7): impaired driving out of state resulting in N.C. revocation
- G.S. 20-17(a)(1): manslaughter or second-degree murder involving impaired driving
- G.S. 20-17(a)(3): felony involving use of motor vehicle, involving impaired driving
- G.S. 20-17(a)(9): felony or misdemeanor death or serious injury by vehicle involving impaired driving
- G.S. 20-17(a)(11): assault with motor vehicle involving impaired driving
- G.S. 20-28.2(a)(3): The laws of another state and the offense for which the person’s license is revoked prohibits substantially similar conduct which if committed in this State would result in a revocation listed under any of the above statutes.
3. Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
4. Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.
Level Two punishment requires a minimum sentence of seven days. If a judge suspends a Level Two sentence, the judge must impose special probation requiring an active term of at least seven days. Level One punishment requires a minimum sentence of thirty days. If a judge suspends a Level One sentence, the judge must impose special probation requiring an active term of at least thirty days. There is only one substitute for jail time: A judge may order that time be served and award credit for time served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse. See G.S. 20-179(k1).
The rules governing credit for jail time are closely prescribed. A judge may not award credit for the first twenty-four hours of time spend in jail pending trial. See G.S. 20-179(p). And, while a judge may order a term of imprisonment to be served on weekends, any term of 48 hours or more must be served in increments of 48 continuous hours. Credit for jail time is given hour for hour for time actually served. See G.S. 20-179(s)(1).
If there are no GAFs, then Level Three, Four, or Five punishment may be imposed, depending upon the relevant weight of aggravating (as distinguished from grossly aggravating) and mitigating factors. Each of these lower-level punishments may be satisfied by conditions other than active time. But that is a post for another day.