Sentencing the Worst Kind of DWI

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Most impaired drivers arrive at their destinations without harming themselves or anyone else.  And few such drivers are actually stopped by police.  That may explain why eight percent of people nationwide who were over 16 years old reported riding in a vehicle with a driver they thought may have consumed too much alcohol to drive safely.  Young adult males were even more likely to engage in this behavior, with 24 percent of men aged 21 to 24 reporting having done so in the past year.

Though most impaired drivers don’t crash, newspapers are replete with tales of those who do, often with tragic consequences.  Four hundred and two people died in alcohol-impaired driving fatalities in North Carolina in 2012.  Nationwide that year, more than 10,000 people were killed in crashes involving an impaired driver—31 percent of the total traffic fatalities for the year. Impaired drivers themselves are killed most often in such crashes, comprising 65 percent of the deaths in 2012, with passengers in their vehicles a distant second, making up 16 percent of the deaths.  Occupants of other vehicles accounted for 11 percent of fatalities.

When a person drives while impaired in North Carolina and proximately causes the death of another, the person may be charged with one or more felony offenses, including second-degree murder, aggravated felony death by vehicle, felony death by vehicle, and involuntary manslaughter as well as misdemeanor impaired driving.  In 2013, 23 charges of aggravated felony death by vehicle and 130 charges of felony death by vehicle were filed in North Carolina.

Questions often arise at sentencing regarding whether a person may be separately punished for multiple felony convictions when each is based upon the defendant’s driving while impaired and causing the death of a single other person, as well as the underlying crime of misdemeanor DWI.

Below are the rules governing sentencing for such convictions.

Second degree murder. When a person is convicted of second degree murder based upon driving while impaired, the court must arrest judgment for a conviction of involuntary manslaughter, aggravated felony death by vehicle or felony death by vehicle based on the same incident and the same death. The person may not be sentenced for involuntary manslaughter because the offense is a lesser-included offense of second degree murder, and the legislature has not sanctioned cumulative punishment for such offenses.  The person may not be sentenced for aggravated felony death by vehicle or felony death by vehicle, both Class D felonies, because the governing statute, G.S. 20-141.4(b), authorizes punishment under that statute “unless the conduct is covered under some other provision of law providing greater punishment.” State v. Davis, 364 N.C. 297, 304 (2010). Thus, punishment may be imposed for the greater offense of second-degree murder, a Class B2 felony in this circumstance, but not the lesser offenses of aggravated felony death by vehicle or felony death by vehicle.  In addition to imposing a sentence for second-degree murder in such cases, the court may sentence the defendant for the underlying misdemeanor DWI, which is an offense with elements distinct from those required to support a conviction for second-degree murder.

Felony death by vehicle. If a person is convicted of aggravated felony death by vehicle or felony death by vehicle (both Class D felonies, though the former conviction must be punished in the aggravated range) and involuntary manslaughter based upon a single incident of driving while impaired that results in the death of another, the court must sentence the defendant pursuant to G.S. 20-141.4 and may not impose a sentence for involuntary manslaughter based on the same death.  Instead, the court must arrest judgment for the conviction for involuntary manslaughter, a Class F felony, which merges into the conviction of felony death by vehicle.  State v. Lopez, 363 N.C. 535, 536, 681 S.E.2d 271, 272 (2009).

The court may not impose a sentence for a conviction of misdemeanor impaired driving based on the same incident either, since it is a lesser included offense of both aggravated felony death by vehicle and felony death by vehicle, and is not an offense for which the legislature has not authorized cumulative punishment.

Similar sentencing questions arise in less serious cases when person is convicted of several misdemeanor offenses arising from a single incident of impaired driving, such as impaired driving under G.S. 20-138.1, impaired driving in a commercial motor vehicle under G.S. 20-138.2, or driving after consuming by a person under 21 under G.S. 20-138.3.

Impaired driving in a commercial motor vehicle.  When a person is convicted of misdemeanor impaired driving and impaired driving in a commercial motor vehicle based on a single incident of driving, the person must be sentenced for both offenses but the aggregate punishment imposed by the court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S 20-138.1.

Driving after consuming. Driving by a person under 21 years old after consuming alcohol in violation of G.S. 20-138.3 is not a lesser included offense of impaired driving under G.S. 20-138.1.  Thus, a person convicted of G.S. 20-138.3 (a Class 2 misdemeanor) and an offense involving impaired driving based on a single incident of driving may be sentenced for both offenses. The aggregate punishment imposed by the court, however, may not exceed the maximum applicable to the offense involving impaired driving.

General Deterrence. Those are the rules for dealing with compounded punishment for a compounded crime.  It is difficult to know their general deterrent effect.  And general—rather than specific—deterrence seems the appropriate focus as most drivers involved in fatal impaired driving crashes do not have a previous DWI conviction—at least not in the recent past as measured by the federal government.  The National Highway Traffic Safety Administration reported in December 2013 that 93 percent of the drivers involved in fatal crashes had no previous DWI convictions, based on Fatality Analysis Reporting System data that reports DWI convictions occurring up to three years before the date of the crash.

3 comments on “Sentencing the Worst Kind of DWI

  1. What I don’t understand is I’ve watched and heard and am now living through the nightmare of drunk drivers and aggressive drivers killing innocent people. Good people. They get sentenced to short sentences and do it again or remain a lesser person in the community. Why is the courts so tolerant of this? Why isn’t there punishment set forth to further detour this problem? My sister was murdered by a driver driving her car and he was clearly driving too fast. He isn’t even charged with her death a week later. I say eye for an eye in all of these situations. My faith in the courts have dwindled to hardly none. The laws are for the criminals in my opinion and a multitude of people I know opinions. As far as the rights of a murder they should have none. They took everything from someone that never can have a right again.

    • Scot I agree with you. I’m living the same horror every day. My Son was murdered by an agree drunk. He plead guilty to voluntary manslaughter and felony death by motor vehicle. He is now serving time in a MINIMUM security prison. I feel like I’ve be victimized again.

  2. My sister in law was just killed by a drunk driver in North Carolina. Are you saying he will get little to no time?

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