When you can’t find what you’re looking for in North Carolina, you may have to extend your search out of state. Case in point: I’ve just discovered an opinion from the Minnesota Court of Appeals that answers the elusive question of how many aggravating factors apply if a person drives while impaired with more than one child in the car. And unlike some things you can only find in another state–like major league baseball and pot-laced gummy bears–you can bring this one home to the Old North State.
Tag Archives: 20-179
This is not a sports story – despite what the title may suggest. Besides, I am so over March Madness. There was a little too much madness and not enough March for this double Tarheel.
State v. Geisslercrain is among of yesterday’s batch of court of appeals opinions. (The court issued twenty-four published opinions yesterday—leading me to conclude that our intermediate appellate experienced its own version of March Madness). Geisslercrain limits the application of State v. Green, 209 N.C. App. 669 (2011), an earlier opinion in which the court characterized Level Four DWI sentences as “presumptive.” Yesterday’s Geisslercrain replaces an earlier opinion, discussed here, which was withdrawn shortly after it was released.
The facts. The defendant in Geisslercrain appealed her district court conviction of impaired driving to superior court. The State did not notify the defendant in advance of trial that it intended to use any aggravating factors to enhance the defendant’s sentence. Thus, though the jury found the defendant guilty of impaired driving, it did not find any aggravating factors. The judge at sentencing nevertheless applied the aggravating factor in G.S. 20-179(d)(3) for negligent driving that leads to a reportable accident. The judge also found the mitigating factor in G.S. 20-179(e)(4) based on the defendant’s record of safe driving. The judge determined that the factors counterbalanced one another and therefore sentenced the defendant to Level Four punishment. See G.S. 20-179(f)(2) (requiring Level Four punishment when aggravating factors are substantially counterbalanced by mitigating factors). Matters went further awry from there as the judge sentenced the defendant to 12 months imprisonment, which he suspended on condition that the defendant perform 48 hours of community service. A Level Four sentence carries a maximum punishment of 120 days imprisonment. G.S. 20-179(j).
The issues. The defendant argued on appeal that the trial court erred by enhancing the defendant’s maximum sentence based on its own finding of an aggravating factor not found by the jury. See Blakely v. Washington, 542 U.S. 296 (2004) (requiring that any fact that increases the defendant’s sentence beyond the maximum sentence that could be imposed based solely on the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and found beyond a reasonable doubt). The State contended that no Blakely error occurred since the defendant was sentenced at Level Four, and the court of appeals in Green had characterized sentencing at Level Four as “tantamount to a sentence within the presumptive range.” Green, 209 N.C. App. at 681.
The defendant further argued that her sentence could not be enhanced by an aggravating factor for which the State failed to provide notice pursuant to G.S. 20-179(a1)(1). The State contended that its failure to provide the statutorily required notice was harmless, again relying on the notion that the Level Four sentence was in the presumptive range.
The analysis. The court of appeals began by reviewing the scheme set forth in G.S. 20-179 for sentencing defendants convicted of DWI. G.S. 20-179 establishes six sentencing ranges, ranging from Level A1 (most serious) to Level Five (least serious). The range applicable to a particular defendant is determined based on the existence and balancing of aggravating and mitigating factors, and trial courts have little room to exercise discretion in imposing such sentences. The three most severe punishment levels are imposed only when a grossly aggravating factor is found to exist. When there are no grossly aggravating factors, a defendant must be sentenced to Level Three, Four, or Five punishment.
There were no grossly aggravating factors in Geisslercrain, so the trial court was required to determine which of the three lower levels of punishment was appropriate. Level Three punishment is required if aggravating factors substantially outweigh mitigating factors. G.S. 20-179(f)(1). The court of appeals explained that Level Three punishment also is required if only aggravating factors—and no mitigating factors—are present.
Level Five punishment is required if mitigating factors substantially outweigh any aggravating factors. G.S. 20-179(f)(3). And, Geisslercrain explained, if only mitigating factors are present, the trial court must impose a Level Five punishment.
If there are no aggravating or mitigating factors or if the factors counterbalance one another, the trial court must impose Level Four punishment. G.S. 20-179(f)(2).
The trial court in Geisslercrain sentenced the defendant to Level Four punishment, concluding that the single aggravating factor (which was erroneously found by the judge and not the jury) was substantially counterbalanced by the single mitigating factor. Had the trial court not considered the erroneously found aggravating factor, there would have been only the single mitigating factor. The presence of a single mitigating factor and no aggravating factors would have required the trial court to sentence the defendant to Level Five punishment. Thus, the court of appeals reasoned, the trial court’s finding of the aggravating factor increased the penalty for the crime beyond the prescribed maximum, thereby violating Blakely.
Why Level Four sentences are not presumptive. The court rejected the notion that Level Four punishment under G.S. 20-179 is similar to a presumptive range sentence under Structured Sentencing. Under the latter scheme, a trial court has the discretion to sentence a defendant within the presumptive range even when only mitigating factors are found. Trial courts have no such discretion under G.S. 20-179 to impose a Level Four sentence based upon a finding of only mitigating factors.
The court further held that it was not bound by State v. Green, a case in which the defendant was sentenced to Level Four punishment based on the trial court’s finding of two aggravating factors and two mitigating factors. In Green, the trial court, rather than the jury, inappropriately determined one of the two aggravating factors, which was based on the defendant’s alcohol concentration. The other aggravating factor was based on the trial court’s finding of a prior conviction, a sentencing factor that was within its province to determine. Geisslercrain reasoned that even with the error in Green, “there remained one valid aggravating factor to counterbalance the two mitigating factors;” thus, the trial court could have imposed Level Four punishment based on its determination that the one aggravating factor substantially counterbalanced the two mitigating factors. Accordingly, the court held that Green did not apply.
The outcome. Geisslercrain determined that the Level Four punishment was inappropriate given the trial court’s finding of the aggravating factor and the State’s failure to provide proper notice. The court of appeals remanded the case to the trial court, directing it to impose Level Five punishment.
Geisslercrain provides a clear roadmap for sentencing defendants convicted of driving while impaired and for determining when Blakely errors occur. If only the Tarheels’ road to North Texas or Nashville could have been similarly clear . . . .
Category: Motor Vehicles, Sentencing | Tags: 20-179, DWI, DWI sentencing, presumptive, Sentencing, State v. Geisslercrain, State v. Green
Is it a crime to attempt to drive while impaired?
Consider these facts. Suppose a law enforcement officer sees a person stumble to a car outside of a bar, unlock the car, and sit down in the driver’s seat. While the person fumbles with his keys in an attempt to put the correct one in the car’s ignition, the officer approaches the car. The officer asks the person to get out of the car. The person complies, and the officer subsequently arrests him for impaired driving.
Fast-forward to trial. At the close of the evidence, the defendant moves to dismiss the charges, arguing that the State’s evidence is insufficient to convict him of impaired driving as he did not drive a vehicle on a street, highway, or public vehicular area while impaired. The State concedes that the defendant failed to complete the crime of DWI as he never turned on the car’s engine. The attorney for the State argues, however, that the evidence is sufficient to convict the defendant of attempted impaired driving. How should the judge rule?
What is attempt? Attempt is a common law crime consisting of the following elements:
(1) the intent to commit the substantive offense,
(2) an overt act done for that purpose which goes beyond mere preparation, but falls short of the completed offense.
State v. Coble, 351 N.C. 448, 449 (2000); see generally Jessica Smith, North Carolina Crimes 67-70 (7th ed. 2012).
A conviction for an attempted crime may be based upon a charging instrument that charges a defendant with the completed crime. State v. Sines, 158 N.C. App. 79, 83-84 (2003).
Can a person attempt to commit a strict liability offense?
To prove attempt, the State must show that the defendant formed the intent to commit the substantive offense. Defendants charged with strict liability offenses have argued that attempting a strict liability offense is a logical impossibility since the underlying crime does not require proof of the defendant’s state of mind. The North Carolina Court of Appeals has rejected that argument, concluding that the intent required to prove intent to commit such a crime is the intent to accomplish the criminal result. Sines, 158 N.C. App. at 85-86. Thus, to prove attempted statutory rape or a statutory sexual offense—strict liability crimes that do not require proof that the defendant knew the victim’s age—the State must prove that the defendant intended to commit sexual intercourse or a sexual act. The State is not required to prove that the defendant knew the child’s age since the defendant could be convicted of the completed crime without this knowledge. Id. at 86.
Though the state’s appellate courts have not evaluated the proof required for attempted impaired driving, their reasoning in the statutory sex offense context would appear to require that the State prove the defendant intended to drive a vehicle on a street, highway or public vehicular area. The State would not be required to prove that the defendant intended to commit these acts while impaired as prove of knowledge of impairment is not required to establish the offense of impaired driving. See, e.g. State v. Rose, 312 N.C. 441, 445 (1984) (rejecting argument that statutory provisions defining impaired driving based on a specified alcohol concentration are void for vagueness, opining that while people may not know when their blood alcohol concentration reaches the per se level, they do “know the line exists” and “that drinking enough alcohol before or during driving may cause them to cross it”); State v. Highsmith, 173 N.C. App. 600 (2005) (concluding that the defendant “knew or should have known” that the prescription medication he consumed, Floricet, could impair him, “and was thus on notice that, by driving after taking Floricet, he risked cross[ing] over the line into the territory of proscribed conduct.”).
Punishment. If the defendant is convicted of attempted impaired driving, how is he punished? Driving while impaired in violation of G.S. 20-138.1 is punished under G.S. 20-179, which sets forth five levels of punishment ranging in order of severity from Level Five (least serious) to Aggravated Level One (most serious). The appropriate level of punishment is determined based on the existence of grossly aggravating, aggravating, and mitigating factors. G.S. 20-179(f1) provides that a person convicted of aiding and abetting impaired driving is subject to Level Five punishment, and excuses the judge in such a case from finding grossly aggravating, aggravating and mitigating factors. The statute sets forth no such specific instruction for sentencing attempts.
G.S. 14-2.5 provides that “[u]nless a different classification is expressly stated,” attempts to commit a misdemeanor or felony are “punishable under the next lower classification as the offense which the offender attempted to commit.” The statute illustrates the application of this rule in several contexts, noting that an attempt to commit a Class I felony is a Class 1 misdemeanor, and an attempt to commit a Class 3 misdemeanor is a Class 3 misdemeanor as there is no lower classification. The statute’s use of the term “classification” and its reference to specific classes of offenses make clear its application to structured sentencing offenses. As noted earlier, misdemeanor driving while impaired is not subject to structured sentencing classifications but is instead sentenced pursuant to G.S. 20-179. It is, therefore, not clear whether G.S. 14-2.5 applies to attempted DWI, and, if it does, how it is to be applied.
Finally, a savvy defense attorney might argue that attempted DWI must be sentenced as a Class 1 misdemeanor pursuant to G.S. 14-3(a), which prescribed such punishment for any misdemeanor for which no specific punishment is prescribed by statute.
What does your experience suggest? Would most law enforcement officers charge the defendant in this circumstance or merely warn him not to drive? Would an officer typically wait until the defendant turned the car’s engine on, or would he approach the car earlier as this hypothetical suggests? Are attempt cases tough to prove? How are convicted defendants sentenced? Share what you know by sending in a comment below.
Category: Crimes and Elements, Motor Vehicles, Sentencing | Tags: 20-179, attempt, DWI, Sentencing, strict liability
