Last week, the North Carolina Court of Appeals reversed a defendant’s conviction under G.S. 90-95(d1)(1)(c), which makes it unlawful to “[p]ossess a pseudoephedrine product if [a] person has a prior conviction for the possession or manufacture of methamphetamine.” The court ruled that the defendant’s “due process rights under the United States Constitution were violated by his conviction of a strict liability offense criminalizing otherwise innocuous and lawful behavior without providing him notice that a previously lawful act had been transformed into a felony for the subset of convicted felons to which he belonged.” In other words, the defendant’s apparent ignorance of the law excused his violation of it. Continue reading
Tag Archives: strict liability
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
In prior posts, I discussed transferred intent and criminal negligence. Intent and criminal negligence, along with malice and willfulness are some of the common states of mind that the prosecution must prove beyond a reasonable doubt to obtain a criminal conviction. With strict liability crimes, the prosecution’s case is easier. Strict liability crimes do not include a mental state as an element of the offense. To obtain a conviction for a strict liability crime, the State need only prove that the defendant committed the prohibited act. Also, certain defenses are unavailable for strict liability offenses. See, e.g., State v. Harris, 171 N.C. App. 127, 131 (2005) (voluntary intoxication is not a defense to a strict liability crime).
Identifying strict liability statutory offenses would be easy if the General Assembly expressly identified crimes as strict liability offenses. However, that does not happen. When a statutory offense is enacted and omits a mental state as an element, the courts must determine whether the legislative intent was to create a strict liability crime. State v. Watterson, __ N.C. App. __, 679 S.E.2d 897, 899 (2009) (“Whether a criminal intent is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design.”). The North Carolina courts have had several occasions to undertake such an analysis. Among the crimes that our courts have identified as strict liability offenses are:
- G.S. 14-27.2 (first-degree statutory rape). State v. Anthony, 351 N.C. 611, 616 (2000); State v. Rose, 312 N.C. 441, 445 (1984); State v. Ainsworth, 109 N.C. App. 136, 145 (1993) (“Criminal mens rea is not an element of statutory rape.”).
- G.S. 14-27.4 (first-degree statutory sexual offense). See Anthony, 351 N.C. at 616-18.
- G.S. 14-27.7A (statutory rape or sexual offense of a person who is 13, 14, or 15 years old). Anthony, 351 N.C. at 616-18; State v. Browning, 177 N.C. App. 487, 491 (2006) (“Statutory rape under [G.S.] 14-27.7A is a strict liability crime.”); State v. Sines, 158 N.C. App. 79, 84 (2003).
- G.S. 14-269.2 (posses or carry weapons on campus or other educational property). State v. Haskins, 160 N.C. App. 349 (2003).
- G.S. 14-288.8 (possession, etc., of a weapon of mass death and destruction). Watterson, __ N.C. App. __, 679 S.E.2d at 899-903 (the State was not required to prove that the defendant knew the physical characteristics of the shotguns that made them unlawful (barrels of less than eighteen inches)).
Although failure to comply with sex offender registration requirements under G.S. 14-208.11 was at one time interpreted as a strict liability crime, State v. Bryant, 359 N.C. 554, 562 (2005), the statute has been amended, S.L. 2006-247, sec. 8(a), and now requires that the defendant act willfully.
Strict liability crimes often are thought of as minor offenses with relatively light punishment in the area of public health, safety and welfare. However, as the above list indicates, North Carolina’s strict liability crimes include felonies that carry significant punishment. See Watterson, __ N.C. App. __, 679 S.E.2d at 903 (noting that the General Assembly has imposed “fairly harsh” punishments for strict liability offenses). The courts have rejected policy arguments that strict liability should not attach for serious crimes, indicating that such arguments more appropriately are addressed to the General Assembly, the state’s lawmaking body. See Anthony, 351 N.C. at 618; Browning, 177 N.C. App. at 493-94.
The United States Supreme Court has recognized that legislatures may enact strict liability crimes. Lambert v. California, 355 U.S. 225, 228 (1957) (“conduct alone without regard to intent of the doer is often sufficient” for criminal liability; “[t]here is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition”). In North Carolina, constitutional challenges to the imposition of strict liability have failed. Haskins, 160 N.C. App. at 353 (rejecting the defendant’s argument that without a mens rea element, G.S. 14-269.2 violates Equal Protection); Ainsworth, 109 N.C. App. at 145 (rejecting the defendant’s argument that the constitution requires that statutory rape include some mens rea). However, when the strict liability crime involves wholly passive conduct, due process may require that the defendant have notice of the criminality of his or her conduct. Bryant, 359 N.C. 554 (regarding G.S. 14-208.11, which at one point was a strict liability crime).
If a defendant is prosecuted as an aider and abettor to a strict liability crime, a mental state is required. Put another way, “North Carolina case law does not support a theory of vicarious strict liability.” State v. Bowman, 188 N.C. App. 635, 649 (2008) (“[a]lthough statutory rape is a strict liability crime, aiding and abetting statutory rape is not”). Thus, in Bowman, 188 N.C. App. 635, the court of appeals held that the trial court erred by denying the defendant’s request for an instruction that defendant had to know the age of the victims in order to be convicted of aiding and abetting statutory rape. If the defendant is prosecuted for an attempt to commit a strict liability crime, the elements of attempt require intent. Sines, 158 N.C. App. at 85. However, the intent element for an attempted strict liability crime appears to be less stringent than the intent element for aiding and abetting a strict liability crime. In Sines, 158 N.C. App. 79, for example, the court of appeals stated that to be convicted of attempted statutory sexual offense, the defendant must intend to engage in a sexual act. Sines held: attempted statutory sexual offense does not require that the defendant intended to commit a sexual act with an underage person, but only that defendant intended to commit a sexual act with the victim; thus, a defendant’s knowledge of victim’s age or victim’s consent are not defenses to the crime of attempted statutory sexual offense. Id. at 85.
