To Prove Aggravating Factors for DWI in Superior Court, State Must Provide Notice

One person convicted of misdemeanor impaired driving may be placed on probation and ordered to complete 24 hours of community service. Another may receive an active sentence of three years’ imprisonment. The severity of the sentence depends largely on the presence of aggravating factors, which must be proved by the State.

When a misdemeanor impaired driving conviction entered in district court is appealed for trial de novo in superior court, the State must notify the defendant no later than ten days before trial that it intends to prove one or more aggravating factors. G.S. 20-179(a1)(1). If the State fails to provide that notice, the factors may not be used by the superior court to determine the defendant’s sentence. The court of appeals recently affirmed in State v. Hughes, ___ N.C. App. ___ (April 16, 2019), that there is no exception to this rule for aggravating factors that were found by the district court below.

State v. Hughes. The defendant in Hughes was convicted of impaired driving in district court and sentenced to Level One punishment based on the presence of two grossly aggravating factors: (1) driving while the defendant’s license was revoked for impaired driving in violation of G.S. 20-28(a1); and (2) a prior conviction for an offense involving impaired driving within seven years before the date of the current offense. He received a suspended sentence of 24 months and was ordered to serve 30 days imprisonment as a condition of special probation. The defendant appealed to superior court for trial de novo.

The State did not notify the defendant before trial in superior court of its intent to prove aggravating factors. The case proceeded to trial and the jury returned a guilty verdict. The superior court thereafter held a sentencing hearing at which the State introduced evidence of the defendant’s driving record over the defendant’s objection. The superior court found the same aggravating factors as the district court and sentenced the defendant to 24 months’ imprisonment. The defendant appealed, arguing that the superior court erred by finding two grossly aggravating factors when the State had failed to notify the defendant of its intent to prove those factors.

The court of appeals held that the State’s failure to provide notice of aggravating factors as required by G.S. 20-179(a1)(1) precluded the trial court from considering those factors at sentencing – even if evidence supporting those factors was presented in district court. The court reasoned that while using sentencing factors in district court “may notify a defendant of the existence of evidence supporting those factors, it does not give adequate notice of the State’s intent to use those factors in a subsequent de novo proceeding, in a separate forum, potentially tried by a different prosecutor.” Slip op. at 6.

The court rejected the State’s argument that the defendant was not prejudiced by the error because the existence of the aggravating factors was not disputed and providing notice would not have changed the result at sentencing. The court concluded that the defendant was prejudiced:  The court erroneously relied upon factors for which no notice had been provided. And the court’s reliance on those factors resulted in a harsher sentence.

An earlier case. The Hughes court relied upon structured sentencing cases in which the State failed to notify defendants of aggravating factors, stating that it was unaware of binding precedent addressing the State’s failure to provide notice of aggravating factors as required by G.S. 20-179(a1)(1). The parties and the court appear to have overlooked State v. Reeves, 218 N.C. App. 570 (2012), in which the court vacated a defendant’s Level Three impaired driving sentence due to the State’s failure to notify the defendant of its intent to use an aggravating factor.

There’s a form for that. The AOC has created a form (AOC-CR-338) for prosecutors’ use in notifying defendants of their intent to prove aggravating factors in impaired driving cases. Routinely completing this check-box form and serving it upon the defendant or defense counsel in impaired driving cases appealed to superior court for trial de novo will ensure that the court is able to consider the State’s evidence of aggravating factors at sentencing.


Limited application. The notification requirement in G.S. 20-179(a1)(1) somewhat curiously applies only to cases in which the defendant appeals a conviction sentenced under G.S. 20-179 to superior court. Though most misdemeanor impaired driving charges arrive in superior court by virtue of an appeal for trial de novo, not all do. Misdemeanor impaired driving falls within the original jurisdiction of the superior court when it is joined for trial with a felony, results from a plea in lieu of a felony charge, is a lesser-included offense of a felony, or results from indictment initiated by presentment. There appears to be no principled reason for requiring notice of aggravating factors only for misdemeanor impaired driving cases that are appealed to superior court and not to those that originate there. Nevertheless, the court of appeals in State v. Williams, ___ N.C. App. ___, 786 S.E.2d 419 (2016), construed G.S. 20-179(a1)(1) as written and rejected the defendant’s argument that the superior court erred by relying on aggravating factors that the State served notice of seven days before trial in an impaired driving case within the court’s original jurisdiction.

But see. . . .The defendant in Williams also argued that the State’s failure to provide notice violated his Sixth Amendment right to be afforded notice of the charges against him. The court of appeals rejected that argument on the basis that the defendant’s sentence had been enhanced solely by prior convictions – factors for which he was not constitutionally entitled to notice.  Moreover, the court noted that the State had provided the defendant with notice of its intent to prove these aggravating factors seven days before trial, which arguably satisfied the Sixth Amendment’s requirement for “reasonable notice.”

Given that the constitutional requirements are not coextensive with the statutory requirements, the State is well advised to provide notice of aggravating factors for all impaired driving cases in superior court that are subject to sentencing under G.S. 20-179, regardless of whether the cases originated in that forum or arrived there pursuant to appeal for trial de novo.

It’s easy to do. Just fill out the form and serve it.

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