Fourth DWI Conviction in Less Than Ten Years for Hickory Woman

Earlier today, a Hickory woman was convicted of her fourth impaired driving offense in less than ten years. She was first convicted of DWI in Catawba County in July 2005 and July 2007. She was later convicted of DWI in Alexander County in March 2010. The latest conviction stems from an offense back in December 2013 when she was pulled over for an expired registration and subsequently charged with DWI. She was sentenced to no less than 13 months and no more than 25 months of imprisonment. Let’s look at how the sentence for the Hickory woman was determined under North Carolina statute.

When sentencing a person convicted of impaired driving, North Carolina G.S. 20-179(c) directs the judge or jury to “determine whether there are any grossly aggravating factors in the case.” One of the grossly aggravating factors is

A prior conviction for an offense involving impaired driving if:

a.     The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

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c.     The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.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.

Looking at the prior convictions of the Hickory woman, the July 2005 occurred outside of the seven-year window to count as a grossly aggravating factor. However, the July 2007 and March 2010 convictions would both be within seven years of her latest offense, which occurred in December 2013.

Under G.S. 20-179(c), the judge must impose an Aggravated Level I sentence if there are three or more grossly aggravating factors. If the defendant was driving with a minor in the car or if there are two other grossly aggravating factors, then the judge is required to impose a Level I sentence. The judge must impose a Level II sentence if the defendant was not driving with a minor in the car and only one other grossly aggravating factors applies.

In the case of the Hickory woman, she would not be sentenced at the most severe level, the Aggravating Level I. Although she had three prior convictions, only two of them counted as grossly aggravating factors. Since she only had two grossly aggravating factors, the statute required the judge to impose a Level I sentence.

Subsection (g) of G.S. 20-179 states that a Level I punishment includes a fine of up to $4,000 and term of imprisonment between between 30 days and 24 months. The term of imprisonment may be reduced to 10 days if the defendant abstains “from alcohol consumption [as] monitored by a continuous alcohol monitoring system.”

So the statute provides that the maximum term of imprisonment for a Level I offender is 24 months. How then was the Hickory woman sentenced to a term of imprisonment between 13 and 25 months? To figure this out, we have to look at the habitual impaired driving statute.

A person who has committed three impaired driving offenses and commits a fourth within 10 years violates the North Carolina habitual impaired driving statute. G.S. 20-138.5(a) states that

A person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within 10 years of the date of this offense.

Included in the definition of “offenses involving impaired driving as defined in G.S. 20-4.01(24a)” is “[i]mpaired driving under G.S. 20-138.1.” All of the Hickory woman’s impaired driving offenses occurred in North Carolina, so they all qualify as “impaired driving under G.S. 20-138.1.” It is interesting to note that even if one of the offenses had occurred in another state, they would still be covered under the definition’s subsection (d) which includes “[a]n offense committed in another jurisdiction which prohibits substantially similar conduct prohibited by the offenses in this subsection.”

The first of the woman’s convictions was in March 2005 and the most recent offense occurred in December 2013. Therefore, the woman’s four convictions fall within a ten-year period, and she can be convicted under the habitual impaired driving statute.

The habitual impaired driving statute has a separate punishment from the impaired driving offense. G.S. 20-138.5(b) states that “[a] person convicted of violating this section shall be punished as a Class F felon and shall be sentenced to a minimum active term of not less than 12 months of imprisonment, which shall not be suspended. Sentences imposed under this subsection shall run consecutively with and shall commence at the expiration of any sentence being served.” In addition, subsection (d) provides that “[a] person convicted under this section shall have his license permanently revoked.”

G.S. 15A-1340.17 sets out the structured sentencing scheme. A presumptive range of imprisonment term is given for each class of felony and point range determined from prior convictions. A judge is permitted to deviate from the presumptive range based on the finding of aggravating and mitigating factors found under G.S. 15A-1340.16 (which are separate and different from those found in the dwi sentencing statute).

Under G.S. 15A-1340.14(b), it would appear that the prior DWI convictions would count for one point each when determining the woman’s point range from prior convictions. However, in State v. Gentry (1999), the North Carolina Court of Appeals held that in determining the prior record for the sentencing of habitual impaired driving, the court should not count the prior DWI convictions upon which the habitual impaired driving conviction is made.

If the woman had no other prior convictions, she would be sentenced at Level I. The presumptive range for a Class F felony at a Level I is not less than 13 months and not more than 16 months imprisonment. Someone with 18 or more prior conviction points would be sentenced at Level VI and would have a presumptive range of not less than 26 months and not more than 33 months imprisonment.

If you have been charged with habitual impaired driving, visit www.rflaw.net for legal help.