The Charlotte Observer reported that a man from Conover, North Carolina was convicted of habitual driving while impaired and sentenced to at least one year and three months in prison, but not more than two years and three months in prison. The man’s most recent DWI charge, which led to his habitual DWI offender status, occurred in August 2013. The Charlotte Observer reports that he had been previously convicted of DWI in September 2005, November 2006, August 2008, and February 2013, and that each of these previous convictions occurred in Catawba County.
The offense of habitual impaired driving is found in G.S. 20-138.5(a), which 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.
To find out what “offenses involving impaired driving” means, we look at G.S. 20-4.01(24A) which defines them as
Any of the following offenses:
a. Impaired driving under G.S. 20-138.1.
b. Any offense set forth under G.S. 20-141.4 when conviction is based upon impaired driving or a substantially similar offense under previous law.
c. First or second degree murder under G.S. 14-17 or involuntary manslaughter under G.S. 14-18 when conviction is based upon impaired driving or a substantially similar offense under previous law.
d. An offense committed in another jurisdiction which prohibits substantially similar conduct prohibited by the offenses in this subsection.
e. A repealed or superseded offense substantially similar to impaired driving, including offenses under former G.S. 20-138 or G.S. 20-139.
f. Impaired driving in a commercial motor vehicle under G.S. 20-138.2, except that convictions of impaired driving under G.S. 20-138.1 and G.S. 20-138.2 arising out of the same transaction shall be considered a single conviction of an offense involving impaired driving for any purpose under this Chapter.
g. Habitual impaired driving under G.S. 20-138.5.
A conviction under former G.S. 20-140(c) is not an offense involving impaired driving.
The Charlotte Observer article stated that the man had four previous impaired driving convictions ranging from 2005 to 2013. These would meet the definition of “offenses involving impaired driving” under G.S. 20-4.01(24A)(a), and they all took place within 10 years of the date of his most recent offense, which occurred in August 2013.
The offense of habitual impaired driving has a separate punishment from a typical impaired driving offense. If a person is convicted of impaired driving, G.S. 20-179 requires that a sentencing hearing be held to determine whether there are any aggravating or mitigating factors present. Under G.S. 20-179(c)(1), any DWI convictions within 7 years of the date of the most recent offense would count as a “grossly aggravating factor.” Because the man had three prior DWI convictions within this time period, the judge is required to impose the Aggravated Level One punishment.
G.S. 20-179(f3) states that
A defendant subject to Aggravated Level One punishment may be fined up to ten thousand dollars ($10,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 months. Notwithstanding G.S. 15A-1371, a defendant sentenced to a term of imprisonment pursuant to this subsection shall not be eligible for parole. However, the defendant shall be released from the Division of Adult Correction of the Department of Public Safety on the date equivalent to the defendant’s maximum imposed term of imprisonment less four months and shall be supervised by the Section of Prisons of the Division of Adult Correction under and subject to the provisions of Article 84A of Chapter 15A of the General Statutes and shall also be required to abstain from alcohol consumption for the four-month period of supervision as verified by a continuous alcohol monitoring system. For purposes of revocation, violation of the requirement to abstain from alcohol or comply with the use of a continuous alcohol monitoring system shall be deemed a controlling condition under G.S. 15A-1368.4.
The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. If the defendant is placed on probation, the judge shall impose as requirements that the defendant (i) abstain from alcohol consumption for a minimum of 120 days to a maximum of the term of probation, as verified by a continuous alcohol monitoring system pursuant to subsections (h1) and (h3) of this section, and (ii) obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
Clearly, the Aggravated Level One sentencing is quite harsh. However, the punishment for a habitual impaired driver offender can be even harsher under G.S. 20-138.5. Subsection (d) states that “[a] person convicted under this section shall have his license permanently revoked,” and subsection (b) provides 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.”
G.S. 15A-1340.17 sets out the structured sentencing for a Class F felony, which varies depending upon prior convictions and aggravating and mitigating factors found under G.S. 15A-1340.16 (which are separate and different from those found in the DWI sentencing statute).
If you have been charged with habitual impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options