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Aiding and Abetting DWI in North Carolina

The North Carolina DWI statute G.S. 20-138.1(a) states that

A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:

(1)     While under the influence of an impairing substance; or

(2)     After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or

(3)     With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.

It is easy to imagine an impaired driver of a vehicle to be in violation of this statute.  But it is also possible to be in violation of this statute without ever driving a car under the theory of aiding and abetting.  “Under our statute, G.S. § 20-138, the unlawful operation of a motor vehicle upon a public highway while under the influence of intoxicating liquor is a misdemeanor and all who participate in the commission of a misdemeanor, as aiders and abettors or otherwise, are guilty as principals.” (State v. Gibbs 1947)

To be found guilty of aiding and abetting, a jury must find

(1) that the crime was committed by another; (2) that the defendant knowingly advised, instigated, encouraged, procured, or aided the other person; and (3) that the defendant's actions or statements caused or contributed to the commission of the crime by the other person.  (State v. Bond 1936)

What acts constitute aiding and abetting a dwi in North Carolina?  There is not much recent case law on this point.  Looking at some of the older cases dealing with this issue, it is clear that an owner who hands over the keys to his car to a person he knows to be impaired and then proceeds to ride as a passenger with the impaired driver is guilty of aiding and abetting DWI.

In State v. Gibbs, the owner was riding with the impaired driver as a passenger.  The court reasoned that the owner had the right to permit or forbid the use of his truck by the driver.  Furthermore, the owner had travelled at least 30 miles with the driver, which the courts reasoned was sufficient time for the owner to “discover [the driver’s] condition and forbid his operation of the vehicle.”  The court held that “[w]hen an owner places his motor vehicle in the hands of an intoxicated driver, sits by his side, and permits him, without protest, to operate the vehicle on a public highway, while in a state of intoxication, he is as guilty as the man at the wheel.”

The court in Gibbs distinguished the case State v. Creech (1936) in which the owner/passenger of the car was so drunk that the driver thought he was asleep.  In Creech, the court held that “mere ownership of the car is not sufficient to fix the owner with liability for the negligent acts of the driver” and stressed that the owner needed to have knowledge of the driver’s impaired condition.  The court held that “[t]his knowledge is not shown by the mere fact that the [owner] owned the car and was in it at the time, since the undisputed evidence… tends to show that [the owner] was too drunk to be conscious of what was going on.”

In finding that the owner did not aid and abet DWI, the court in Creech distinguished the facts from those in the 1925 case State v. Trott.  The Creech court emphasized the importance in that case that the owner of the car and the impaired driver had been drinking together and that the owner directed the driver to drive the car.

When we look directly at the court’s analysis in Trott, we find that the owner raised the same argument as in Creech, namely that he was too drunk to realize what was going on.  The court in Trott noted that at the time the driver began driving the car the owner was aware enough to direct the driver to drive.  It distinguished the timing of the severe impairment.  Because the owner knew what was happening when the driver started driving the car, it didn’t matter that he subsequently fell asleep.  However, if he had been severely impaired and asleep at the time the driver started driving the car, he would not have had the knowledge required for aiding and abetting.

What if he had been asleep when the driver started driving, but then subsequently woke up?  Would his later knowledge be adequate for aiding and abetting?  If we extend the court’s reasoning in Gibbs, it seems that if the owner and driver drove for at least 30 miles, that would provide sufficient time for the owner to “discover [the driver’s] condition and forbid his operation of the vehicle.”

Another slightly more recent case, State v. Whitaker (1979) involved an owner who was driving and stopped his car to let the impaired driver drive.  The impaired driver subsequently hit and killed a pedestrian.  The owner testified that he had seen the driver drink three drinks but claimed to not know of his impairment, although later tests indicated that he was severely impaired.  The court followed the reasoning in Gibbs and held “that when a death results from the operation of a motor vehicle by an intoxicated person not the owner of that vehicle, the owner who is present in the vehicle and who with his knowledge and consent permits the intoxicated driver to operate the vehicle, is as guilty as the intoxicated driver.”

There are clear examples of case law which find that an owner with knowledge of the driver’s impaired condition who then gives the driver the keys and rides with him is guilty of aiding and abetting DWI.  What happens if the owner has knowledge of the driver’s impaired condition and gives the driver the keys but does not ride with him?  Is he guilty of aiding and abetting DWI?

There don’t seem to be any North Carolina cases that directly address this issue.  However, cases dealing with aiding and abetting other crimes have stated that a person does not have to be present at the crime to aid and abet.  (State v. Bond 1996)  Furthermore, the cases dealing with aiding and abetting DWI stress the owner’s knowledge of the driver’s impairment.  The presence of the owner only seems to be important when it gives the owner time to observe the driver’s impaired state and come to gain that important knowledge of his impairment.  Therefore, it seems that a person could be guilty of aiding and abetting DWI without riding as a passenger with the impaired driver.

What about the situation where someone fails to stop his friend who he knows to be impaired from driving her own car?  The North Carolina Court of Appeals addressed this in the 2001 civil case Smith v. Winn-Dixie Charlotte, Inc.  In that case, some friends had consumed beer together over a short period of time and did not stop the impaired driver from driving.  The court held that the friends did not aid and abet the driver’s DWI.  In doing so, the court reasoned that “[a] party aids and abets another when he is "present, actually or constructively, with the intent to aid the perpetrators in the commission of the offense should his assistance become necessary and ... such intent was communicated to the actual perpetrators."”  Furthermore, “"[t]he mere presence of [a party] at the scene of the crime, even though he is in sympathy with the criminal act and does nothing to prevent its commission, does not make him guilty of the offense."”

How is someone found guilty of aiding and abetting DWI punished?  This is addressed by North Carolina statute G.S. 20-179(f1) which states

Notwithstanding any other provisions of this section, a person convicted of impaired driving under G.S. 20-138.1 under the common law concept of aiding and abetting is subject to Level Five punishment. The judge need not make any findings of grossly aggravating, aggravating, or mitigating factors in such cases.

Level Five punishment includes a fine of up to $200 and a term of imprisonment between 24 hours and 60 days.  The term of imprisonment may be suspended if the defendant serves a sentence of at least 24 hours or performs at least 24 hours of community service.

If you have been charged with a DWI, it is important to contact a lawyer as soon as possible; visit to get legal help.

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