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Asheville Activist Advocates for Felony Punishment for DWI With Child in Car

A Mothers Against Drunk Driving activist in Asheville is advocating for harsher penalties for those convicted of DWI while driving with a child in their car. Although people who are charged with impaired driving while driving with a child in their car are also often charged with misdemeanor child abuse, the activist argues that this DWI crime should be punished as a felony instead of a misdemeanor. The District Attorney in Asheville noted that driving with a child in the car is considered a grossly aggravating factor in the sentencing of a DWI, but also said that he would be open to the possibility of lobbying for changing the crime to a felony. Statistics from the Centers for Disease Control and Prevention show that of the 200 children under the age of 15 who died in car accidents in 2013, more than half of those children were riding with an impaired driver.

As noted in the article, currently driving with a child in the car is considered a grossly aggravating factor determining the sentence for a person convicted of DWI. After a person is convicted of DWI in North Carolina, North Carolina statute requires that his sentence be determined by the balancing of grossly aggravating factors, aggravating factors, and mitigating factors. G.S. 20-179(c) states that “[a]t the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case.”

Subdivision (4) of G.S. 20-179(c) goes on to define one of the grossly aggravating factors as:

Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

The top three of the six sentencing levels for DWI offense are imposed only when the judge or jury finds there there is one or more grossly aggravating factors. The judge must impose a Level One punishment if the grossly aggravating factor in subdivision (4) (driving with a minor in the car) is found or if two other grossly aggravating factors are found. Therefore, any person convicted of DWI who was driving with a minor in the car at the time of the violation will face a Level One punishment at the minimum, regardless of the person’s prior record or the presence of other aggravating or mitigating factors. Under subsection (g), Level One punishment is a fine of up to $4,000 and a term of imprisonment between 30 days and 24 months.  The sentence may be suspended only if the defendant serves 30 days in prison.  The judge may reduce the term served to 10 days if the defendant is subject to an alcohol monitoring system for at least 120 days, as well as goes to substance abuse treatment.

By contrast, a person who is convicted of DWI with no aggravating or mitigating factors present or with aggravating and mitigating factors that substantially balance each other would receive a Level Four punishment. Under subsection (j), a Level Four punishment is a fine of up to $500 and a term of imprisonment between 24 hours and 60 days. The sentence may be suspended if the defendant serves 48 hours in prison or performs 48 hours of community service.

These provisions were different prior to 2011 when the North Carolina legislature passed Laura’s Law. Before Laura’s Law was passed, the highest level of punishment was a Level One punishment, and Laura’s Law created the Aggravated Level One punishment. A judge is now required to impose an Aggravated Level One punishment when three or more grossly aggravating factors are found. Under subsection (f3), Aggravated Level One punishment is a fine of up to $10,000 and a term of imprisonment between 12 months and 36 months.  The sentence may be suspended only if the defendant serves 120 days in prison and is subject to an alcohol monitoring system for at least 120 days, as well as goes to substance abuse treatment.

Currently, the only felony impaired driving offense is habitual impaired driving. 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.

A person punished for habitual impaired driving will receive a harsher sentence than someone convicted of a typical driving while impaired violation. G.S. 20-138.5 provides that a person convicted under the habitual impaired driving statute is to 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.” G.S. 20-138.5(d) states that “[a] person convicted under this section shall have his license permanently revoked.”

Also, G.S. 20-138.5(e) provides that the vehicle driven at the time of the offense becomes “property subject to forfeiture in accordance with the procedure set out in G.S. 20-28.2.” However,

In applying the procedure set out in that statute, an owner or a holder of a security interest is considered an innocent party with respect to a motor vehicle subject to forfeiture under this subsection if any of the following applies:

(1)    The owner or holder of the security interest did not know and had no reason to know that the defendant had been convicted within the previous seven years of three or more offenses involving impaired driving.

(2)    The defendant drove the motor vehicle without the consent of the owner or the holder of the security interest.

If you have been arrested for DWI, it is important to contact a lawyer as soon as possible.  Visit www.rflaw.net to get legal help.

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