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Child Killed in Accident Caused by Impaired Mother

The Charlotte Observer reports that a woman was arrested early Sunday morning for impaired driving, as well as other charges, after being involved in a car accident which killed her 3-year-old son. Shortly after midnight on Sunday morning, the woman was traveling south on Billy Graham Parkway when she drove off the left side of the road, struck a guardrail and crossed into oncoming traffic. She then collided with a car traveling north on Billy Graham Parkway. At the time of the accident, the woman’s two sons, ages three and seven, were in the woman’s car. Unfortunately, the 3-year-old was pronounced dead at the scene of the accident. The 7-year-old and the driver of the other car were taken to the hospital and are expected to recover. In addition to impaired driving, the woman was also charged with felony death by vehicle, two counts of felony child abuse and reckless driving.

The North Carolina impaired driving statute punishes a person who violates the impaired driving law more severely when that person commits the offense of impaired driving while a child is in the car. After a DWI conviction, the sentence is determined based upon the balancing of grossly aggravating factors, aggravating factors, and mitigating factors. North Carolina statute G.S. 20-179(c) requires 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.”

There are four grossly aggravating factors, and the one included in subdivision (4) of G.S. 20-179(c) is:

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.

Sentences for impaired driving offenses are divided into six sentencing levels. The top three levels are imposed only when the judge or jury finds one or more grossly aggravating factors. The statute requires 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 at least a Level One punishment, regardless of the person’s prior record or the presence of other aggravating or mitigating factors. A Level One punishment under subsection (g) includes 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 convicted of DWI without that minor in the car and with balanced aggravating and mitigating factors would receive a Level Four punishment. A Level Four punishment under subsection (j) includes 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.

Some of the impaired driving punishments were made more severe fairly recently. The North Carolina legislature passed Laura’s Law in 2011 which created the most severe level of punishment, the Aggravated Level One punishment. Prior to Laura’s Law, the highest level of punishment was a Level One punishment. An Aggravated Level One punishment must be imposed if three or more grossly aggravating factors are found and includes a fine of up to $10,000 and a term of imprisonment between 12 months and 36 months.  The sentence may only be suspended 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.

Also in 2011, the legislature passed another law which changed the subsection addressing the grossly aggravating factor of driving with a minor in the car. The previous subsection included only children who were under the age of 16 years. The new law raised the age to include any child under the age of 18 years and also added people who might be biologically older than 18 years but have a mental development of a child under the age of 18 years, as well as people with a physical disability which keeps them from getting out of a vehicle without assistance.

The revised law also changed the weight given to this grossly aggravating factor. Under the previous statute, driving with a minor was weighted as any other grossly aggravating factor. A person convicted of DWI who was driving with a minor in the car at the time of the violation would have faced a Level Two punishment at the minimum. A Level Two punishment under subsection (h) is a fine of up to $2,000 and a term of imprisonment between 7 days and 12 months.  The sentence may be suspended if the defendant serves 7 days in prison or is subject to an alcohol monitoring system for at least 90 days.

After 2011, however, a person who commits an impaired driving offense with a minor in the car must receive at least a Level One punishment. Comparing the two punishments, the Level One punishment has twice the fine limit and the sentencing limit as the Level Two punishment. Furthermore, a Level Two punishment allows a person to avoid jail time altogether by abstaining from alcohol for a period of 90 days as verified by an alcohol monitoring system, while a Level One punishment does not allow this option.

When a person is convicted of impaired driving with more than one child in the car, does each child count as a separate grossly aggravating factors? While G.S. 20-179(c) specifies that each prior impaired driving conviction under subdivision (1) is a separate grossly aggravating factor, subsection (4) does not specify whether driving with multiple minors in the car would create more than one grossly aggravating factor. The lack of specification could be argued to indicate that multiple minors do not create more than one grossly aggravating factor. Furthermore, the statute refers to the subdivision (4) aggravating factor in the singular, stating “[i]f the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies.”

If you have been charged with DWI, visit www.rflaw.net for legal help.

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