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Colorado Attorney’s Unusual Effort to Reduce Drunk Driving

Over the years, many groups and people have attempted to reduce the problem of drunk driving, especially among young people. A defense attorney in Colorado Springs, Colorado recently proposed a new effort to reduce drunk driving among high school students. The attorney announced an essay contest (the First Step Scholarship), the winner of which will receive $1,000. Submitted essays must provide a “detailed account” of the student’s “drunk driving mistakes” and include “concrete steps” that the student plans to take to avoid making the same mistakes in the future. To be eligible, the student must be a U.S. citizen or attend school in the U.S. and be attending a school of higher education in the fall of 2015. Applications are due May 1, and the winner will be announced around August 1, 2015.

The defense attorney is the father of a high school senior and has represented many young drivers who have made the mistake of driving drunk. His goal in creating the scholarship was for young people to become more self-aware and educate themselves about the dangers of drunk driving.

Although some people are enthusiastic about the program, this unusual effort has not escaped criticism. A Colorado state trooper cautioned against anything that might create an incentive for underage drinking and suggested requiring applicants to attend a Mothers Against Drunk Driving panel as well as including follow-up measures to ensure that the winner of the scholarship complies with his or her plan.

Among the proponents of the scholarship is a state representative from Colorado Springs who has twice tried unsuccessfully to pass legislation in Colorado which would make some DUI charges felonies for certain repeat offenders. Colorado remains one of only four states that does not include a felony charge for certain DUIs. The other states are Pennsylvania, Maryland and Maine, as well as the District of Columbia. The most recent attempt was in May of 2014, and the failed bill would have created a felony charge for a third DUI within five years or a fourth within 15 years.

North Carolina does include felony punishments for certain repeat DWI offenders. In North Carolina, a person convicted of the offense of habitual impaired driving is punished as a class F felon. G.S. 20-138.5 states that

(a)    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.

(b)    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.

(c)    An offense under this section is an implied consent offense subject to the provisions of G.S. 20-16.2. The provisions of G.S. 20-139.1 shall apply to an offense committed under this section.

(d)   A person convicted under this section shall have his license permanently revoked.

(e)    If a person is convicted under this section, the motor vehicle that was driven by the defendant at the time the defendant committed the offense of impaired driving becomes property subject to forfeiture in accordance with the procedure set out in G.S. 20-28.2. 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.

The North Carolina legislature first passed a habitual impaired driving law in 1989. At that time, a person was punished as a class J felon for their fourth DWI within seven years. Over the years, the punishment level rose to a class F felon, and in 2006, the legislature amended the habitual impaired driving statute to punish as a felon a person receiving their fourth DWI within ten years, instead of seven.

Since then, some members of the North Carolina legislature have sought to make the habitual impaired driving law even tougher. In 2013, the House passed two bills, one of which would have created a felony punishment for a third DWI within 10 years and the other of which would have allowed a habitual impaired driving charge to be filed against anyone with a prior habitual impaired driving conviction, no matter how long ago the previous habitual impaired driving conviction. These bills were not passed by the Senate.

The current North Carolina habitual impaired driving offense differs from the failed bill in Colorado. The Colorado bill sought to create a felony punishment for the third DUI within five years or the fourth DUI within 15 years. The current North Carolina law creates a felony punishment for the fourth DWI within 10 years.

Some defendants convicted of  habitual impaired driving in North Carolina have challenged the statute as violating the Double Jeopardy Clause of the U.S. Constitution which prohibits “multiple punishments for the same offense.” The North Carolina Court of Appeals has disagreed with this argument on multiple occasions, including the 2001 case State v. Vardiman. In Vardiman, the court stated that

It is … well settled that recidivist statutes, or repeat-offender statutes, survive constitutional challenges in regard to double jeopardy challenges because they increase the severity of the punishment for the crime being prosecuted; they do not punish a previous crime a second time.

Unlike some other recidivist statutes, the habitual impaired driving statute creates a substantive offense, the elements of which include previous convictions. However, it “does not impose punishment for [these] previous crimes, [it] imposes an enhanced punishment” for the most recent offense. The court reasoned that “the habitual driving while impaired statute does not violate the prohibition on double jeopardy, because it enhances punishment for present conduct rather than repunishing for past conduct.”

If you have been convicted of impaired driving, visit www.rflaw.net for legal help.

 

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