The Charlotte Observer reports that a man involved in a “fiery head-on wreck” earlier this month had consumed up to 20 beers before getting into his car prior to the collision. On February 7, the man’s Suburban crossed the median and collided head-on with a pickup truck. The Suburban burst into flames as a result of the accident. The drivers both suffered serious, but non-life-threatening, injuries from the crash. The man told police that he drank between 17 and 20 beers before the accident.
This was not the man’s first encounter with accidents or impaired driving. In 2013, his license was revoked as a result of a fatal car accident. Last year, in connection with that accident, he was found guilty of misdemeanor death by vehicle and placed on two years probation, and at the time of the most recent accident, the man’s license was revoked. Records show that since 1996, the man has been found guilty three times of impaired driving. How would these facts affect his sentencing for this most recent offense?
North Carolina G.S. 20-179 designates certain mitigating, aggravating and grossly aggravating factors. One grossly aggravating factor is
A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor.
Looking at the man’s history described in the Charlotte Observer article, the man has convicted of DWI three times since 1996, but we do not know when these convictions occurred. Most likely, the first was in 1996, and this conviction would have occurred before the seven year period prior to the date of the February 2015 offense. If the second and third offenses were within the seven year period prior to the February 2015 offense, the man would have two grossly aggravating factors as a result of these prior convictions.
In addition to prior convictions, the statute also provides that another grossly aggravating factor is
Driving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
The Charlotte Observer article states that the man’s driver’s license was revoked at the time of the February 2015 offense and had been revoked since the 2013 accident which led to his conviction of misdemeanor death by vehicle. However, the DWI statute requires that the revocation be “an impaired driving revocation.” If the man’s license was revoked solely as the result of the misdemeanor death by vehicle conviction, this would not qualify as a grossly aggravating factor.
One more grossly aggravating factor set out by the statute is
Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
The Charlotte Observer article states that both the man and the other driver involved in the accident suffered serious injuries, so this grossly aggravating factor may be present.
When we total up the grossly aggravating factors in this case, we find that we have one from the serious injury caused and up to two more for the prior DWI convictions. The DWI sentencing statute provides that if one grossly aggravating factor is found, a Level Two sentence must be imposed. If two are found, a Level One sentence must be imposed. And if three are found, an Aggravated Level One sentence must be imposed.
The punishments vary greatly between an Aggravated Level One, Level One and Level Two punishments. Under subsection (f3), an 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.
Under subsection (g), a 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.
Under subsection (h), a Level Two punishment includes a fine of up to $2,000 and a term of imprisonment between 7 days and 12 months. A person sentenced to a Level Two punishment can avoid jail time by abstaining “from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system.”
What about the man as a potential habitual DWI offender? 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.
A person convicted of habitual DWI is punished as a Class F felon and “sentenced to a minimum active term of not less than 12 months of imprisonment, which shall not be suspended.”
According to the article, the man has been convicted of DWI three previous times since 1996. However, to meet the requirements of the habitual DWI statute, the three previous impaired driving offenses would have had to be within the past 10 years, or since 2005. It is not clear from the article when the prior offense occurred, but it is likely that the earliest offense was around 1996. If so, then the man would not meet the requirements of the habitual DWI statute.
If you have been charged with DWI, visit www.rflaw.net for legal help.