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Gross Impairment Discussed in Court of Appeals DWI Case

Yesterday, the North Carolina Court of Appeals issued an opinion in the case State v. Roberts, a DWI case which dealt, in part, with the aggravating sentencing factor of a blood alcohol content of 0.15 or more. The defendant argued that the statutory provision stating that the chemical results presented at trial are conclusively sufficient to prove a person’s BAC for the purpose of establishing this factor created an unconstitutional mandatory presumption. The court concluded that the defendant lacked standing to make this argument because the judge did not instruct the jury on this statutory presumption. The defendant also argued that a double jeopardy violation occurred when the court used the defendant’s breath test both to establish the factual basis of the defendant’s plea and to support the aggravating factor which was used to enhance the defendant’s sentence. The court rejected this argument reasoning that the defendant was not punished twice but received a more severe punishment for the underlying substantive offense.

In Roberts, a man saw the defendant walking in a Harris Teeter parking lot and observed that he was unsteady and had trouble finding his car. The man approached the defendant to see if he needed help but the defendant did not acknowledge him. The man then tried to prevent the defendant from getting in his car and driving way. At this time, the man flagged down a trooper who was driving through the parking lot. While the man talked with the trooper, the defendant placed a bag in his car and walked away. The trooper waited to see if the defendant would return, and thirty minutes later, the trooper saw the defendant get in his car and drive away. As the defendant drove, the trooper observed him cross the fog line twice and run a red light, so the trooper stopped the defendant and subsequently arrested him for dwi.

The trooper took the defendant to the jail where, about an hour and a half later, the defendant submitted to three breath tests. The results showed that the defendant’s BAC was 0.19.

At trial, the jury found the defendant guilty of DWI and also found the existence of the aggravating factor in G.S. 20-179(d)(1). G.S. 20-179(d)(1) states that a more severe punishment may be imposed if the jury finds the existence of

Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

The defendant argued that the portion of the statute which makes the results of chemical analysis “conclusive” for purposes of determining gross impairment and therefore imposing a more severe punishment violated “his federal and state constitutional rights not to be deprived of liberty without due process of law and to have the existence of an aggravating factor proven beyond a reasonable doubt.”

However, the court noted that the judge did not include the objectionable statutory language regarding the “conclusive” presumption given to the results of the chemical analysis in the jury instructions. Instead, the jury instructions stated that

when a defendant denies the existence of an aggravating factor, he is not required to prove that the aggravating factor does not exist. It is presumed that the aggravating factor does not exist. The State must prove to you beyond a reasonable doubt that the aggravating factor exists.

The judge also instructed the jury regarding the testing procedures and test results that “you are the sole judges of the credibility and weight to be given to any evidence, and you must determine the importance of this evidence in light of all other believable evidence.” The jury instructions also included the following:

The defendant having pled guilty to Driving While Impaired, you must now consider the following question: Do you find from the evidence beyond a reasonable doubt the existence of the following aggravating factor?

The defendant had an alcohol concentration of .15 or more at the time of the offense or within a relevant time of the driving involved in this offense.

If you find from the evidence beyond a reasonable doubt that the aggravating factor exists, then you will write “yes” in the space after the aggravating factor on the verdict sheet. If you have found the existence of the aggravating factor and have written “yes” in the space after the aggravating factor, then you will also answer Issue One “yes” and write “yes” in the space after Issue One on the verdict sheet.

Therefore, the court concluded that because there was no evidence that the jury’s verdict was affected by the allegedly unconstitutional statutory provision, the defendant lacked standing to challenge the constitutionality of the provision.

The defendant also argued that the use of the breath results for both establishing the factual basis of the defendant’s plea and supporting the aggravating factor which was used to enhance the defendant’s sentence violated the double jeopardy clause. The court noted that “the double jeopardy clause protects criminal defendants against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” However, instead of being punished twice, the defendant was “subjected to a more severe punishment for an underlying substantive offense based upon the fact that his blood alcohol level was higher than that needed to support his conviction for that offense.” Therefore, the defendant was not entitled to relief for a double jeopardy violation.

Today’s post touches on only a couple of the many arguments that the defendant in Roberts made. Look for more on this case tomorrow.

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