We’ve discussed the North Carolina state crime lab backlog in previous posts. Because of the backlog, it takes longer and longer to receive the results of a blood draw in a DWI case, which might lead some prosecutors to proceed to trial before receiving the results. If there is sufficient evidence even without the blood results and the defendant believes that his BAC is 0.15 or greater, that defendant might benefit from pleading guilty to impaired driving before the defendant’s blood is tested.
First, at the sentencing hearing, the judge or jury is to determine the existence of any aggravating or mitigating factors, as provided by North Carolina statute. Pursuant to G.S. 20-179(d)(1), one aggravating factor is
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.
G.S. 20-179(a)(2) requires that
the prosecutor shall present all other appropriate grossly aggravating and aggravating factors of which he is aware, and the defendant or his attorney may present all appropriate mitigating factors. In every instance in which a valid chemical analysis is made of the defendant, the prosecutor shall present evidence of the resulting alcohol concentration.
However, if the blood draw has not been tested then there has been no “valid chemical analysis … made of the defendant” and these statutory provisions are not implicated.
In addition, G.S. 20-17.8(a)(1) states that the ignition interlock provision “applies to a person whose license was revoked as a result of a conviction of driving while impaired, G.S. 20-138.1, and ... [t]he person had an alcohol concentration of 0.15 or more.”
Subsections (b) and (c) of G.S. 20-17.8 further explain the ignition interlock requirement:
(b) Ignition Interlock Required. - Except as provided in subsection (l) of this section, when the Division restores the license of a person who is subject to this section, in addition to any other restriction or condition, it shall require the person to agree to and shall indicate on the person's drivers license the following restrictions for the period designated in subsection (c):
(1) A restriction that the person may operate only a vehicle that is equipped with a functioning ignition interlock system of a type approved by the Commissioner. The Commissioner shall not unreasonably withhold approval of an ignition interlock system and shall consult with the Division of Purchase and Contract in the Department of Administration to ensure that potential vendors are not discriminated against.
(2) A requirement that the person personally activate the ignition interlock system before driving the motor vehicle.
(3) An alcohol concentration restriction as follows:
a. If the ignition interlock system is required pursuant only to subdivision (a)(1) of this section, a requirement that the person not drive with an alcohol concentration of 0.04 or greater;
b. If the ignition interlock system is required pursuant to subdivision (a)(2) or (a)(3) of this section, a requirement that the person not drive with an alcohol concentration of greater than 0.00; or
c. If the ignition interlock system is required pursuant to subdivision (a)(1) of this section, and the person has also been convicted, based on the same set of circumstances, of: (i) driving while impaired in a commercial vehicle, G.S. 20-138.2, (ii) driving while less than 21 years old after consuming alcohol or drugs, G.S. 20-138.3, (iii) a violation of G.S. 20-141.4, or (iv) manslaughter or negligent homicide resulting from the operation of a motor vehicle when the offense involved impaired driving, a requirement that the person not drive with an alcohol concentration of greater than 0.00.
(c) Length of Requirement. - The requirements of subsection (b) shall remain in effect for:
(1) One year from the date of restoration if the original revocation period was one year;
(2) Three years from the date of restoration if the original revocation period was four years; or
(3) Seven years from the date of restoration if the original revocation was a permanent revocation.
However, subsection (a) states that “For purposes of subdivision (1) of this subsection, the results of a chemical analysis, as shown by an affidavit or affidavits executed pursuant to G.S. 20-16.2(c1), shall be used by the Division to determine that person's alcohol concentration.” Therefore, much like the gross impairment aggravating factor, this provision is not implicated without “the results of a chemical analysis, as shown by an affidavit or affidavits executed pursuant to G.S. 20-16.2(c1).”
If a defendant enters a guilty plea, the prosecutor should submit a “Case Disposition Notice” to the crime lab. This notice will inform the crime lab that the case has been disposed of and that the blood does not need to be tested.
It is possible that the blood will be tested before the crime lab receives the notice. It is also possible that the notice will not be submitted. In either of these cases, the defendant might not receive the benefit of avoiding the ignition interlock requirement from his guilty plea. When the crime lab tests the blood, they then send an affidavit to the prosecutor and to the DMV. If the DMV receives an affidavit that shows a BAC of 0.15 or greater, it will impose an ignition interlock because G.S. 20-17.8(a)(1) states that “the results of a chemical analysis, as shown by an affidavit or affidavits executed pursuant to G.S. 20-16.2(c1), shall be used by the Division to determine that person's alcohol concentration.”
If you have been charged with impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.