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Habitual Impaired Driving in North Carolina

A person who has committed three impaired driving offenses and commits a fourth within 10 years violates the North Carolina habitual impaired driving statute. G.S. 20-138.5(a) 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.

G.S. 20-4.01(24a) defines offenses involving impaired driving as

Any of the following offenses:

a.     Impaired driving under G.S. 20-138.1.

b.     Any offense set forth under G.S. 20-141.4 when conviction is based upon impaired driving or a substantially similar offense under previous law.

c.     First or second degree murder under G.S. 14-17 or involuntary manslaughter under G.S. 14-18 when conviction is based upon impaired driving or a substantially similar offense under previous law.

d.     An offense committed in another jurisdiction which prohibits substantially similar conduct prohibited by the offenses in this subsection.

e.     A repealed or superseded offense substantially similar to impaired driving, including offenses under former G.S. 20-138 or G.S. 20-139.

f.      Impaired driving in a commercial motor vehicle under G.S. 20-138.2, except that convictions of impaired driving under G.S. 20-138.1 and G.S. 20-138.2 arising out of the same transaction shall be considered a single conviction of an offense involving impaired driving for any purpose under this Chapter.

g.     Habitual impaired driving under G.S. 20-138.5.

A conviction under former G.S. 20-140(c) is not an offense involving impaired driving.

It is not required that the previous offenses involving impaired driving have occurred in North Carolina. G.S. 20-4.01(4a) defines a conviction as “[a] conviction for an offense committed in North Carolina or another state” and G.S. 20-4.01(45) defines a state as

A state, territory, or possession of the United States, District of Columbia, Commonwealth of Puerto Rico, a province of Canada, or the Sovereign Nation of the Eastern Band of the Cherokee Indians with tribal lands, as defined in 18 U.S.C. § 1151, located within the boundaries of the State of North Carolina.

Any conviction occurring under US law would afford the defendant rights guaranteed under the U.S. Constitution, but it is possible that a conviction in Canada would not. Although North Carolina courts have not looked at this issue, courts in other jurisdictions have held that for a Canadian conviction to be deemed a prior offense, the conviction cannot have been obtained by denying the defendant rights guaranteed by the U.S. Constitution, such as a trial by jury.

Another issue that arises under the habitual impaired driving statute is double jeopardy. Defendants convicted of habitual impaired driving periodically raise the issue that the statute is unconstitutional because it violates the Double Jeopardy Clause of the U.S. Constitution which prohibits “multiple punishments for the same offense.”

The North Carolina Supreme Court has not taken on a case deciding this issue, but the Court of Appeals has upheld the habitual impaired driving statute 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 also creates a substantive offense, the elements of which include previous convictions. However, “the statute "does not impose punishment for [these] previous crimes, [it] imposes an enhanced punishment" for the latest 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.” Therefore, the court held that “the habitual impaired driving statute does not punish prior convictions a second time, but rather punishes the most recent conviction more severely because of the prior convictions” and was not unconstitutional.

The punishments imposed under the habitual impaired driving statute are significantly harsher than typical driving while impaired violations. G.S. 20-138.5 provides that a person convicted under the habitual impaired driving statute is to 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.” G.S. 20-138.5(d) states that “[a] person convicted under this section shall have his license permanently revoked.”

Also, G.S. 20-138.5(e) provides that the vehicle driven at the time of the offense becomes “property subject to forfeiture in accordance with the procedure set out in G.S. 20-28.2.” However,

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.

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