Charlotte, NC Law Firm
704-714-1450
FREE CONSULTATION 24/7
Looking for a Charlotte DWI Lawyer Near You?
Call Today!
dwi-dui-sign

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e.     A repealed or superseded offense substantially similar to impaired driving, including offenses under former G.S. 20-138 or G.S. 20-139.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

If you have been arrested for dwi, it is important to contact a lawyer as soon as possible.  Visit www.rflaw.net to get legal help.

 

Additional DWI Articles

April 27, 2021
Injured By a Drunk Driver – Who Can I Sue?

While drunk driving accidents have been on the decline in the past few years, drunk driving is still a major problem in the United States and a leading cause of car accidents. The most recent statistics released by the National Highway Traffic Safety Administration show that approximately 28 people die in car accidents every day […]

July 28, 2020
Wined and Fined: Good Samaritan Charged with DWI

I. You Will Need a Lawyer Just because someone has had drinks, does notautomatically mean that the law should rest on their shoulders and result in an automatic conviction. That is partly why, under North Carolina law, a series of safeguards have been adopted. These safeguards often rely on, and are helpfully followed, by experienced […]

July 16, 2020
Drinking While Working: Can Workplace Culture Lead to Company Liability?

I. Working While Impaired It is a sobering crisis. We cannot say for sure just exactly how many people drink during work hours, and then drive a vehicle within a short period of time after leaving the restaurant or bar. Often, it requires help from a car accident attorney to see if this drinking is […]

May 13, 2020
Talking PC: Probable Cause and Flawed Police DWI Arrest

I. PC for DWI An experienced Charlotte criminal trial attorney is aware of the unique place that DWI charges can play in North Carolina courts. There’s no doubt that the public generally supports crackdowns on DWI offenses in North Carolina. But here’s the news flash: as important as DWI is, to maintaining public safety, it’s […]

linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram