Charlotte Personal Injury Lawyer

Mother Charged with DWI After Accident Which Killed Daughter

A mother in New Burn, North Carolina has been charged with DWI after being involved in an accident on Sunday which killed her 9-year-old daughter. The accident occurred around 11:30 a.m. in New Burn after the mother ran off the road, then returned to the road, and crossed the center line into the path of an oncoming car. The 9-year-old girl, who was unrestrained in the car, died at the scene of the accident. The mother was also injured and was taken to the hospital in critical condition. At the hospital, blood was drawn from the mother to be submitted to the state crime lab for analysis. Officials believe that the mother’s impairment was caused by prescription drugs.

This accident is tragic, but it can serve to remind us of a couple of important aspects of dwi law in North Carolina. First, DWI can involve impairment from any “impairing substance,” not just impairment from alcohol. With respect to this weekend’s accident, the district attorney stated that it is believed that the driver’s impairment was due to prescription medication. When people typically think of DWI, they think of subsection (a)(2) of the DWI statute (G.S. 20-138.1) which specifically includes driving with an alcohol concentration of 0.08 or more as impaired driving.

However, subsection (a)(1) contains a more general provision which includes driving “while under the influence of an impairing substance.” An “impairing substance” is defined by G.S. 20-4.01(14a) as “[a]lcohol, controlled substance under Chapter 90 of the General Statutes, any other drug or psychoactive substance capable of impairing a person's physical or mental faculties, or any combination of these substances.” Furthermore, it is not a defense to a charge of DWI that the medication taken was legally prescribed by a doctor.

A person charged with DWI involving prescription medication might argue that he did not know that the medication would cause impairment. In State v. Highsmith (2005), the north carolina Supreme Court addressed this argument in a case where a defendant was charged with DWI after driving home from the dentist. At the dentist, the defendant had been given a pain medication, and during his drive home, the defendant crossed the center line several times. In Highsmith, a pharmaceutical expert testified at trial that the pain medication that the defendant was given at the dentist was “an impairing substance and that a healthcare professional should have warned defendant of its effects.” The Court reasoned that the defendant knew or should have known that this pain medication could impair him and was on notice that if he drove after taking it, he risked “cross[ing] over the line into the territory of proscribed conduct.”

It is also rarely a defense that the resulting impairment was involuntary, as in the driver did not voluntarily become impaired by taking the medication. The defendant in Highsmith also made the argument that his impairment was involuntary. The Court stated that

[I]nvoluntary intoxication is a very rare thing, and can never exist where the person intoxicated knows what he is drinking, and drinks the intoxicant voluntarily, and without being made to do so by force or coercion. . . . [I]t is only when alcohol has been introduced into a person's system without his knowledge or by force majeure that his intoxication will be regarded as involuntary.

Even though the defendant in Highsmith did not know the pain medication was intoxicating, because he took it voluntarily, he was not “forced to consume the medication.” Therefore, he was not involuntarily intoxicated.

The second issue that this weekend’s tragic accident highlights is that driving while impaired with a child under the age of 18 years old is a grossly aggravating factor which will greatly increase the punishment level of the offense. After a person is convicted of DWI in North Carolina, his sentence is determined based upon the balancing of grossly aggravating factors, aggravating factors, and mitigating factors. North Carolina statute G.S. 20-179(c) states that “[a]t the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case.”

One of the grossly aggravating factors set out in the DWI sentencing statute is “[d]riving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.” If this grossly aggravating factor is found to exist in the defendant’s case, the judge is required by statute to impose a Level One punishment. 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.

By contrast, a person convicted of DWI with no aggravating or mitigating factors present or with aggravating and mitigating factors that substantially balance each other would receive a Level Four punishment. A Level Four punishment is a fine of up to $500 and a term of imprisonment between 24 hours and 60 days. The sentence may be suspended if the defendant serves 48 hours in prison or performs 48 hours of community service.

If you have been charged with impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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