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Multiple DWIs is Not Necessarily Habitual DWI

The Raleigh New and Observer reported that a man with four DWI charges was in court again on Monday. The man’s name is Rabah Samara, and his first DWI charge occurred in 2003 when he drove a friend’s car away from an accident which resulted in the death of Stephen Gates, a Tar Heels Sports Network reporter. Stephen Gates was changing his tire on the side of I-40, when the car carrying a drunk Samara and being driven by Samara’s friend struck Gates’ car with enough force to rip the door from its hinges. After the accident, Samara testified that he convinced his friend to pull the car over. Samara then got behind the wheel and drove the car away from the scene of the accident.

Gates was killed as a result of the accident, but because of how the North Carolina statute was written at the time, neither Samara nor his friend was charged with a hit-and-run because Samara was not driving at the time of the accident and his friend did not drive away from the accident. The current North Carolina statute requires passengers, as well as the driver, to remain at the scene of the accident.

Samara’s friend made a deal with the prosecutors in which she pleaded guilty to a charge of failing to report an accident in exchange for providing testimony at Samara’s DWI trial. The conviction following that trial was Samara’s first.

Since then, Samara has accumulated three more DWI charges, one of which was dismissed. The charge which brought him to court on Monday resulted from a checkpoint stop in December 2013, at which he blew a 0.10. He was found guilty and received three years of active probation, a $1000 fine, and 14 days of imprisonment, which he can serve on weekends.

Someone looking at Samara’s history might wonder why he did not receive a stiffer sentence. North Carolina G.S. 20-179 designates certain mitigating, aggravating and grossly aggravating factors. One grossly aggravating factor is

A prior conviction for an offense involving impaired driving if:

a.     The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.     The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c.     The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

G.S. 20-179(c)(1)

G.S. 20-179(c) requires a judge to impose an Aggravated Level I sentence if there are three or more grossly aggravating factors. A judge must impose a Level I sentence if the defendant was driving with a minor in the car or if there are two of the other grossly aggravating factors. A Level II sentence is imposed if the defendant was not driving with a minor in the car and only one of the other grossly aggravating factors applies.

In Samara’s case, although he had three prior charges, one had been dismissed. Samara’s earliest conviction was from the 2003 offense in connection with the Stephen Gates accident, so this was prior to the seven year period before the date of his latest offense. Therefore, the only charge that qualifies as a grossly aggravating factor is his conviction in connection with a March 2013 offense. With only one grossly aggravating factor, the judge was required by North Carolina statute to impose a Level II punishment.

Under subsection (h) of G.S. 20-179, a Level II punishment includes a fine of up to $2000 and a term of imprisonment between 7 days and 12 months. The statute goes on to provide that Samara could have avoided any jail time by abstaining “from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system.” The News and Observer article noted that Samara’s lawyer claimed in court that Samara had not consumed alcohol since December but that this was only verified for the one month that he wore an alcohol monitoring bracelet over the summer since this was as long as Samara could afford the system.

What about Samara as a potential habitual DWI offender? The punishment for a habitual impaired driver offender is found in G.S. 20-138.5. Subsection (d) states that “[a] person convicted under this section shall have his license permanently revoked,” and subsection (b) provides that “[a] person convicted of violating this section shall 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. Sentences imposed under this subsection shall run consecutively with and shall commence at the expiration of any sentence being served.”

G.S. 15A-1340.17 sets out the structured sentencing for a Class F felony, which varies depending upon prior convictions and aggravating and mitigating factors found under G.S. 15A-1340.16 (which are separate and different from those found in the DWI sentencing statute).

However, let’s go back and look at the offense of habitual impaired driving which is found in G.S. 20-138.5(a) and 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.

Samara was convicted of the offense in connection with the 2003 accident and the March 2013. However, Samara did not qualify as a habitual DWI because he had not been convicted of three or more DWI offenses within 10 years of the date of December 2013 offense.

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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