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New DWI Sentence Laws Take Effect in North Carolina

Yesterday, several new laws became effective in North Carolina. Among those new laws is a law that makes it easier to determine whether a person convicted of DWI will serve time in jail or in prison. The new law, S.L. 2014-100, applies to sentences for misdemeanor impaired driving which are imposed on or after January 1, 2015. If a person is sentenced to imprisonment after being convicted of misdemeanor impaired driving after January 1, 2015, then that person will serve the sentence in a jail (or a “local confinement facility”) rather than a prison no matter the length of the sentence.

Before the new law, we had to start our analysis with G.S. 20-176(c1), which stated that

Notwithstanding any other provision of law, no person convicted of a misdemeanor for the violation of any provision of this Chapter except G.S. 20-28(a) and (b), G.S. 20-141(j), G.S. 20-141.3(b) and (c), G.S. 20-141.4, or a second or subsequent conviction of G.S. 20-138.1 shall be imprisoned in the State prison system unless the person previously has been imprisoned in a local confinement facility, as defined by G.S. 153A-217(5), for a violation of this Chapter.

So under the old law, a person convicted under the impaired driving statute (G.S. 20-138.1) would serve his term of imprisonment in a jail unless (1) it was a “second or subsequent conviction of G.S. 20-138.1” or (2) he had “previously been imprisoned in a local confinement facility.” If either of these exceptions apply, then we look to G.S. 15A-1352 for where that person should be confined. The applicable portions of this statute were contained in subsections (a) and (e) as follows:

(a)    A person sentenced to imprisonment for a misdemeanor under this Article or for nonpayment of a fine under Article 84 of this Chapter shall be committed for the term designated by the court to the custody of the Division of Adult Correction of the Department of Public Safety or to a local confinement facility. If the sentence imposed for a misdemeanor is for a period of 90 days or less, the commitment must be to a facility other than one maintained by the Division of Adult Correction of the Department of Public Safety, except as provided in G.S. 148-32.1(b). If the sentence or sentences imposed require confinement for more than 180 days, the commitment must be to the custody of the Division of Adult Correction of the Department of Public Safety.

If a person is sentenced to imprisonment for a misdemeanor under this Article or for nonpayment of a fine under Article 84 of this Chapter, the sentencing judge shall make a finding of fact as to whether the person would be suitable for placement in a county satellite jail/work release unit operated pursuant to G.S. 153A-230.3. If the sentencing judge makes a finding of fact that the person would be suitable for placement in a county satellite jail/work release unit and the person meets the requirements listed in G.S. 153A-230.3(a)(1), then the custodian of the local confinement facility may transfer the misdemeanant to a county satellite jail/work release unit.

(e)    A person sentenced for a misdemeanor who has a sentence imposed that requires confinement for a period of more than 90 days and up to 180 days, except for those serving sentences for an impaired driving offense under G.S. 20-138.1 under this Article or for nonpayment of a fine under Article 84 of this Chapter, shall be committed for the term designated by the court to confinement pursuant to the Statewide Misdemeanant Confinement Program established by G.S. 148-32.1.

Although these provisions are somewhat confusing, they appear to require a person convicted of a second or subsequent DWI who is sentenced to less than 90 days to serve his time in a jail. If the sentence is between 90 and 180 days, then the judge has discretion to determine the place of confinement. And if the sentence is greater than 180 days, the sentence must be served in a Division of Adult Correction facility.

There is yet another applicable statutory provision under the old law’s analysis. G.S. 15A-1351(a) governs imprisonment as a condition of special probation. Under the old statute, if the term of imprisonment was noncontinuous, the place of confinement was required to be “a designated local confinement or treatment facility.” If the term of imprisonment was continuous, the judge had discretion to determine the place of confinement as either a DAC facility or a local confinement facility.

So what did the new law do? First, it repealed G.S. 20-176(c1). It also amended G.S. 15A-1352 to amend subsection (a), delete subsection (e), and add a new subsection (f), which provides that

A person sentenced to imprisonment of any duration for impaired driving under G.S. 20-138.1, other than imprisonment required as a condition of special probation under G.S. 15A-1351(a) or G.S. 15A-1344(e), shall be committed to the Statewide Misdemeanant Confinement Program established under G.S. 148-32.1.

Therefore, a person convicted of misdemeanor impaired driving and sentenced to imprisonment (other than imprisonment as a condition of special probation) serves his time in the Statewide Misdemeanant Confinement Program. The SMCP is a program that finds available spaces in local confinement facilities for misdemeanants. This means that a person convicted of DWI will serve his time in a jail (though perhaps not his local jail), regardless of the length of the sentence.

The new law also amended G.S. 15A-1351(a), which governed imprisonment as a condition of special probation. Under the amended provision, it no longer is relevant whether the term of imprisonment is continuous or non-continuous. In either situation, the term of imprisonment must be served at a local confinement or treatment facility.

If you have been arrested for DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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