As of yesterday, the woman arrested last Thursday afternoon for drunk driving in York County was still in jail. The woman initially stopped her car at a stranger’s house to ask about a car she wanted to look at. During the conversation, the stranger suspected that the woman was drunk and called the police after noticing that the woman had two children with her. The stranger told the police that she saw a 9-year-old driving the car as they left the property. The police later stopped the car on suspicion of drunk driving when the woman was pulling out of another driveway just down the street from the stranger’s house. When the police stopped the car, they found the woman’s 2-year-old son sitting on her lap, along with the 9-year-old in the car. The police report indicated that the woman failed a field sobriety test and refused to submit to a breath test. The woman was charged with her third DUI offense, driving without a license, two counts of child neglect and letting an unauthorized person drive the car. Although this incident occurred in South Carolina, we’re going to look at the legal analysis of DWI law as if these facts had occurred in North Carolina.
First, let’s look at the initial traffic stop. The Fourth Amendment protects us against unreasonable searches and seizures, and the US Supreme Court has held that a “traffic stop is a seizure "even though the purpose of the stop is limited and the resulting detention quite brief."” In order to make a traffic stop, an officer must have "reasonable, articulable suspicion that criminal activity is afoot." This is a less demanding standard than probable cause and “is satisfied by “‘some minimal level of objective justification.’””
The reported facts do not give us any indication of reasonable suspicion for the stop of the woman other than the phone call made to police by the stranger who suspected that the woman was drunk. Can this phone call provide the reasonable suspicion required to make the initial traffic stop of the woman? Under the US Supreme Court’s recent ruling in Navarette v. California, it is possible for an anonymous reliable tip containing specific behavior and identifying information to provide reasonable suspicion to stop someone for impaired driving. In Navarette, the anonymous tip reported that a truck had run her off the road and gave information regarding the truck’s location, description and license plate number. However, the Court stated that a 911 call reporting a “conclusory allegation of drunk or reckless driving” would not provide reasonable suspicion to justify a traffic stop.
We don’t know exactly what the stranger reported in her call to the police. The news report states that the stranger suspected that the woman was drunk and that the stranger reported seeing the 9-year-old driving the car as they left the property. Under Navarette, the stranger should have identified specific behavior such as the woman having slurred speech or stumbling, as opposed to a conclusory allegation that the woman was drunk, in order to provide reasonable suspicion to make a traffic stop for impaired driving. The stranger also should have provided sufficient identifying information regarding the woman’s car and location.
Next, let’s look at the woman’s refusal of the breath test. North Carolina operates under the theory of implied consent, contained in G.S. 20-16.2(a), which states that
Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.
Notwithstanding this implied consent, a person may refuse to submit to a breath or blood test. However, this refusal comes with serious consequences. G.S. 20-16.2(a) goes on to provide that
Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.
Therefore, the woman’s refusal of a breath test in North Carolina would result in an automatic revocation of her driver’s license for one year, and she would not be able to apply for limited driving privileges until 6 months after the initial revocation under G.S. 20-16.2(e1).
Now, let’s look at the sentencing required under these facts. In North Carolina, DWI sentencing is set out in G.S. 20-179. After a defendant is convicted of DWI, the judge holds a sentencing hearing. At the sentencing hearing, the judge determines if there are any grossly aggravating factors, any aggravating factors, and any mitigating factors. G.S. 20-179(c) states that grossly aggravating factors are:
(1) 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.
(2) Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
(3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(4) Driving 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.
Reviewing the reported facts, we see that the woman was driving with two children under the age of 18 years in the car, and therefore the grossly aggravating factor in subdivision (4) is present. It was reported that the arrest is the woman’s third DWI, but we don’t know when the previous two occurred. If they were both within seven years, they would each count as a grossly aggravating factor. And finally, it was also reported that the woman was charged with driving without a license. In North Carolina, if she did not have a valid license at the time of the arrest because it was revoked as a result of impaired driving, then this would count as a separate grossly aggravating factor. So our final tally shows that the woman had at least one, and as many as four, grossly aggravating factors present.
If three or more grossly aggravating factors apply, then the judge must impose the Aggravated Level One Punishment. Under subsection (f3), Aggravated Level One Punishment is a fine of up to $10,000 and a term of imprisonment between 12 months and 36 months. The sentence may be suspended only if the defendant serves 120 days in prison and is subject to an alcohol monitoring system for at least 120 days, as well as goes to substance abuse treatment.
If there are two grossly aggravating factors found or if the grossly aggravating factors in subdivision (4) of the subsection applies, then the judge must impose Level One Punishment. Under subsection (g), 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.
Finally, let’s look at the fact of the 9-year-old driving the car. Nine-year-olds are not permitted to drive, even with learner’s permits, in North Carolina. However, what if the child was 14 with a valid learner’s permit, instead of 9, and instead of the woman driving at the time of the stop, the 14-year-old was driving? In North Carolina, a 14-year-old may obtain a provisional learner’s permit which allows them to drive under certain restrictions, including the requirement that “[a] supervising driver must be seated beside the permit holder in the front seat of the vehicle when it is in motion.” However, the 14-year-old cannot serve as the designated driver for an impaired supervising driver because G.S. 20-12.1 states that
(a) It is unlawful for a person to serve as a supervising driver under G.S. 20-7(l) or G.S. 20-11 or as an approved instructor under G.S. 20-7(m) in any of the following circumstances:
(1) While under the influence of an impairing substance.
(2) After having consumed sufficient alcohol to have, at any relevant time after the driving, an alcohol concentration of 0.08 or more.
(b) An offense under this section is an implied-consent offense under G.S. 20-16.2.
Therefore, even if the child had been five years older and had been driving instead of the woman, the woman, if impaired, would have still been in violation of North Carolina law.
If you have been charged with DWI, visit www.rflaw.net for legal help.