2014 Public Defender & Investigator Conference: DWI SENTENCING. E. Clarke Dummit & V. James Filliben, III Charlotte, NC

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1 2014 Public Defender & Investigator Conference: DWI SENTENCING E. Clarke Dummit & V. James Filliben, III Charlotte, NC

2 Table of Contents 1. SENTENCING GENERALLY SENTENCING IS A SEPARATE HEARING FROM THE DWI TRIAL OR PLEA YOU CAN ASK FOR A SENTENCING HEARING SENTENCING IS BIFURCATED FOR JURY TRIAL NOTICE REQUIREMENT IN SUPERIOR COURT When? 10 days before trial in Superior Court How? implies written since it must be plain and concise statement: Remedy District Court BURDEN OF PROOF Grossly aggravating - beyond a reasonable doubt Aggravating - beyond a reasonable doubt Mitigating - preponderance of the evidence DUTY TO PRESENT ALL AGGRAVATING FACTORS Admissibility of chemical test Later discovery of the factor (unresolved issue) Canceling blood tests (unresolved issue) SENTENCING FACTORS GROSSLY AGGRAVATING FACTORS ( GAF ): (c)(1): A prior conviction (c)(2): DWLR for alcohol (c)(3): Serious injury (c)(4): Passengers under the age of 18 years (or physical disability) AGGRAVATING FACTORS (d)(1): Gross impairment (d)(2): Especially reckless or dangerous driving (d)(3): Negligent driving that led to a reportable accident Page 2

3 (d)(4): Driving while his driver's license was revoked (d)(5): Bad driving record (d)(6): Fleeing to elude (d)(7): Speeding 30 over (d)(8): Passing a stopped school bus (d)(9): Catch-all Aggravators MITIGATING FACTORS (e)(1): Slight impairment (.09) (e)(2): Slight impairment, no test (e)(3): Driving safe and lawful (e)(4): Safe driving record (e)(5): Impairment by lawfully prescribed drug (e)(6): Voluntary submission for assessment (e)(7): Catch-all Mitigators PUNISHMENT BASED UPON FACTORS (F1): AIDER AND ABETTOR PUNISHMENT (F2): LIMIT ON CONSOLIDATION OF JUDGMENTS (F3): AGGRAVATED LEVEL ONE (A1) PUNISHMENT Minimum 12 Months Maybe less if CAM Parole still exists but restricted Alcohol assessment and comply Fined up to $10, (G): LEVEL ONE (1) PUNISHMENT Not less than 30 days active (unless CAM) days if CAM Alcohol assessment and comply Fined up to $4, (H): LEVEL TWO (2) PUNISHMENT Not less than 7 days active (unless CAM) Active time may be reduced to 0 days if CAM Page 3

4 3-5-3 Additional Community Service Alcohol assessment and comply Fined up to $2, (I): LEVEL THREE (3) PUNISHMENT Not less than 72 hours active or Community Service Sentence can be suspended if: Alcohol assessment and comply Fined up to $1, (J): LEVEL FOUR (4) PUNISHMENT Not less than 48 hours active or Community Service Sentence can be suspended if: Alcohol assessment and comply Fined up to $ (K): LEVEL FIVE (5) PUNISHMENT Not less than 24 hours active or Community Service Sentence can be suspended if: Alcohol assessment and comply Fined up to $ CAM CONTINUOUS ALCOHOL MONITORING CREDIT FOR INPATIENT TREATMENT ISSUES IN SENTENCING CONTESTING FACTORS General Issues to review DWLR as aggravating or grossly aggravating Three situations to contest DWLR factor even if no license Prior out of state convictions: Summary Checklist for out of State convictions COLLATERAL CONSEQUENCES (ADDITIONAL PUNISHMENT) Vehicle Forfeiture Periods of suspensions Loss of CDL Commercial Drivers License Page 4

5 4-2-4 Custody: Refusal issues Interlock problems Continuous Alcohol Monitoring The Out of State Client: ETHICS Duty not to harm your client Limited privileges Page 5

6 1. Generally 1-1. is a separate hearing from the DWI trial or plea Under NCGS : While there is technically a separate hearing for sentencing purposes, NCGS (c) allows the evidence at trial to be considered at the sentencing hearing (grossly and aggravating factors are determined based upon the evidence presented at trial and in the [sentencing] hearing. Thus if there is no trial the State is restricted to evidence presented at a Hearing You can ask for a Hearing Under : While this generally only allows the State to be better prepared to add further factors, this is a procedural move for a Defense Attorney, to request in the right circumstances, as a way to postpone the sentencing to allow your client to attend inpatient treatment, or otherwise be in a position to be better prepared to present mitigating factors is bifurcated for jury trial Under NCGS (a1): Because the State must have the jury determine any grossly aggravating or aggravating factors beyond a reasonable doubt, the trial should be bifurcated if the ADA gives you notice of the aggravators Notice requirement in Superior Court The State must give you notice of its intent to introduce (allege) any and all aggravating factors When? 10 days before trial in Superior Court Under NCGS (a1)(1) How? implies written since it must be plain and concise statement: Pursuant to NCGS (a1)(1) notice shall be provided no later than 10 days prior to trial and shall contain a plain and concise factual statement indicating the factor or factors it intends to use under the authority of subsections (c) and (d) of NCGS The notice must list all the aggravating factors that the State seeks to establish Remedy There is not a stated remedy, but the Court should prevent the State from adding any aggravating factors District Court While there is no specific statutory provision dealing with notice in District Court, there are no provisions that give any exemption in District Court either. It would be best practice for the State to allege them prior to arraignment in District Court; however, the fact that the legislature specifically requires notice in Superior Court under (a1)(1) and is silent regarding this requirement for District Court implies that it is not required. As a practical matter, there is concern that if you attempt to force the issues by objecting after a plea and prior to sentencing, the Court would view the remedy as striking the Plea. Thus you would be right back where you started, and the State could add the notice of aggravating factors. Page 6

7 This is a more interesting issue after a trial in District Court. If the State attempts to allege aggravating factors after trial, you may stand a better ground of objecting. However again as a practical matter if the Court refuses, your client will be able to appeal and get a trial de novo. At the de novo hearing the State can again aggravating factors Burden of proof Under (a1)(2) & (o): The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists Grossly aggravating - beyond a reasonable doubt Aggravating - beyond a reasonable doubt Mitigating - preponderance of the evidence 1-6. Duty to present all aggravating factors NCGS (a)(2): The prosecutor does have an affirmative duty to present all factors: Before the hearing the prosecutor shall make all feasible efforts to secure the defendant's full record of traffic convictions, and shall present to the judge that record for consideration in the hearing. Upon request of the defendant, the prosecutor shall furnish the defendant or his attorney a copy of the defendant's record of traffic convictions at a reasonable time prior to the introduction of the record into evidence. In addition, the prosecutor shall present all other appropriate grossly aggravating and aggravating factors of which he is aware, and the defendant or his attorney may present all appropriate mitigating factors Admissibility of chemical test In every instance in which a valid chemical analysis is made of the defendant, the prosecutor shall present evidence of the resulting alcohol concentration. This reference is obvious except that it raises the statutory distinction as to what is a valid as opposed to an admissible test. The DMV believes that a chemical test that is obtained in violation of the constitutional prohibition of detention without Articulable Suspicion is still a valid test for administrative purposes even if it is inadmissible. The DMV regularly draws a distinction between a test which is otherwise valid, but simply suppressed. By the legislature s use of the term valid as opposed to admissible the DMV may have an issue. If you will draft any suppression order artfully it can lend weight to an Order determining that a specific test is invalid as a matter of law, in addition to being inadmissible. This could assist in the future battle with the DMV over a required interlock. This is an open issues. In drafting any order for suppression of a chemical analysis consider the drafting some of the lack of finding from State v. Shuping, 312 N.C. 421 (1984) and State v. Roach, 145 N.C.App. 159 (2001) to help in a later battle with the DMV Later discovery of the factor (unresolved issue) What if the DA becomes aware of an aggravating factor during trial of that she/he wasn t aware of before the trial started? Can the DA introduce that aggravating factor at sentencing? The statute NCGS (a), appears to leave this open in District Court since it is statutorily required Page 7

8 for Superior Court, but there are constitutional concerns under Apprendi and Blakely. It makes more sense to argue that this statute NCGS (a)(2) deals with the prosecutors ethical obligation to present factors rather than somehow allowing the addition of factors later. That is, if they were not known to be present and alleged prior to trial, they cannot be added during or after. If your judge agrees that the constitution applies in District court then Apprendi and Blakely also apply Canceling blood tests (unresolved issue) Some prosecutors read NCGS (a)(2) to mean that they must wait for blood to come back, and they will not allow the case to be pleaded without that potential aggravation factor. As the backlogs grow greater most prosecutors will allow a defendant to proceed without the blood results. But it is not ethically an issues until there is a chemical test result, and thus, in the delayed blood cases (in which there is a blood draw, but no result), the State should be fine proceeding without that result at sentencing, since the blood has not been tested and thus there is no evidence of the resulting alcohol concentration. 2. Factors Review NCGS (c) in full if you have a complex issue. Here is a simple breakdown Grossly Aggravating Factors ( GAF ): (c)(1): A prior conviction See NCGS (c)(1): ) What is a prior conviction? While this would otherwise seem to be a fairly cut and dry issue in most cases where the State introduces a DMV record with a North Carolina DWI conviction on it, there are many instances which are not as cut and dry. 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 NCGS Note because of the wording of the statute, the State will argue that upon remand and before resentencing the conviction counts if you are pleading to a second DWI during this window. Remember that each prior conviction is a separate grossly aggravating factor (c)(2): DWLR for alcohol Page 8

9 Note that this grossly aggravating factor (NCGS (c)(2)) is strictly statutory in its application. The State must prove beyond a reasonable doubt that the defendant at the time of the offense was driving while his driver's license was revoked under NCGS 20-28, and the revocation was an impaired driving revocation under NCGS (a). Note that this is conjunctive! It is not a grossly aggravating factor for your client to be revoked permanently for DWI, as long as the conviction was more than a year before the charged driving in the current offense. Your client only becomes permanently revoked under NCGS 20-19(d). The statute which calls for, and specifically defines (NCGS (c)(2)) the grossly aggravating factor specifies that the revocation only counts if your client is specifically revoked under NCGS (a), which does not include NCGS (c)(3): Serious injury Under NCGS (c)(3): Serious injury to another person caused by the defendant s impaired driving at the time of the offense. There is some debate as to whether injury to more than one person would count as more than one grossly aggravating factor. However, the AOC sentencing form, AOC-CR-311, has only one check box. This implies that only one grossly aggravating factor for serious injury can be found ) State v. Barber, 93 N.C.App. 42 (1989). Automobile accident victims suffering from compressed vertebra, broken leg, and blood clots in lungs as result of collision with defendant had sustained requisite "serious injuries" necessary to enhance defendant's sentence for DWI offense. Recognize that the case law does require that the injuries be serious, and the State prove that they are serious beyond a reasonable doubt. A serious injury can be either a physical injury (causing great pain and suffering ) or can be a serious mental injury. Whether the injury is serious is a question of fact. The judge or jury (depending upon the Court) ultimately decides whether the injury is serious. Relevant factors in making that determination can be, but are not limited to pain and suffering, loss of blood, hospitalization or time lost at work. Courts have found the following to be serious injuries: Gunshot wounds Head injuries (including swelling on the skull and traumatic head injuries) Cuts, punctures and stab wounds (multiple lacerations requiring treatment by specialists, or severe stab wounds where there was a great loss of blood, among other factors) A nostril that had caved in and knocked out teeth Shards of glass in in the arm and shoulder A badly bruised shoulder, coupled with an inability to move for three days and pain and suffering Mental injury where the victim was sexually assaulted for several days with devices intended to degrade and dehumanize. The victim required hospitalization and treatment for depression, suicidal tendencies, among other things. Notably, proving serious injury requires less evidence than proving serious bodily injury. St. v. Hannah, 149 N.C. 713 (2002). If you have a case in which the State may be alleging this grossly aggravating factor, do extensive legal research and look for cases with similar injuries to what the State may be attempting to prove. There are too many fact patterns to cover them here, but there are many cases in North Carolina dealing with serious injury in a criminal context (c)(4): Passengers under the age of 18 years (or physical disability) Before NCGS (c)(4) was amended effective December 1, 2011, a person could only be sentenced at Level One upon a finding of at least two grossly aggravating factors. Not only did the Amendment jump this factor to an automatic level one, but it raised the age from 16 to 18, and expanded the factor to include a person with the mental development of a child under the age of 18 years, and a person with a physical disability preventing unaided exit from the vehicle. Page 9

10 NCGS (c)(4) was amended to require that persons convicted of DWI be sentenced to Level One punishment if the grossly aggravating factor in NCGS (g)(4) exists. If more than one of these types of persons is in the car, it appears that only one grossly aggravating factor applies, so two 17 year olds should not get your client to Level A Aggravating factors Review NCGS (d): (d)(1): Gross impairment NCGS (d)(1): Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court. This is an extremely poorly worded statute indented to take away a District Court Judge s discretion in making findings as to the validity of the test result. Based upon the standard of proof, and upon Apprendi et al, the court still has the full authority to require the State to prove the blood alcohol level beyond a reasonable doubt with admissible evidence (d)(2): Especially reckless or dangerous driving Under NCGS (d)(2): Remember that spinning tires is not reckless driving. Also the State must prove this beyond a reasonable doubt (d)(3): Negligent driving that led to a reportable accident NCGS (d)(3): A reportable accident is defined by (33b). A crash is reportable when it involves a motor vehicle that results in death or injury of a human being or total property damage of $1,000 or more, or property damage of any amount to a vehicle seized pursuant to NCGS Even if your client is in an otherwise reportable accident, there is a good argument that if the damage was only to his own vehicle there is no reporting requirement. The statute is moot on this point, but if the client takes a baseball bat and beats his own car to a pulp there is no need to report this to anyone. Thus it can be argued that damage only to his own vehicle cannot be an aggravating factor (d)(4): Driving while his driver's license was revoked NCGS (d)(4): Make certain this this is not simply NOL (d)(5): Bad driving record This is specially defined in NCGS (d)(5). Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under NCGS or for which the convicted person's license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced (d)(6): Fleeing to elude NCGS (d)(6): Conviction under NCGS of speeding by the defendant while fleeing or attempting to elude apprehension. Page 10

11 (d)(7): Speeding 30 over NCGS (d)(7): Conviction under NCGS of speeding by the defendant by at least 30 miles per hour over the legal limit (d)(8): Passing a stopped school bus NCGS (d)(8): Passing a stopped school bus in violation of NCGS (d)(9): Catch-all Aggravators NCGS (d)(9): Any other factor that aggravates the seriousness of the offense. This provision is what makes notice in District Court appear to be more of an issues. Should the State attempt to add or argue a non-statutory aggravating factor after a defendant s plea, due process should prevent the State from arguing for additional sentencing Mitigating factors (e)(1): Slight impairment (.09) Under NCGS (e)(1): Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving (e)(2): Slight impairment, no test Under NCGS (e)(2): Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant (e)(3): Driving safe and lawful Under NCGS (e)(3): Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties (e)(4): Safe driving record Under NCGS (e)(4): A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under NCGS or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced. Some prosecutors argue that if a defendant does not have a driver s license he/she cannot not have a safe driving record. DO NOT LET THIS SLIDE! Even if you do not need that extra factor in this case, you may in the next. If this cannot count as a mitigating factor, then a bad record under NCGS (d)(5) cannot count as an aggravator if the person does not have a driver s license. That is an absurd outcome. The person has a good or bad record regardless of whether they have a driver s license or not. Fight for it in every case! (e)(5): Impairment by lawfully prescribed drug Under NCGS (e)(5): Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage (e)(6): Voluntary submission for assessment Page 11

12 NCGS (e)(6) and (e)(6a): The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment. NCGS (e)(6a): Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety (e)(7): Catch-all Mitigators Under NCGS (e)(7): Any other factor that mitigates the seriousness of the offense. Many judges will grant a factor if the client has completed the treatment. Some other factors the court could consider are: a military background, current military service, etc. 3. Punishment based upon Factors (f1): Aider and abettor punishment Notwithstanding any other provisions of this section, a person convicted of impaired driving under NCGS , under the common law concept of aiding and abetting is subject to Level Five punishment. The judge need not make any findings of grossly aggravating, aggravating, or mitigating factors in such cases (f2): Limit on Consolidation of Judgments. Except as provided in subsection (f1), in each charge of impaired driving for which there is a conviction the judge shall determine if the sentencing factors described in subsections (c), (d) and (e) are applicable unless the impaired driving charge is consolidated with a charge carrying a greater punishment. Two or more impaired driving charges may not be consolidated for judgment (f3): Aggravated Level One (A1) punishment Minimum 12 Months Shall be sentenced to not less than 12 months active up to 36 months Maybe less if CAM The active time can only be suspended if at least 120 days active plus CAM for a minimum of 120 days Parole still exists but restricted The Defendant is released at maximum less four months and shall be supervised and shall also be required to have CAM for the four-month period of supervision if released at less than one year Alcohol assessment and comply **Get this done before sentencing, and completed, or it could hold your client up from release.** Fined up to $10,000 Page 12

13 (g): Level One (1) punishment Not less than 30 days active (unless CAM) The Defendant shall receive at least 30 days and up to 24 months active time days if CAM Active time may be reduced to 10 days if CAM not less than 120 days. (Up to 60 days of pretrial monitoring may be credited against requirement) Alcohol assessment and comply Fined up to $4, (h): Level Two (2) punishment Not less than 7 days active (unless CAM) Shall be sentenced to a not less than 7 days active to 12 months Active time may be reduced to 0 days if CAM The active time can be reduced to zero if CAM for not less than 90 days. (Up to 60 days of pretrial monitoring may be credited against requirement) Additional Community Service If the defendant is subject to Level Two punishment based on a finding that: 1) the grossly aggravating factor in subdivision (1) [prior DWI] or (2) [driving at the time revoked for prior DWI] of subsection (c) of NCGS applies, 2) the conviction for a prior offense involving impaired driving occurred within five years before the date of the offense for which the defendant is being sentenced, and 3) the judge suspends all active terms of imprisonment and imposes abstention from alcohol as verified by a continuous alcohol monitory system, Then the judge must also impose as an additional condition of special probation that the defendant must complete 240 hours of community service Alcohol assessment and comply Fined up to $2,000 Page 13

14 (i): Level Three (3) punishment Not less than 72 hours active or Community Service Shall be sentenced to a not less than 72 hours (can be CS) to 6 months Sentence can be suspended if: Client serves at least 72 hours as a condition of special probation; or perform 72 hours community service (or both) Alcohol assessment and comply Fined up to $1, (j): Level Four (4) punishment Not less than 48 hours active or Community Service Shall be sentenced to a not less than 48 hours (can be CS) to 120 days Sentence can be suspended if: Client serves at least 48 hours as a condition of special probation; or perform 48 hours community service (or both) Alcohol assessment and comply Fined up to $ (k): Level Five (5) punishment Not less than 24 hours active or Community Service Shall be sentenced to a not less than 24 hours (can be CS) to 60 days Sentence can be suspended if: Client serves at least 24 hours as a condition of special probation; or perform 24 hours community service (or both) Alcohol assessment and comply Fined up to $200 Page 14

15 3-1. CAM Continuous Alcohol Monitoring NCGS (h1): If Level One or Level Two the court can impose CAM for a minimum of 30 days, to a maximum of the term of probation. However under NCGS (k2) the court can require CAM as a special term of probation for any level offense Credit for inpatient treatment NCGS (k1): The judge may order (under any level of punishment) inpatient treatment be counted as active time provided such treatment occurred after the commission of the offense. 4. Issues in 4-1. Contesting Factors Since the burden of proof is on the State, you need to object if the State starts reciting aggravators and advise the court that you would like a proper sentencing hearing since issues are contested, and the State must prove the aggravators with admissible evidence (See Apprendi / Blakely below) General Issues to review ) Whether a prior conviction exists is an issue for judge Whether a prior conviction exists shall be matters to be determined by the judge, and not the jury, in district or superior court. But it must be proven Beyond a Reasonable Doubt! If it is an out of State conviction, no not concede anything ) District Attorney's recital is not enough (1) State v. Lockwood, 78 N.C.App. 205 (1985). Finding as an aggravating factor that defendant's driving was especially reckless was unwarranted, where only evidence before court was assistant district attorney's recital that defendant was charged with running flashing red light on same citation as driving while impaired charge, but there was no evidence to support that assertion ) Using aggravating or grossly aggravating factors twice? (1) State v. McBride, 109 N.C.App. 64 (1993) 2 nd degree murder DWI case where a previous DWI was used to prove malice element. As to sentencing, the court held that the prosecution could not use a prior conviction of DWI to aggravate the sentence because they used the prior DWI to bolster the element of malice in 2 nd degree murder. "[B]ecause defendant's prior convictions were offered by the State as proof of malice, the trial court's consideration of such convictions as a factor in aggravation was error." Id. at ) Apprendi / Blakely (1) Apprendi v. New Jersey, 530 U.S. 466 (2000) Page 15

16 Any factor, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum has to be submitted to a jury and proved beyond a reasonable doubt. (2) Blakely v. Washington, 542 U.S. 296 (2004) The relevant statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict (or admitted by the defendant). As a result of Blakely, the General Assembly amended NCGS to require that aggravating factors (which increase the maximum sentence) in DWIs must be proved beyond a reasonable doubt. While the legislature only added a notice requirement to superior court cases, there is some argument that the notice should apply to district court since it is a trial on the issues, and then the State enhances the sentencing after the trial. While this is an academic argument, the State will argue that there is no statutory requirement. Argue that Blakely requires this. The problem is that the Court could well sustain your objection, not find the extra factor, then hurt your client just as badly (or worse). (3) Effects of Apprendi and Blakely Assuming that the test results were not admitted during trial, at the sentencing hearing, upon objection by a defendant, the chemical analysis results cannot be introduced in district or superior court to prove an aggravating factor without live testimony and the ability to cross examine. Since aggravating factors must now be proven beyond a reasonable doubt, there is a strong argument that aggravating factors are now treated the same as elements of the offense of impaired driving. If aggravating factors are in essence elements of the crime itself for purposes of affording a defendant constitutional protections secured by the due process clause and the Sixth Amendment, then the confrontation clause applies to evidence offered at a sentencing hearing to establish such factors. (1) Defendant s Argument - State v. Bell, 359 N.C. 1 (2004) The Court addressed the issue of aggravating factors at sentencing in Bell which was a capital murder case. The Court held that the confrontation clause applied to bar the admission of an out-of-court testimonial statement at the sentencing of the defendant. In Bell, the State called the investigating officer to testify regarding a statement given by the victim of the robbery. The Court Of Appeals held that the trial court erred in allowing the State to introduce the witness s statement through the officer. (2) Prosecutor s Potential Argument - State v. Sings, 182 N.C. App. 162 (2007) The State may attempt to argue Sings. In Sings, the Court of Appeals did not extend application of the confrontation clause to non-capital sentencing hearings. The State then argues that courts should not apply the confrontation clause at sentencing hearings for impaired driving since it is not a capital offense. However, you need to be prepared to distinguish Sings. In Sings the defendant pled no contest to voluntary manslaughter and stipulated to his prior record level and stipulated to three aggravating factors. Additionally, the plea agreement stated that the defendant and the State would present evidence about the appropriate sentence. The plea agreement stated the sentence would be within the presumptive or aggravated range. The evidence Sings objected to was unrelated to any of the stipulated aggravating factors and did not expose Sings to greater punishment than he otherwise potentially faced because of his plea arrangement. Thus Sings is clearly distinguishable. (3) Effects of Bell and Sings In sum, precedent from Bell and Sings leaves open the question of whether the confrontation clause applies to bar out-of-court testimonial statements admitted to prove a sentencing factor that could potentially increase a defendant s maximum sentence in non-capital cases. Page 16

17 Given that aggravating factors in DWI cases are treated similar to elements for purposes of applying the due process requirement that the standard of proof be beyond a reasonable doubt, and that the defendant is entitled to a jury determination of sentencing factors in Superior Court, it follows, then, that the constitutional protections afforded by the confrontation clause would apply to evidence offered at a sentencing hearing to establish such factors. See, e.g., State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008) (holding that because cross-examination is a core component of a defendant s right to a jury trial, the right of confrontation applies to sentencing issues to be decided by a jury) DWLR as aggravating or grossly aggravating ) Gross factor: NCGS 179 (c)(2): "Driving by the defendant at the time of the offense while his driver's license was revoked under NCGS 20-28, and the revocation was an impaired driving revocation under NCGS (a)." In the DWI forfeiture statute (NCGS (a)) the State defines an "Impaired Driving License Revocation." License forfeited due to impaired driving if under the following statutes: (1) NCGS , 20-16(a)(8b), , , 20-17(a)(2), 20-17(a)(12), or ; or (2) NCGS 20-16(a)(7), 20-17(a)(1), 20-17(a)(3), 20-17(a)(9), or 20-17(a)(11), if the offense involves impaired driving; or (3) The laws of another state and the offense for which the person's license is revoked prohibits substantially similar conduct which if committed in this State would result in a revocation listed in subdivisions (1) or (2). So what is each possible revocation which could result in a grossly aggravating factor? Here is the list expanded: (1) According to NCGS (a): The Division must revoke the license of a person convicted of violating the provisions of NCGS (Underage DWI) upon receipt of a record of the licensee's conviction Thus if your client is revoked for the baby U21; it could be considered a grossly aggravating factor if properly proven. But technically any violation under is statutorily a grossly aggravating factor and is defined as an alcohol related offense by (a) even if there was no alcohol or other impairment. This was clearly not the legislature s intent, but that is the sausage produced by the process. If a person drops out of high school NCGS (c1), or conviction for a hoax concerning a destructive device in a public building, NCGS (c2), then this by definition and act of statute becomes an alcohol related offence. (2) NCGS 20-16(a)(8b) Has violated on a military installation a regulation of that installation prohibiting conduct substantially similar to conduct that constitutes impaired driving under NCGS and, as a result of that violation, has had his privilege to drive on that installation revoked or suspended after an administrative hearing authorized by the commanding officer of the installation and that commanding officer has general court martial jurisdiction (3) NCGS Any implied consent revocation: refusal revocations. (4) NCGS A CVR: Civil License Revocation pursuant to an implied consent offense. However after the (30 or 45 day) revocation period the person is simply NOL(No Operator s License) and not revoked if they fail to pay the restoration fee. See NCGS (a1) Driving Without Reclaiming License. (5) NCGS 20-17(a)(2) Page 17

18 Either of the following impaired driving offenses: a. Impaired driving under NCGS b. Impaired driving under NCGS (commercial vehicle), if the driver's alcohol concentration level was.06 or higher. (6) NCGS 20-17(a)(12) A second or subsequent conviction of transporting an open container of alcoholic beverage under NCGS (7) NCGS : Habitual impaired driving (8) NCGS 20-16(a)(7), revoked from another state if the offense involves impaired driving Has committed an offense in another state, which if committed in this State would be grounds for suspension or revocation if the offense involves impaired driving. See discussion of out of state convictions below, but in essence the State must prove that the offense committed would have been grounds for suspension in this State. Per se violations exist in other states which would not be an offense if committed in North Carolina. (9) NCGS 20-17(a)(1), Manslaughter if the offense involves impaired driving Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle, if the offense involves impaired driving. For each of the following the State must prove that the actual offense, when it occurred, involved impaired driving, but generally if it did, then the defendant would have the corresponding DWI conviction. This may be very difficult for the State to prove. Make certain that the State proves it beyond a reasonable doubt. (10) NCGS 20-17(a)(3), Motor vehicle related felony if the offense involves impaired driving Any felony in the commission of which a motor vehicle is used, if the offense involves impaired driving. (11) NCGS 20-17(a)(9), death by vehicle (etc.) if the offense involves impaired driving Any offense set forth under NCGS (Felony and misdemeanor death by vehicle; felony serious injury by vehicle; aggravated offenses; repeat felony death by vehicle), if the offense involves impaired driving (12) NCGS 20-17(a)(11), assault with a motor vehicle if the offense involves impaired driving Conviction of assault with a motor vehicle if the offense involves impaired driving. (13) Conviction of assault with a motor vehicle or the same from another State if the offense involves impaired driving Note: this is a specific statutory reference so the State must prove the actual cause of the revocation. This is NOT the initial cause of the revocation, but the reason that your client was actually revoked on the day that the new offense occurred ) Simple aggravator With NCGS (d)(4) the State needs only prove that the defendant s license was revoked at the time. The cause of the revocation does not matter. It could be as simple as three No Operator s License ( NOL ) convictions Three situations to contest DWLR factor even if no license There are three basic situations where even if the State can prove that and the revocation was an impaired driving revocation under G.S (a), the factor should not be applicable because there was no requirement that the person had a license, but many prosecutors push these. Page 18

19 ) Merely NOL Your client was not driving while his privilege was revoked but was merely NOL. Read NCGS 20-28(a1) Driving Without Reclaiming License. This is not an aggravating factor! ) A moped/bicycle does not require a driver s license Your client was not committing the offense of DWLR because applies only to driving a vehicle which requires a driver s license. A moped/bicycle does not require a driving privilege. For DWI purposes you can get a DWI on a moped the same status as a bicycle. The legislative intent of the GAF is to penalize a person driving while their license is revoked in violation of that statute. A person can commit DWI on a bicycle, but certainly the seriousness of the offense on a bicycle does NOT depend on whether one has had his driver s license restored. One way to possibly get this concept through to a specifically obstinate District Attorney or Judge would be to use the term riding a bike or moped rather than driving a vehicle. But it could then be argued that you ride a motorcycle rather than driving it. It is thus better simply to stick to the legislative purpose of imposing additional punishment for violating a driving privilege requirement which is not present in bicycle and moped offences ) You do not need a driver s license to drive in a parking lot. Many DWIs occur in the parking lots of clubs. There is no requirement that the driver have a license to operate in a parking lot, so there is no logical reason to enhance punishment for DWLR. Some courts look at the literal reading of NCGS (c)(2) which says: (2) Driving by the defendant at the time of the offense while his driver's license was revoked under G.S , and the revocation was an impaired driving revocation under G.S (a). And the State argues that it is not an issue of whether a license was required, but the enhancement applies to all driving. There is a legitimate argument on both sides of this issue. A reasonable Judge could go either way Prior out of state convictions: All too often defense attorneys do not fight prior convictions out of state as grossly aggravating factors. First be certain to reread NCGS (o) before any sentencing hearing in which your client has a prior out of state conviction which could affect the sentencing. Be prepared. (o) Evidentiary Standards; Proof of Prior Convictions. -- In the sentencing hearing, the State shall prove any grossly aggravating or aggravating factor beyond a reasonable doubt, and the defendant shall prove any mitigating factor by the greater weight of the evidence. Evidence adduced by either party at trial may be utilized in the sentencing hearing. Except as modified by this section, the procedure in NCGS 15A-1334(b) governs. The judge may accept any evidence as to the presence or absence of previous convictions that he finds reliable but he shall give prima facie effect to convictions recorded by the Division or any other agency of the State of North Carolina. A copy of such conviction records transmitted by the police information network in general accordance with the procedure authorized by G.S (b) is admissible in evidence without further authentication. If the judge decides to impose an active sentence of imprisonment that would not have been imposed but for a prior conviction of an offense, the judge shall afford the defendant an opportunity to introduce evidence that the prior conviction had been obtained in a case in which he was indigent, had no counsel, and had not waived his right to counsel. If the defendant proves by the preponderance of the evidence all three above facts concerning the prior case, the conviction may not be used as a grossly aggravating or aggravating factor ) Three immediate statutory considerations to keep in mind straight from the statute: (1) Burden of Proof of Prior Convictions: In the sentencing hearing, the State shall prove any grossly aggravating or aggravating factor beyond a reasonable doubt, and the defendant shall prove any mitigating factor by the greater weight of the evidence. Evidence adduced by either party at trial may be utilized in the sentencing hearing. Page 19

20 (2) Formal rules of evidence do not apply: Except as modified by (o), the procedure in NCGS 15A-1334(b) (standard sentencing hearing which includes the statement: Formal rules of evidence do not apply. ) governs. So you need to know and understand the Effects of Apprendi and Blakely above. (3) While admissible DMV and PIN are Prima Facie only. The judge may accept any evidence as to the presence or absence of previous convictions that he finds reliable but he shall give prima facie effect to convictions recorded by DMV. A copy of convictions on a PIN (police information network) is admissible in evidence without further authentication. There are six basic issues to review if the client faces a possible grossly aggravating factor for a prior out of State conviction: ) The state has to find it and allege the out of state conviction. If the State fails to allege the grossly aggravating or aggravating factor you are ethically bound to remain silent and not give confidential information which you have which will harm your client. However with this comes the dual duty not to participate in any misrepresentations to the court. You can present mitigating factors; however do not comment on the client s record ) The state has to prove the prior conviction at a sentencing hearing. Assuming the prosecutor finds the prior conviction, then the issue arises as to whether they can prove it beyond a reasonable doubt. Be certain that you are prepared with the case law. Remember that the standard has changed since Apprendi, so do not let the prosecutor use outdated case law. While the PIN or DMV record is admissible, and the State may get a presumption that the conviction is valid. The State still must prove it would have qualified as a DWI under North Carolina Law. There have been a new string of recent cases (last 5 years) involving the State proving prior convictions in the Felony prior record arena. These transpose well into the argument that the State must prove any prior convictions. After you have reviewed the prior conviction yourself (prior to sentencing) you should look though the Felony sentencing cases to see if you see issues which may help in your specific case ) The state has to prove the actual conviction was based upon a substantially similar crime from the other state. All too often good defense attorneys miss critical issues in DWI specific cases. There is not a national crime of DWI. Every State has its own code and nuances. A determination whether an out-of-state conviction is substantially similar to a North Carolina offense requires "comparison of the elements of the out-of-state offense to those of the North Carolina offense." State v. Fortney, N.C.App., (2010). N.C. Gen. Stat. 15A (e) does not require that the statutes' "wording precisely match, but rather that the offense be 'substantially similar.'" State v. Sapp, 190 N.C.App. 698, 713 (2008), appeal dismissed and disc, review denied, 363 N.C. 661, (2009). "Substantially is defined as '[e]ssentially; without material qualification[.]'" State v. Parisi, 135 N.C.App. 222, (1999) (quoting Black's Law Dictionary 1428 (6th ed. 1990)). Consider the per se Marijuana statute in Ohio as one such example which is not illegal in North Carolina: Page 20

21 Operating vehicle under the influence of alcohol or drugs OVI (j) (vii) The person has a concentration of marijuana in the person s urine of at least ten nanograms of marihuana per milliliter of the person s urine or has a concentration of marijuana in the person s whole blood or blood serum or plasma of at least two nanograms of marijuana per milliliter of the person s whole blood or blood serum or plasma. The State must prove that in this specific conviction of the defendant he was violating a section of the Statute that would have been specifically illegal in North Carolina. If your client could have been convicted in the other State for a per se violations that would not have been illegal in North Carolina, then the conviction would not be counted as an aggravating factor ) You must have reviewed the prior conviction for Boykin/Bozeman issues There must be proof in the record that the Defendant voluntarily and understandingly entered his plea of guilty in the prior the prosecution is attempting to introduce. (1) Boykin v. Alabama U.S. 238 (1969) Mr. Boykin was represented by appointed counsel, pleaded guilty to five indictments for common law robbery. The judge asked no questions of petitioner concerning his plea, and petitioner did not address the court. The jury found aggravators and sentenced him to death on each indictment. The Alabama Supreme Court reviewed the sentences under the State's automatic appeal statute for capital cases, which requires the reviewing court to comb the record for prejudicial error even though not raised by counsel. Petitioner did not raise the question of the voluntariness of his guilty plea, and the State Supreme Court did not pass on that question, though a majority of the court explicitly considered it in affirming his sentences of death. The U. S. Supreme Court ruled that the lower court s acceptance of the petitioner's guilty plea under the circumstances constituted reversible error because the record does not disclose that the petitioner voluntarily and understandingly entered his plea of guilty. (2) NCGS (o) Codifying Boykin: If the judge decides to impose an active sentence of imprisonment that would not have been imposed but for a prior conviction of an offense, the judge shall afford the defendant an opportunity to introduce evidence that the prior conviction had been obtained in a case in which he was: 1) indigent, 2) had no counsel, and 3) had not waived his right to counsel. If the defendant proves by the preponderance of the evidence all three above facts concerning the prior case, the conviction may not be used as a grossly aggravating or aggravating factor. While the statute includes a codified list of Boykin factors, you should be familiar with the history of the issue and some relevant case law here in North Carolina. (1) State v. Haislip, 79 N.C.App. 656 (1986) Prior conviction for driving while under influence can be used to enhance defendant's sentence for driving while impaired, except where defendant shows, by preponderance of evidence, that he was indigent, had no counsel, and did not waive counsel in connection with prior proceeding. (2) State v. Speight, 166 N.C.App. 106 (2004) Trial court's imposition of sentence in aggravated range violated defendant's Sixth Amendment right to trial by jury, where trial court unilaterally found existence of aggravating factor and, thereupon, departed from the presumptive range and sentenced defendant in aggravated range. Page 21