DWI Sentencing

So, they want change to the sentencing laws for DWI’s, do they. Be careful what you ask for. Currently, DWI’s in North Carolina fall under the old Fair Sentencing system that was in effect until 1994. In that year, the State legislature revamped both misdemeanor and felony sentencing so that a person who received a particular sentence would actually serve that sentence — day-for-day. This new law, called Structured Sentencing replaced the Fair Sentencing law, mentioned above.
Specifically excluded from the new Structured Sentencing law was the offense of DWI. This was the Legislature’s idea. The theories on why they made this decision are many and not worth discussing here; what’s important to note, is that it was a decision made by the legislative branch of government. The legislature decided to maintain, for DWI’s, the Fair Sentencing system that calls for an immediate cutting in half of whatever active sentence is meted out.
DWI in North Carolina is a misdemeanor. The maximum punishment for a DWI is two years in prison. All other misdemeanors in North Carolina are subject to Structured Sentencing, and the maximum punishment for the most serious class of misdemeanor (Assault on a Female; Assault on a Law Enforcement Officer, for examples) is 150 days in jail (that’s five months). Any Structured Sentencing misdemeanor’s sentence can be suspended and the Defendant can be placed on probation, regardless of how many prior convictions he may have. A DWI sentence is automatically cut in half; the Structured Sentencing crimes are not. To qualify for the maximum DWI punishment, the State must show as little as one prior conviction of DWI in the last seven years and one other so-called “grossly aggravating factor.” To qualify for the maximum sentence in a Structured Sentencing crime, the state must show five or more prior convictions. It”s much, much easier to reach the maximum sentence in a DWI than it is the maximum sentence in a Structured Sentencing misdemeanor.
The two highest or severest DWI sentences under the current law call for a mandatory minimum seven-day or 30-day active jail sentence as a condition of probation. This time must be served day-for day. In other words, while a misdemeanant with at least five prior convictions who assaults a woman or a cop can be placed on probation and never see the inside of a jail cell, a person convicted of a DWI who has one prior conviction for DWI and another grossly aggravating factor, must serve at least 30 days in jail along with all the other terms of probation.
Those legislators who are too cowardly to admit that it is their branch of Government that has created this non-scandal are all to eager to have us believe that it’s the fault of the sentencing judges. The judges simply hand out the sentences that the legislature tells them to. Judges have no control over the cutting in half of DWI sentences; that was the legislature’s idea.
So, let’s see what happens if we bring DWI’s in line with Structured Sentencing. And let’s make DWI the most serious class of misdemeanor, with 150 days of potential active time. The State would have to prove the case, then prove five or more prior convictions (some of which might be DWI’s), then the court could suspend the 150 days and place the Defendant on probation or send him to jail for 150 days. Is this really better than having to prove fewer prior convictions to obtain a conviction that either carries a two year sentence automatically cut to one year or probation with a mandatory 30 day active portion? As a criminal defense lawyer, I applaud this possible change in the law; I relish the thought of telling my clients that their potential exposure to active time is lessened now that we’ve seen fit to bring DWI’s under structured sentencing.
The other idea being tossed around is that of making DWI a felony. I applaud this move too. Felonizing DWI’s would almost certainly scare off those incompetent lawyers who currently accept DWI clients but don’t know what they’re doing, thereby ensuring that those charged with a DWI are receiving the proper, competent representation. Felonizing DWI’s, while potentially saddling the Defendant with a felony versus a misdemeanor (a distinction without a difference these days), would further help the Defendant in that he would be subject to Structured Sentencing with its shorter sentences and requirement of many more prior convictions to aggravate the penalty. But most importantly, felonizing DWI would subject the State to the Discovery requirements afforded those charged with felonies but not those charged with misdemeanors. Felonizing DWI’s will, for me at least, open the door to burying the DA in voluminous requests for voluntary discovery, endless motions to compel and motions to suppress, Brady motions all over the place. Felonizing DWI will be the death-knell of the breathalyzer machine because the State will either be disallowed from introducing that evidence at trial because of its failure to comply,or because the State will finally have to give up all its dirty little secrets about how the machine really works (and they don’t want to do that).
So. Bring it on. I don’t care what they do. The more they push, the more I’ll push back. The more they try to intimidate, the more I’ll fight.