To Fight For Your Rights
Is DUI A Felony in North Carolina?
Driving While Impaired has become a pariah of sorts in the community. . .and likely for good reason. Despite ever-increasing penalties for Impaired Driving Law of North Carolina, the metrics of traffic accidents and fatalities associated with the consumption of alcohol and other impairing substances is nothing less than staggering.
That is especially true for the statewide leaders in DWI fatalities, to wit: Mecklenburg and Wake Counties. So while some may not be as concerned on the front-end about a violation of 20-138.1, on the back-end they should be EXTREMELY WORRIED about N.C.G.S. 20-179 among others.
Indeed, there are certain “factors” associated with Driving While Impaired that can result (**See Grossly Aggravating Factors below) in an active jail or prison term, even if a first offense. Specifically, “Is DUI A Felony?” normally the answer is “No; but, there are exceptions.”
There are criminal charges in North Carolina associated with DWI that can result in separate, additional felony charges. The vast majority of offenses fall within the traditional definition, for most intents and purposes, of a misdemeanor. DWI cases in North Carolina are complicated and require careful analysis.
There are instances where multiple convictions for Impaired Driving can result in a felony conviction, as is the case with Habitual Driving While Impaired.
The purpose of this article by North Carolina DUI attorney Bill Powers is to provide background information on the law of DWI sentencing and the legal authority under North Carolina General Statutes.
Felony or “felon” comes from an Old French term, defined as “evil-doer, scoundrel, traitor, rebel, the Devil.” It is a Common Law precept, and is often distinguished from a Misdemeanor as a more serious offense. Under early English Law, a felony was any crime punishable by death, mutilation or forfeiture of one’s lands and goods.
Traditionally in the United States, felonies were those charges often punished by imprisonment for more than a year. Felons are treated as outsiders. In the United States, at least one privilege of Citizenship, the right to vote, can be suspended (at least temporarily) due to a conviction for a felony.
Habitual impaired driving in North Carolina is formally defined, by statute, in N.C.G.S. 20-138.5. The “elements of the offense” are:
- Drives while impaired as defined in N.C.G.S. 20-138.1 AND
- Has been convicted of three or more offenses involving impaired driving AND
- Within ten (10) years of the date of the offense.
Habitual Driving While Impaired is categorized as a Class F felon, which carries a maximum prison term of fifty-nine (59) months for offenses committed on or after October 1, 2013 under the North Carolina Felony Punishment Chart. N.C.G.S. 20-138.5 further mandates:
- Minimum active term of not less than 12 months of imprisonment, which shall not be suspended
- Shall run consecutively with and shall commence at the expiration of any sentence being served
- Shall have license permanently revoked
- The motor vehicle driven at the time is “subject to forfeiture”
The North Carolina General Assembly has reviewed the definition of Habitual Impaired Driving in North Carolina. During the 2013-2014 Session House Bill 31 was introduced. According to the Civitas Institute, certain “crossover bills” for consideration in 2014 include House Bill 31 and House Bill 40 “Amend Habitual DWI.”
The bills proposed that “a person convicted of two or more offenses of impaired driving and 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.”
If the statutory language changes, one result could be an imposition of a “Three Strikes and You’re Out” application to Habitual Impaired Driving offenses in North Carolina. There is precedent for such construct in N.C.G.S. §14-7.1.
14-7.1 – Persons Defined as Habitual Felons
Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon and may be charged as a status offender pursuant to this Article. For the purpose of this Article, a felony offense is defined as an offense which is a felony under the laws of the State or other sovereign wherein a plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed.
Presently, as it pertains to DWI in North Carolina, three priors within 10 years, plus a new offense, is the legal definition. Proposed legislation may also add a “habitual habitual” clause, where the “10 year look-back” could be affected.
While the violation of the Impaired Driving statute normally results in a misdemeanor conviction, there are other cases associated with operation under the influence that can result in felony charges, including but not limited to:
- Murder in the Second Degree
- Involuntary Manslaughter
- Felony Death by Motor Vehicle
Second Degree Murder charges is punished as a Class B1 felony, “except that a person who commits second degree murder shall be punished as a Class B2 felon” when “The malice necessary to prove second degree murder is based on an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bend on mischief.”
Punishment for involuntary manslaughter is punishable as a Class F felony. In North Carolina, Involuntary Manslaughter is a Common Law offense and normally involves the unintentional killing of another. As is the case with all homicides, the accused’s act must “proximately cause” the victim’s death. State v. Bruton, 344 N.C. 381, 393 (1996).
The ability to foresee the likely result of an action is an essential part of proximate cause for involuntary manslaughter. State v. Cole, 343 N.C. 399, 416 (1996). However, foreseeability does not require one must have foreseen the exact injury incurred; rather, it means that “in the exercise of reasonable care, the defendant might have foreseen that some injury would result from his or her act or omission, or that consequences of a generally injurious nature might have been expected.”
Felony Death by Motor Vehicle (N.C.G.S. 20‑141.4) is defined as:
- (a1) Felony Death by Vehicle. – A person commits the offense of felony death by vehicle if:
- (1) The person unintentionally causes the death of another person,
- (2) The person was engaged in the offense of impaired driving under G.S. 20‑138.1 or G.S. 20‑138.2, and
- (3) The commission of the offense in subdivision (2) of this subsection is the proximate cause of the death.
Blacks Law Dictionary defines Probable Cause as: “That which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.”
Whereas most impaired driving offenses come no where near such dire punishment terms, there are instances where even a first time offender can end up with a felony conviction, answering the question Is DUI a Felony?Is Jail Possible for a First Offense DWI in North Carolina?
Put simply, yes. Sentencing in North Carolina after a conviction for impaired driving falls under N.C.G.S. 20-179. It is an EXTREMELY COMPLICATED area of law. There are numerous factors to consider, including the balancing process by the Court of Grossly Aggravating, Aggravating & Mitigating Factors. **Grossly Aggravating Factors are the most serious and include:
- Prior Conviction of Offense Involving Impaired Driving within seven (7) years of offense
- Driving While License Revoked, due to an Impaired Driving Revocation
- Serious Injury caused by Impaired Driving
- Driving While a Child Under 16 in Vehicle
Given the incredible number of factors to consider, one would be best served in speaking with an experienced DWI attorney in North Carolina. If you have additional questions like, “Is DWI a felony”, or regarding impaired driving offenses, including sentencing, court processes or arrests, please feel free to contact Bill Powers directly at: 877-462-3841. Powers Law Firm offers confidential consultations, free of charge, for offenses involving DWI DUI and Impaired Driving.