Another Look at the DWI Super-Aggravator in G.S. 20-179(c)(4)

Last summer I wrote this post about amendments to the fourth grossly aggravating factor applicable to sentencing for impaired driving, namely the factor in G.S. 20-179(c)(4) that elevates punishment for driving while impaired with a child in the vehicle. Amendments effective for offenses committed on or after December 1, 2011 render this factor applicable if any of the following persons were in the vehicle at the time of the offense: (1) a child under the age of 18; (2) a person with the mental development of a child under 18; or (3) a person with a physical disability that prevents the person from getting out of the vehicle without assistance.  S.L. 2011-329.  When I summarized the amendments last summer, I wrote:  “[I]f more than one of these types of persons is in the car, it appears that only on grossly aggravating factor applies.”  I want to revisit that issue in this post. G.S. 20-179(c)(4) does not specify whether more than one grossly aggravating factor exists if more than one qualifying minor or disabled person is in the vehicle at the time of the offense.  It did not so specify before it was amended, though then it applied only when one category of persons was present in the vehicle: a child under the age of 16. In light of G.S. 20-179(c)(1)’s specification that each qualifying prior conviction counted as a separate grossly aggravating factor, the prevailing interpretation before the statute was amended was that, regardless of the number of children present in [...]