Donna Defendant's license was revoked on May 1, 2007 upon her conviction of driving after consuming in violation of G.S. 20-13.2. On January 15, 2008, Donna Defendant was charged with impaired driving and driving with a revoked license. Donna Defendant is convicted of both offenses in district court. At the sentencing hearing, the district court judge finds one grossly aggravating factor: driving at the time of the offense while her license was revoked for an impaired driving revocation. Based on that finding, the judge imposes a Level 2 punishment for the impaired driving conviction, sentencing Donna to 12 months imprisonment. The judge also imposes a sentence of 120 days for the conviction of driving while license revoked to run at the expiration of the sentence for impaired driving. Donna objects, arguing that punishing her for driving while license revoked violates double jeopardy. Donna argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny establish that aggravating factors under GS 20-179, which increase the maximum punishment that may be imposed upon a defendant convicted of impaired driving, are, in fact, elements of the offense. The assistant district attorney argues that while aggravating factors may be treated as the functional equivalent of elements for Sixth Amendment purposes, they are not elements for purposes of applying the Blockburger test to determine whether the double jeopardy clause bars punishment for both offenses. Who has the better of these arguments? No North Carolina court has weighed in on this question, but writing for [...]
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