Prior Record for Recidivist (and Recidivist-ish) Crimes

I am frequently asked about what convictions may count toward a defendant’s prior record level in prosecutions under the habitual felon law and other similar laws, like habitual impaired driving. For habitual felon prosecutions, the answer is pretty clear—G.S. 14-7.6 says convictions used to establish a person’s status as an habitual felon may not also be counted for prior record points. There are wrinkles (explored in greater detail here [UPDATED]), like if the State happens to allege four prior felonies in the habitual felon indictment, none of them may count for prior record points, even though only three of them were necessary to habitualize the defendant. State v. Lee, 150 N.C. App. 701 (2003). But the bottom-line rule is straightforward enough. As for habitual DWI, though the relevant statute (G.S. 20-138.5) is silent on the issue of whether the misdemeanor DWI convictions underlying a felony habitual DWI charge may count for prior record points in the habitual DWI prosecution, the Court of Appeals has told us they may not. In State v. Gentry, 135 N.C. App. 107 (1999), the court grafted the G.S. 14-7.6 rule onto G.S. 20-138.5, noting the “basic unfairness and constitutional restrictions” on using the same convictions both to elevate a defendant’s sentencing status and to increase his or her prior record level. [Note, however, that a felony habitual DWI and the misdemeanor DWIs underlying it may all count for prior record points if the defendant is later prosecuted for another offense—like involuntary manslaughter, as was the case [...]