To Prove Aggravating Factors for DWI in Superior Court, State Must Provide Notice

One person convicted of misdemeanor impaired driving may be placed on probation and ordered to complete 24 hours of community service. Another may receive an active sentence of three years’ imprisonment. The severity of the sentence depends largely on the presence of aggravating factors, which must be proved by the State. When a misdemeanor impaired driving conviction entered in district court is appealed for trial de novo in superior court, the State must notify the defendant no later than ten days before trial that it intends to prove one or more aggravating factors. G.S. 20-179(a1)(1). If the State fails to provide that notice, the factors may not be used by the superior court to determine the defendant’s sentence. The court of appeals recently affirmed in State v. Hughes, ___ N.C. App. ___ (April 16, 2019), that there is no exception to this rule for aggravating factors that were found by the district court below. State v. Hughes. The defendant in Hughes was convicted of impaired driving in district court and sentenced to Level One punishment based on the presence of two grossly aggravating factors: (1) driving while the defendant’s license was revoked for impaired driving in violation of G.S. 20-28(a1); and (2) a prior conviction for an offense involving impaired driving within seven years before the date of the current offense. He received a suspended sentence of 24 months and was ordered to serve 30 days imprisonment as a condition of special probation. The defendant appealed to superior court for trial [...]