I first encountered North Carolina's impaired driving sentencing scheme several years ago when I worked as an Assistant Federal Public Defender for the Eastern District of North Carolina. I represented defendants charged under the Assimilative Crimes Act, 18 U.S.C. § 13, with committing violations of assimilated state offenses on a certain federal enclave in Fayetteville. I recall trying to determine whether a defendant charged with violating the assimilated state law offense of driving while impaired was automatically entitled to a jury trial in federal court, given that the punishment for impaired driving can only exceed six months based on a finding of at least one grossly aggravating factor. I was practicing at the time in a post-Apprendi v. New Jersey (530 U.S. 466), but pre-Blakely v. Washington (542 U.S. 296) world, and I (and others) wondered: Did G.S. 20-138.1 and 20-179 define five separate impaired driving offenses or one offense with five levels of punishment? North Carolina's impaired driving statutes were amended post-Blakely to require that aggravating factors that increased the maximum punishment be found by a jury (in superior court) and be proven beyond a reasonable doubt. By affording element-like constitutional protections to these sentencing factors, the 2006 amendments largely (though not entirely) rendered academic the question of whether G.S. 20-138.1 and G.S. 20-179 defined one-or five-offenses. While the finder of fact and burdens of proof were altered by 2006 and 2007 amendments to the impaired driving statutes, the five-level punishment structure in G.S. 20-179 (which governs sentencing for conviction [...]
Faculty Coordinators
