by School of Government faculty members Jamie Markham and Shea Denning The folks at DOC combined records tell us they see a lot of habitual impaired driving judgments that look like this: 15 - 18 months, suspended, with an intermediate condition of special probation (i.e., a split sentence) requiring an active term of 12 months in DOC custody. DOC thinks that's an illegal sentence. We think they might be right. The punishment provision of the habitual impaired driving statute, G.S. 20-138.5(b), says: A person convicted of violating this section shall be punished as a Class F felon and shall be sentenced to a minimum active term of not less than 12 months of imprisonment, which shall not be suspended. Sentences imposed under this subsection shall run consecutively with and shall commence at the expiration of any sentence being served. So the question is, does G.S. 20-138.5(b) mean that habitual DWI sentences can't be suspended at all? Or does it just mean at least 12 months of the sentence must not be suspended. We think it probably means that habitual DWI sentences can't be suspended at all. That appears to be the clearer reading of the plain language of the statute, and the reading that avoids a conflict with G.S. 15A-1351(a), which would ordinarily cap the active portion of a split at one-fourth the maximum sentence imposed (a little over four months in our example above). Moreover, the other reading of the law appears to misunderstand the nature of special probation. The [...]
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