In Driving While Impaired (“DWI”) charges in North Carolina, the Court considers various aggravating and mitigating factors to determine how the Defendant is to be punished. The Court assigns five different levels of DWI offenders with Level A1 being the most serious and Level 5 being the least. One such aggravating factor is whether or not the Defendant has a prior conviction of DWI.
A defendant charged with DWI cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.
In State v. Williams, 786 S.E.2d 419 (2016), the Court determined that the State is not bound by the statutory notice provisions in G.S. 20-179(a1)(1) for misdemeanor impaired driving prosecutions initiated in superior court, and the State’s failure to provide advance notice of its intent to prove prior convictions as aggravating factors at sentencing for an impaired driving prosecution initiated in superior court does not violate a defendant’s Sixth Amendment right to notice of the charges against him. The holding in Williams is narrow since the trial court considered only the defendant’s prior convictions as aggravating factors. For any of the other aggravating factors alleged by the State to have been considered, the jury would have had to find them beyond a reasonable doubt. It is not clear in a circumstance involving those other types of factors what North Carolina’s appellate courts might have to say about the requisite notice. Clearly, Wlliams holds that the ten-day notice requirement in G.S. 20-179(a1)(1) does not apply to an indictment for misdemeanor driving while impaired. Yet it would be foolhardy for the State to assume that some lesser period of notice—or no notice at all—would be deemed constitutionally permissible in the case of aggravating factors other than prior convictions. Thus, the prudent course of action for the State is to provide notice of aggravating factors pursuant to G.S. 20-179(a1)(1) for all misdemeanor driving while impaired cases prosecuted in superior court.