§ 20‑179. Sentencinghearing after conviction for impaired driving; determination of grosslyaggravating and aggravating and mitigating factors; punishments.
(a) Sentencing HearingRequired. After a conviction under G.S. 20‑138.1, G.S. 20‑138.2,a second or subsequent conviction under G.S. 20‑138.2A, or a second orsubsequent conviction under G.S. 20‑138.2B, or when any of those offensesare remanded back to district court after an appeal to superior court, thejudge shall hold a sentencing hearing to determine whether there areaggravating or mitigating factors that affect the sentence to be imposed.
(1) The court shallconsider evidence of aggravating or mitigating factors present in the offensethat make an aggravated or mitigated sentence appropriate. The State bears theburden of proving beyond a reasonable doubt that an aggravating factor exists,and the offender bears the burden of proving by a preponderance of the evidencethat a mitigating factor exists.
(2) Before the hearingthe prosecutor shall make all feasible efforts to secure the defendant's fullrecord of traffic convictions, and shall present to the judge that record forconsideration in the hearing. Upon request of the defendant, the prosecutorshall furnish the defendant or his attorney a copy of the defendant's record oftraffic convictions at a reasonable time prior to the introduction of therecord into evidence. In addition, the prosecutor shall present all otherappropriate grossly aggravating and aggravating factors of which he is aware,and the defendant or his attorney may present all appropriate mitigatingfactors. In every instance in which a valid chemical analysis is made of thedefendant, the prosecutor shall present evidence of the resulting alcoholconcentration.
(1) Notice. If thedefendant appeals to superior court, and the State intends to use one or moreaggravating factors under subsections (c) or (d) of this section, the Statemust provide the defendant with notice of its intent. The notice shall beprovided no later than 10 days prior to trial and shall contain a plain andconcise factual statement indicating the factor or factors it intends to useunder the authority of subsections (c) and (d) of this section. The notice mustlist all the aggravating factors that the State seeks to establish.
(2) Aggravating factors. The defendant may admit to the existence of an aggravating factor, and thefactor so admitted shall be treated as though it were found by a jury pursuantto the procedures in this section. If the defendant does not so admit, only ajury may determine if an aggravating factor is present. The jury impaneled forthe trial may, in the same trial, also determine if one or more aggravatingfactors is present, unless the court determines that the interests of justicerequire that a separate sentencing proceeding be used to make thatdetermination. If the court determines that a separate proceeding is required,the proceeding shall be conducted by the trial judge before the trial jury assoon as practicable after the guilty verdict is returned. The State bears theburden of proving beyond a reasonable doubt that an aggravating factor exists,and the offender bears the burden of proving by a preponderance of the evidencethat a mitigating factor exists.
(3) Convening the jury. If prior to the time that the trial jury begins its deliberations on theissue of whether one or more aggravating factors exist, any juror dies, becomesincapacitated or disqualified, or is discharged for any reason, an alternatejuror shall become a part of the jury and serve in all respects as thoseselected on the regular trial panel. An alternate juror shall become a part ofthe jury in the order in which the juror was selected. If the trial jury isunable to reconvene for a hearing on the issue of whether one or moreaggravating factors exist after having determined the guilt of the accused, thetrial judge shall impanel a new jury to determine the issue.
(4) Jury selection. Ajury selected to determine whether one or more aggravating factors exist shallbe selected in the same manner as juries are selected for the trial of criminalcases.
(a2) Jury Trial onAggravating Factors in Superior Court.
(1) Defendant admitsaggravating factor only. If the defendant admits that an aggravating factorexists, but pleads not guilty to the underlying charge, a jury shall beimpaneled to dispose of the charge only. In that case, evidence that relatessolely to the establishment of an aggravating factor shall not be admitted inthe trial.
(2) Defendant pleadsguilty to the charge only. If the defendant pleads guilty to the charge, butcontests the existence of one or more aggravating factors, a jury shall beimpaneled to determine if the aggravating factor or factors exist.
(b) Repealed by SessionLaws 1983, c. 435, s. 29.
(c) DeterminingExistence of Grossly Aggravating Factors. At the sentencing hearing, basedupon the evidence presented at trial and in the hearing, the judge, or the juryin superior court, must first determine whether there are any grosslyaggravating factors in the case. Whether a prior conviction exists undersubdivision (1) of this subsection, or whether a conviction exists undersubdivision (d)(5) of this section, shall be matters to be determined by thejudge, and not the jury, in district or superior court. If the sentencinghearing is for a case remanded back to district court from superior court, thejudge shall determine whether the defendant has been convicted of any offensethat was not considered at the initial sentencing hearing and impose theappropriate sentence under this section. The judge must impose the Level Onepunishment under subsection (g) of this section if it is determined that two ormore grossly aggravating factors apply. The judge must impose the Level Twopunishment under subsection (h) of this section if it is determined that onlyone of the grossly aggravating factors applies. The grossly aggravating factorsare:
(1) A prior convictionfor an offense involving impaired driving if:
a. The convictionoccurred within seven years before the date of the offense for which thedefendant is being sentenced; or
b. The convictionoccurs after the date of the offense for which the defendant is presently beingsentenced, but prior to or contemporaneously with the present sentencing; or
c. The convictionoccurred in district court; the case was appealed to superior court; the appealhas been withdrawn, or the case has been remanded back to district court; and anew sentencing hearing has not been held pursuant to G.S. 20‑38.7.
Eachprior conviction is a separate grossly aggravating factor.
(2) Driving by thedefendant at the time of the offense while his driver's license was revokedunder G.S. 20‑28, and the revocation was an impaired driving revocationunder G.S. 20‑28.2(a).
(3) Serious injury toanother person caused by the defendant's impaired driving at the time of theoffense.
(4) Driving by thedefendant while a child under the age of 16 years was in the vehicle at thetime of the offense.
In imposing a Level One or Twopunishment, the judge may consider the aggravating and mitigating factors insubsections (d) and (e) in determining the appropriate sentence. If there areno grossly aggravating factors in the case, the judge must weigh allaggravating and mitigating factors and impose punishment as required bysubsection (f).
(c1) Written Findings. Thecourt shall make findings of the aggravating and mitigating factors present inthe offense. If the jury finds factors in aggravation, the court shall ensurethat those findings are entered in the court's determination of sentencingfactors form or any comparable document used to record the findings ofsentencing factors. Findings shall be in writing.
(d) Aggravating Factorsto Be Weighed. The judge, or the jury in superior court, shall determinebefore sentencing under subsection (f) whether any of the aggravating factorslisted below apply to the defendant. The judge shall weigh the seriousness ofeach aggravating factor in the light of the particular circumstances of thecase. The factors are:
(1) Gross impairment ofthe defendant's faculties while driving or an alcohol concentration of 0.15 ormore within a relevant time after the driving. For purposes of thissubdivision, the results of a chemical analysis presented at trial orsentencing shall be sufficient to prove the person's alcohol concentration,shall be conclusive, and shall not be subject to modification by any party,with or without approval by the court.
(2) Especially recklessor dangerous driving.
(3) Negligent drivingthat led to a reportable accident.
(4) Driving by thedefendant while his driver's license was revoked.
(5) Two or more priorconvictions of a motor vehicle offense not involving impaired driving for whichat least three points are assigned under G.S. 20‑16 or for which theconvicted person's license is subject to revocation, if the convictionsoccurred within five years of the date of the offense for which the defendantis being sentenced, or one or more prior convictions of an offense involvingimpaired driving that occurred more than seven years before the date of theoffense for which the defendant is being sentenced.
(6) Conviction underG.S. 20‑141.5 of speeding by the defendant while fleeing or attempting toelude apprehension.
(7) Conviction underG.S. 20‑141 of speeding by the defendant by at least 30 miles per hourover the legal limit.
(8) Passing a stoppedschool bus in violation of G.S. 20‑217.
(9) Any other factorthat aggravates the seriousness of the offense.
Except for the factor insubdivision (5) the conduct constituting the aggravating factor shall occurduring the same transaction or occurrence as the impaired driving offense.
(e) Mitigating Factorsto Be Weighed. The judge shall also determine before sentencing undersubsection (f) whether any of the mitigating factors listed below apply to thedefendant. The judge shall weigh the degree of mitigation of each factor inlight of the particular circumstances of the case. The factors are:
(1) Slight impairment ofthe defendant's faculties resulting solely from alcohol, and an alcoholconcentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment ofthe defendant's faculties, resulting solely from alcohol, with no chemicalanalysis having been available to the defendant.
(3) Driving at the timeof the offense that was safe and lawful except for the impairment of thedefendant's faculties.
(4) A safe drivingrecord, with the defendant's having no conviction for any motor vehicle offensefor which at least four points are assigned under G.S. 20‑16 or for whichthe person's license is subject to revocation within five years of the date ofthe offense for which the defendant is being sentenced.
(5) Impairment of thedefendant's faculties caused primarily by a lawfully prescribed drug for anexisting medical condition, and the amount of the drug taken was within theprescribed dosage.
(6) The defendant'svoluntary submission to a mental health facility for assessment after he wascharged with the impaired driving offense for which he is being sentenced, and,if recommended by the facility, his voluntary participation in the recommendedtreatment.
(6a) Completion of a substanceabuse assessment, compliance with its recommendations, and simultaneouslymaintaining 60 days of continuous abstinence from alcohol consumption, asproven by a continuous alcohol monitoring system. The continuous alcoholmonitoring system shall be of a type approved by the Department of Correction.
(7) Any other factorthat mitigates the seriousness of the offense.
Except for the factors insubdivisions (4), (6), (6a), and (7), the conduct constituting the mitigatingfactor shall occur during the same transaction or occurrence as the impaireddriving offense.
(f) Weighing theAggravating and Mitigating Factors. If the judge or the jury in thesentencing hearing determines that there are no grossly aggravating factors,the judge shall weigh all aggravating and mitigating factors listed insubsections (d) and (e). If the judge determines that:
(1) The aggravatingfactors substantially outweigh any mitigating factors, the judge shall note inthe judgment the factors found and his finding that the defendant is subject tothe Level Three punishment and impose a punishment within the limits defined insubsection (i).
(2) There are noaggravating and mitigating factors, or that aggravating factors aresubstantially counterbalanced by mitigating factors, the judge shall note inthe judgment any factors found and the finding that the defendant is subject tothe Level Four punishment and impose a punishment within the limits defined insubsection (j).
(3) The mitigatingfactors substantially outweigh any aggravating factors, the judge shall note inthe judgment the factors found and his finding that the defendant is subject tothe Level Five punishment and impose a punishment within the limits defined insubsection (k).
It is not a mitigating factorthat the driver of the vehicle was suffering from alcoholism, drug addiction,diminished capacity, or mental disease or defect. Evidence of these matters maybe received in the sentencing hearing, however, for use by the judge informulating terms and conditions of sentence after determining which punishmentlevel shall be imposed.
(f1) Aider and AbettorPunishment. Notwithstanding any other provisions of this section, a personconvicted of impaired driving under G.S. 20‑138.1 under the common lawconcept of aiding and abetting is subject to Level Five punishment. The judgeneed not make any findings of grossly aggravating, aggravating, or mitigatingfactors in such cases.
(f2) Limit onConsolidation of Judgments. Except as provided in subsection (f1), in eachcharge of impaired driving for which there is a conviction the judge shalldetermine if the sentencing factors described in subsections (c), (d) and (e)are applicable unless the impaired driving charge is consolidated with a chargecarrying a greater punishment. Two or more impaired driving charges may not beconsolidated for judgment.
(g) Level OnePunishment. A defendant subject to Level One punishment may be fined up tofour thousand dollars ($4,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 30 days and a maximum term of notmore than 24 months. The term of imprisonment may be suspended only if acondition of special probation is imposed to require the defendant to serve aterm of imprisonment of at least 30 days. If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(h) Level TwoPunishment. A defendant subject to Level Two punishment may be fined up totwo thousand dollars ($2,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than seven days and a maximum term ofnot more than 12 months. The term of imprisonment may be suspended only if acondition of special probation is imposed to require the defendant to serve aterm of imprisonment of at least seven days. If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(h1) The judge mayimpose, as a condition of probation for defendants subject to Level One orLevel Two punishments, that the defendant abstain from alcohol consumption for aminimum of 30 days, to a maximum of 60 days, as verified by a continuousalcohol monitoring system. The total cost to the defendant for the continuousalcohol monitoring system may not exceed one thousand dollars ($1,000). Thedefendant's abstinence from alcohol shall be verified by a continuous alcoholmonitoring system of a type approved by the Department of Correction.
(h2) Notwithstanding theprovisions of subsection (h1), if the court finds, upon good cause shown, thatthe defendant should not be required to pay the costs of the continuous alcoholmonitoring system, the court shall not impose the use of a continuous alcoholmonitoring system unless the local governmental entity responsible for theincarceration of the defendant in the local confinement facility agrees to paythe costs of the system.
(h3) Any fees or costspaid pursuant to subsections (h1) or (h2) of this section shall be paid to theclerk of court for the county in which the judgment was entered or the deferredprosecution agreement was filed. Fees or costs collected under this subsectionshall be transmitted to the entity providing the continuous alcohol monitoringsystem.
(i) Level ThreePunishment. A defendant subject to Level Three punishment may be fined up toone thousand dollars ($1,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 72 hours and a maximum term ofnot more than six months. The term of imprisonment may be suspended. However,the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of at least 72 hours as a condition of special probation; or
(2) Perform communityservice for a term of at least 72 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(j) Level FourPunishment. A defendant subject to Level Four punishment may be fined up tofive hundred dollars ($500.00) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 48 hours and a maximum term ofnot more than 120 days. The term of imprisonment may be suspended. However, thesuspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of 48 hours as a condition of special probation; or
(2) Perform communityservice for a term of 48 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(k) Level FivePunishment. A defendant subject to Level Five punishment may be fined up totwo hundred dollars ($200.00) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 24 hours and a maximum term ofnot more than 60 days. The term of imprisonment may be suspended. However, thesuspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of 24 hours as a condition of special probation; or
(2) Perform communityservice for a term of 24 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(k1) Credit for InpatientTreatment. Pursuant to G.S. 15A‑1351(a), the judge may order that aterm of imprisonment imposed as a condition of special probation under anylevel of punishment be served as an inpatient in a facility operated orlicensed by the State for the treatment of alcoholism or substance abuse wherethe defendant has been accepted for admission or commitment as an inpatient.The defendant shall bear the expense of any treatment unless the trial judgeorders that the costs be absorbed by the State. The judge may imposerestrictions on the defendant's ability to leave the premises of the treatmentfacility and require that the defendant follow the rules of the treatmentfacility. The judge may credit against the active sentence imposed on adefendant the time the defendant was an inpatient at the treatment facility,provided such treatment occurred after the commission of the offense for whichthe defendant is being sentenced. This section shall not be construed to limitthe authority of the judge in sentencing under any other provisions of law.
(l) Repealed bySession Laws 1989, c. 691.
(m) Repealed by SessionLaws 1995, c. 496, s. 2.
(n) Time Limits forPerformance of Community Service. If the judgment requires the defendant toperform a specified number of hours of community service, a minimum of 24 hoursmust be ordered.
(o) EvidentiaryStandards; Proof of Prior Convictions. In the sentencing hearing, the Stateshall prove any grossly aggravating or aggravating factor beyond a reasonabledoubt, and the defendant shall prove any mitigating factor by the greaterweight of the evidence. Evidence adduced by either party at trial may beutilized in the sentencing hearing. Except as modified by this section, theprocedure in G.S. 15A‑1334(b) governs. The judge may accept any evidenceas to the presence or absence of previous convictions that he finds reliablebut he shall give prima facie effect to convictions recorded by the Division orany other agency of the State of North Carolina. A copy of such convictionrecords transmitted by the police information network in general accordancewith the procedure authorized by G.S. 20‑26(b) is admissible in evidencewithout further authentication. If the judge decides to impose an activesentence of imprisonment that would not have been imposed but for a prior convictionof an offense, the judge shall afford the defendant an opportunity to introduceevidence that the prior conviction had been obtained in a case in which he wasindigent, had no counsel, and had not waived his right to counsel. If thedefendant proves by the preponderance of the evidence all three above factsconcerning the prior case, the conviction may not be used as a grosslyaggravating or aggravating factor.
(p) Limit onAmelioration of Punishment. For active terms of imprisonment imposed underthis section:
(1) The judge may notgive credit to the defendant for the first 24 hours of time spent inincarceration pending trial.
(2) The defendant shallserve the mandatory minimum period of imprisonment and good or gain time creditmay not be used to reduce that mandatory minimum period.
(3) The defendant maynot be released on parole unless he is otherwise eligible, has served themandatory minimum period of imprisonment, and has obtained a substance abuseassessment and completed any recommended treatment or training program.
With respect to the minimum orspecific term of imprisonment imposed as a condition of special probation underthis section, the judge may not give credit to the defendant for the first 24hours of time spent in incarceration pending trial.
(q) Repealed by SessionLaws 1991, c. 726, s. 20.
(r) SupervisedProbation Terminated. Unless a judge in his discretion determines thatsupervised probation is necessary, and includes in the record that he hasreceived evidence and finds as a fact that supervised probation is necessary,and states in his judgment that supervised probation is necessary, a defendantconvicted of an offense of impaired driving shall be placed on unsupervisedprobation if he meets three conditions. These conditions are that he has notbeen convicted of an offense of impaired driving within the seven yearspreceding the date of this offense for which he is sentenced, that thedefendant is sentenced under subsections (i), (j), and (k) of this section, andhas obtained any necessary substance abuse assessment and completed anyrecommended treatment or training program.
When a judge determines inaccordance with the above procedures that a defendant should be placed onsupervised probation, the judge shall authorize the probation officer to modifythe defendant's probation by placing the defendant on unsupervised probationupon the completion by the defendant of the following conditions of hissuspended sentence:
(1) Community service;or
(2) Repealed by SessionLaws 1995 c. 496, s. 2.
(3) Payment of anyfines, court costs, and fees; or
(4) Any combination ofthese conditions.
(s) Method of ServingSentence. The judge in his discretion may order a term of imprisonment to beserved on weekends, even if the sentence cannot be served in consecutivesequence. However, if the defendant is ordered to a term of 48 hours or more,or has 48 hours or more remaining on a term of imprisonment, the defendantshall be required to serve 48 continuous hours of imprisonment to be givencredit for time served.
(1) Credit for any jailtime shall only be given hour for hour for time actually served. The jail shallmaintain a log showing number of hours served.
(2) The defendant shallbe refused entrance and shall be reported back to court if the defendantappears at the jail and has remaining in his body any alcohol as shown by analcohol screening device or controlled substance previously consumed, unlesslawfully obtained and taken in therapeutically appropriate amounts.
(3) If a defendant hasbeen reported back to court under subdivision (2) of this subsection, the courtshall hold a hearing. The defendant shall be ordered to serve his jail timeimmediately and shall not be eligible to serve jail time on weekends if thecourt determines that, at the time of his entrance to the jail,
a. The defendant hadpreviously consumed alcohol in his body as shown by an alcohol screeningdevice, or
b. The defendant had apreviously consumed controlled substance in his body.
Itshall be a defense to an immediate service of sentence of jail time andineligibility for weekend service of jail time if the court determines thatalcohol or controlled substance was lawfully obtained and was taken intherapeutically appropriate amounts.
(t) Repealed bySession Laws 1995, c. 496, s. 2. (1937, c. 407, s. 140; 1947, c. 1067, s. 18; 1967, c.510; 1969, c. 50; c. 1283, ss. 1‑5; 1971, c. 619, s. 16; c. 1133, s. 1;1975, c. 716, s. 5; 1977, c. 125; 1977, 2nd Sess., c. 1222, s. 1; 1979, c. 453,ss. 1, 2; c. 903, ss. 1, 2; 1981, c. 466, ss. 4‑6; 1983, c. 435, s. 29;1983 (Reg. Sess., 1984), c. 1101, ss. 21‑29, 36; 1985, c. 706, s. 1; 1985(Reg. Sess., 1986), c. 1014, s. 201(d); 1987, c. 139; c. 352, s. 1; c. 797, ss.1, 2; 1989, c. 548, ss. 1, 2; c. 691, ss. 1‑3, 4.1; 1989 (Reg. Sess.,1990), c. 1031, ss. 1, 2; c. 1039, s. 6; 1991, c. 636, s. 19(b), (c); c. 726,ss. 20, 21; 1993, c. 285, s. 9; 1995, c. 191, s. 3; c. 496, ss. 2‑7; c.506, ss. 11‑13; 1997‑379, ss. 2.1‑2.8; 1997‑443, s.19.26(c); 1998‑182, ss. 25, 31‑35; 2006‑253, s. 23; 2007‑165,ss. 2, 3; 2007‑493, ss. 6, 20, 26; 2009‑372, s. 14.)
§ 20‑179. Sentencinghearing after conviction for impaired driving; determination of grosslyaggravating and aggravating and mitigating factors; punishments.
(a) Sentencing HearingRequired. After a conviction under G.S. 20‑138.1, G.S. 20‑138.2,a second or subsequent conviction under G.S. 20‑138.2A, or a second orsubsequent conviction under G.S. 20‑138.2B, or when any of those offensesare remanded back to district court after an appeal to superior court, thejudge shall hold a sentencing hearing to determine whether there areaggravating or mitigating factors that affect the sentence to be imposed.
(1) The court shallconsider evidence of aggravating or mitigating factors present in the offensethat make an aggravated or mitigated sentence appropriate. The State bears theburden of proving beyond a reasonable doubt that an aggravating factor exists,and the offender bears the burden of proving by a preponderance of the evidencethat a mitigating factor exists.
(2) Before the hearingthe prosecutor shall make all feasible efforts to secure the defendant's fullrecord of traffic convictions, and shall present to the judge that record forconsideration in the hearing. Upon request of the defendant, the prosecutorshall furnish the defendant or his attorney a copy of the defendant's record oftraffic convictions at a reasonable time prior to the introduction of therecord into evidence. In addition, the prosecutor shall present all otherappropriate grossly aggravating and aggravating factors of which he is aware,and the defendant or his attorney may present all appropriate mitigatingfactors. In every instance in which a valid chemical analysis is made of thedefendant, the prosecutor shall present evidence of the resulting alcoholconcentration.
(1) Notice. If thedefendant appeals to superior court, and the State intends to use one or moreaggravating factors under subsections (c) or (d) of this section, the Statemust provide the defendant with notice of its intent. The notice shall beprovided no later than 10 days prior to trial and shall contain a plain andconcise factual statement indicating the factor or factors it intends to useunder the authority of subsections (c) and (d) of this section. The notice mustlist all the aggravating factors that the State seeks to establish.
(2) Aggravating factors. The defendant may admit to the existence of an aggravating factor, and thefactor so admitted shall be treated as though it were found by a jury pursuantto the procedures in this section. If the defendant does not so admit, only ajury may determine if an aggravating factor is present. The jury impaneled forthe trial may, in the same trial, also determine if one or more aggravatingfactors is present, unless the court determines that the interests of justicerequire that a separate sentencing proceeding be used to make thatdetermination. If the court determines that a separate proceeding is required,the proceeding shall be conducted by the trial judge before the trial jury assoon as practicable after the guilty verdict is returned. The State bears theburden of proving beyond a reasonable doubt that an aggravating factor exists,and the offender bears the burden of proving by a preponderance of the evidencethat a mitigating factor exists.
(3) Convening the jury. If prior to the time that the trial jury begins its deliberations on theissue of whether one or more aggravating factors exist, any juror dies, becomesincapacitated or disqualified, or is discharged for any reason, an alternatejuror shall become a part of the jury and serve in all respects as thoseselected on the regular trial panel. An alternate juror shall become a part ofthe jury in the order in which the juror was selected. If the trial jury isunable to reconvene for a hearing on the issue of whether one or moreaggravating factors exist after having determined the guilt of the accused, thetrial judge shall impanel a new jury to determine the issue.
(4) Jury selection. Ajury selected to determine whether one or more aggravating factors exist shallbe selected in the same manner as juries are selected for the trial of criminalcases.
(a2) Jury Trial onAggravating Factors in Superior Court.
(1) Defendant admitsaggravating factor only. If the defendant admits that an aggravating factorexists, but pleads not guilty to the underlying charge, a jury shall beimpaneled to dispose of the charge only. In that case, evidence that relatessolely to the establishment of an aggravating factor shall not be admitted inthe trial.
(2) Defendant pleadsguilty to the charge only. If the defendant pleads guilty to the charge, butcontests the existence of one or more aggravating factors, a jury shall beimpaneled to determine if the aggravating factor or factors exist.
(b) Repealed by SessionLaws 1983, c. 435, s. 29.
(c) DeterminingExistence of Grossly Aggravating Factors. At the sentencing hearing, basedupon the evidence presented at trial and in the hearing, the judge, or the juryin superior court, must first determine whether there are any grosslyaggravating factors in the case. Whether a prior conviction exists undersubdivision (1) of this subsection, or whether a conviction exists undersubdivision (d)(5) of this section, shall be matters to be determined by thejudge, and not the jury, in district or superior court. If the sentencinghearing is for a case remanded back to district court from superior court, thejudge shall determine whether the defendant has been convicted of any offensethat was not considered at the initial sentencing hearing and impose theappropriate sentence under this section. The judge must impose the Level Onepunishment under subsection (g) of this section if it is determined that two ormore grossly aggravating factors apply. The judge must impose the Level Twopunishment under subsection (h) of this section if it is determined that onlyone of the grossly aggravating factors applies. The grossly aggravating factorsare:
(1) A prior convictionfor an offense involving impaired driving if:
a. The convictionoccurred within seven years before the date of the offense for which thedefendant is being sentenced; or
b. The convictionoccurs after the date of the offense for which the defendant is presently beingsentenced, but prior to or contemporaneously with the present sentencing; or
c. The convictionoccurred in district court; the case was appealed to superior court; the appealhas been withdrawn, or the case has been remanded back to district court; and anew sentencing hearing has not been held pursuant to G.S. 20‑38.7.
Eachprior conviction is a separate grossly aggravating factor.
(2) Driving by thedefendant at the time of the offense while his driver's license was revokedunder G.S. 20‑28, and the revocation was an impaired driving revocationunder G.S. 20‑28.2(a).
(3) Serious injury toanother person caused by the defendant's impaired driving at the time of theoffense.
(4) Driving by thedefendant while a child under the age of 16 years was in the vehicle at thetime of the offense.
In imposing a Level One or Twopunishment, the judge may consider the aggravating and mitigating factors insubsections (d) and (e) in determining the appropriate sentence. If there areno grossly aggravating factors in the case, the judge must weigh allaggravating and mitigating factors and impose punishment as required bysubsection (f).
(c1) Written Findings. Thecourt shall make findings of the aggravating and mitigating factors present inthe offense. If the jury finds factors in aggravation, the court shall ensurethat those findings are entered in the court's determination of sentencingfactors form or any comparable document used to record the findings ofsentencing factors. Findings shall be in writing.
(d) Aggravating Factorsto Be Weighed. The judge, or the jury in superior court, shall determinebefore sentencing under subsection (f) whether any of the aggravating factorslisted below apply to the defendant. The judge shall weigh the seriousness ofeach aggravating factor in the light of the particular circumstances of thecase. The factors are:
(1) Gross impairment ofthe defendant's faculties while driving or an alcohol concentration of 0.15 ormore within a relevant time after the driving. For purposes of thissubdivision, the results of a chemical analysis presented at trial orsentencing shall be sufficient to prove the person's alcohol concentration,shall be conclusive, and shall not be subject to modification by any party,with or without approval by the court.
(2) Especially recklessor dangerous driving.
(3) Negligent drivingthat led to a reportable accident.
(4) Driving by thedefendant while his driver's license was revoked.
(5) Two or more priorconvictions of a motor vehicle offense not involving impaired driving for whichat least three points are assigned under G.S. 20‑16 or for which theconvicted person's license is subject to revocation, if the convictionsoccurred within five years of the date of the offense for which the defendantis being sentenced, or one or more prior convictions of an offense involvingimpaired driving that occurred more than seven years before the date of theoffense for which the defendant is being sentenced.
(6) Conviction underG.S. 20‑141.5 of speeding by the defendant while fleeing or attempting toelude apprehension.
(7) Conviction underG.S. 20‑141 of speeding by the defendant by at least 30 miles per hourover the legal limit.
(8) Passing a stoppedschool bus in violation of G.S. 20‑217.
(9) Any other factorthat aggravates the seriousness of the offense.
Except for the factor insubdivision (5) the conduct constituting the aggravating factor shall occurduring the same transaction or occurrence as the impaired driving offense.
(e) Mitigating Factorsto Be Weighed. The judge shall also determine before sentencing undersubsection (f) whether any of the mitigating factors listed below apply to thedefendant. The judge shall weigh the degree of mitigation of each factor inlight of the particular circumstances of the case. The factors are:
(1) Slight impairment ofthe defendant's faculties resulting solely from alcohol, and an alcoholconcentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment ofthe defendant's faculties, resulting solely from alcohol, with no chemicalanalysis having been available to the defendant.
(3) Driving at the timeof the offense that was safe and lawful except for the impairment of thedefendant's faculties.
(4) A safe drivingrecord, with the defendant's having no conviction for any motor vehicle offensefor which at least four points are assigned under G.S. 20‑16 or for whichthe person's license is subject to revocation within five years of the date ofthe offense for which the defendant is being sentenced.
(5) Impairment of thedefendant's faculties caused primarily by a lawfully prescribed drug for anexisting medical condition, and the amount of the drug taken was within theprescribed dosage.
(6) The defendant'svoluntary submission to a mental health facility for assessment after he wascharged with the impaired driving offense for which he is being sentenced, and,if recommended by the facility, his voluntary participation in the recommendedtreatment.
(6a) Completion of a substanceabuse assessment, compliance with its recommendations, and simultaneouslymaintaining 60 days of continuous abstinence from alcohol consumption, asproven by a continuous alcohol monitoring system. The continuous alcoholmonitoring system shall be of a type approved by the Department of Correction.
(7) Any other factorthat mitigates the seriousness of the offense.
Except for the factors insubdivisions (4), (6), (6a), and (7), the conduct constituting the mitigatingfactor shall occur during the same transaction or occurrence as the impaireddriving offense.
(f) Weighing theAggravating and Mitigating Factors. If the judge or the jury in thesentencing hearing determines that there are no grossly aggravating factors,the judge shall weigh all aggravating and mitigating factors listed insubsections (d) and (e). If the judge determines that:
(1) The aggravatingfactors substantially outweigh any mitigating factors, the judge shall note inthe judgment the factors found and his finding that the defendant is subject tothe Level Three punishment and impose a punishment within the limits defined insubsection (i).
(2) There are noaggravating and mitigating factors, or that aggravating factors aresubstantially counterbalanced by mitigating factors, the judge shall note inthe judgment any factors found and the finding that the defendant is subject tothe Level Four punishment and impose a punishment within the limits defined insubsection (j).
(3) The mitigatingfactors substantially outweigh any aggravating factors, the judge shall note inthe judgment the factors found and his finding that the defendant is subject tothe Level Five punishment and impose a punishment within the limits defined insubsection (k).
It is not a mitigating factorthat the driver of the vehicle was suffering from alcoholism, drug addiction,diminished capacity, or mental disease or defect. Evidence of these matters maybe received in the sentencing hearing, however, for use by the judge informulating terms and conditions of sentence after determining which punishmentlevel shall be imposed.
(f1) Aider and AbettorPunishment. Notwithstanding any other provisions of this section, a personconvicted of impaired driving under G.S. 20‑138.1 under the common lawconcept of aiding and abetting is subject to Level Five punishment. The judgeneed not make any findings of grossly aggravating, aggravating, or mitigatingfactors in such cases.
(f2) Limit onConsolidation of Judgments. Except as provided in subsection (f1), in eachcharge of impaired driving for which there is a conviction the judge shalldetermine if the sentencing factors described in subsections (c), (d) and (e)are applicable unless the impaired driving charge is consolidated with a chargecarrying a greater punishment. Two or more impaired driving charges may not beconsolidated for judgment.
(g) Level OnePunishment. A defendant subject to Level One punishment may be fined up tofour thousand dollars ($4,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 30 days and a maximum term of notmore than 24 months. The term of imprisonment may be suspended only if acondition of special probation is imposed to require the defendant to serve aterm of imprisonment of at least 30 days. If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(h) Level TwoPunishment. A defendant subject to Level Two punishment may be fined up totwo thousand dollars ($2,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than seven days and a maximum term ofnot more than 12 months. The term of imprisonment may be suspended only if acondition of special probation is imposed to require the defendant to serve aterm of imprisonment of at least seven days. If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(h1) The judge mayimpose, as a condition of probation for defendants subject to Level One orLevel Two punishments, that the defendant abstain from alcohol consumption for aminimum of 30 days, to a maximum of 60 days, as verified by a continuousalcohol monitoring system. The total cost to the defendant for the continuousalcohol monitoring system may not exceed one thousand dollars ($1,000). Thedefendant's abstinence from alcohol shall be verified by a continuous alcoholmonitoring system of a type approved by the Department of Correction.
(h2) Notwithstanding theprovisions of subsection (h1), if the court finds, upon good cause shown, thatthe defendant should not be required to pay the costs of the continuous alcoholmonitoring system, the court shall not impose the use of a continuous alcoholmonitoring system unless the local governmental entity responsible for theincarceration of the defendant in the local confinement facility agrees to paythe costs of the system.
(h3) Any fees or costspaid pursuant to subsections (h1) or (h2) of this section shall be paid to theclerk of court for the county in which the judgment was entered or the deferredprosecution agreement was filed. Fees or costs collected under this subsectionshall be transmitted to the entity providing the continuous alcohol monitoringsystem.
(i) Level ThreePunishment. A defendant subject to Level Three punishment may be fined up toone thousand dollars ($1,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 72 hours and a maximum term ofnot more than six months. The term of imprisonment may be suspended. However,the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of at least 72 hours as a condition of special probation; or
(2) Perform communityservice for a term of at least 72 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(j) Level FourPunishment. A defendant subject to Level Four punishment may be fined up tofive hundred dollars ($500.00) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 48 hours and a maximum term ofnot more than 120 days. The term of imprisonment may be suspended. However, thesuspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of 48 hours as a condition of special probation; or
(2) Perform communityservice for a term of 48 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(k) Level FivePunishment. A defendant subject to Level Five punishment may be fined up totwo hundred dollars ($200.00) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 24 hours and a maximum term ofnot more than 60 days. The term of imprisonment may be suspended. However, thesuspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of 24 hours as a condition of special probation; or
(2) Perform communityservice for a term of 24 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(k1) Credit for InpatientTreatment. Pursuant to G.S. 15A‑1351(a), the judge may order that aterm of imprisonment imposed as a condition of special probation under anylevel of punishment be served as an inpatient in a facility operated orlicensed by the State for the treatment of alcoholism or substance abuse wherethe defendant has been accepted for admission or commitment as an inpatient.The defendant shall bear the expense of any treatment unless the trial judgeorders that the costs be absorbed by the State. The judge may imposerestrictions on the defendant's ability to leave the premises of the treatmentfacility and require that the defendant follow the rules of the treatmentfacility. The judge may credit against the active sentence imposed on adefendant the time the defendant was an inpatient at the treatment facility,provided such treatment occurred after the commission of the offense for whichthe defendant is being sentenced. This section shall not be construed to limitthe authority of the judge in sentencing under any other provisions of law.
(l) Repealed bySession Laws 1989, c. 691.
(m) Repealed by SessionLaws 1995, c. 496, s. 2.
(n) Time Limits forPerformance of Community Service. If the judgment requires the defendant toperform a specified number of hours of community service, a minimum of 24 hoursmust be ordered.
(o) EvidentiaryStandards; Proof of Prior Convictions. In the sentencing hearing, the Stateshall prove any grossly aggravating or aggravating factor beyond a reasonabledoubt, and the defendant shall prove any mitigating factor by the greaterweight of the evidence. Evidence adduced by either party at trial may beutilized in the sentencing hearing. Except as modified by this section, theprocedure in G.S. 15A‑1334(b) governs. The judge may accept any evidenceas to the presence or absence of previous convictions that he finds reliablebut he shall give prima facie effect to convictions recorded by the Division orany other agency of the State of North Carolina. A copy of such convictionrecords transmitted by the police information network in general accordancewith the procedure authorized by G.S. 20‑26(b) is admissible in evidencewithout further authentication. If the judge decides to impose an activesentence of imprisonment that would not have been imposed but for a prior convictionof an offense, the judge shall afford the defendant an opportunity to introduceevidence that the prior conviction had been obtained in a case in which he wasindigent, had no counsel, and had not waived his right to counsel. If thedefendant proves by the preponderance of the evidence all three above factsconcerning the prior case, the conviction may not be used as a grosslyaggravating or aggravating factor.
(p) Limit onAmelioration of Punishment. For active terms of imprisonment imposed underthis section:
(1) The judge may notgive credit to the defendant for the first 24 hours of time spent inincarceration pending trial.
(2) The defendant shallserve the mandatory minimum period of imprisonment and good or gain time creditmay not be used to reduce that mandatory minimum period.
(3) The defendant maynot be released on parole unless he is otherwise eligible, has served themandatory minimum period of imprisonment, and has obtained a substance abuseassessment and completed any recommended treatment or training program.
With respect to the minimum orspecific term of imprisonment imposed as a condition of special probation underthis section, the judge may not give credit to the defendant for the first 24hours of time spent in incarceration pending trial.
(q) Repealed by SessionLaws 1991, c. 726, s. 20.
(r) SupervisedProbation Terminated. Unless a judge in his discretion determines thatsupervised probation is necessary, and includes in the record that he hasreceived evidence and finds as a fact that supervised probation is necessary,and states in his judgment that supervised probation is necessary, a defendantconvicted of an offense of impaired driving shall be placed on unsupervisedprobation if he meets three conditions. These conditions are that he has notbeen convicted of an offense of impaired driving within the seven yearspreceding the date of this offense for which he is sentenced, that thedefendant is sentenced under subsections (i), (j), and (k) of this section, andhas obtained any necessary substance abuse assessment and completed anyrecommended treatment or training program.
When a judge determines inaccordance with the above procedures that a defendant should be placed onsupervised probation, the judge shall authorize the probation officer to modifythe defendant's probation by placing the defendant on unsupervised probationupon the completion by the defendant of the following conditions of hissuspended sentence:
(1) Community service;or
(2) Repealed by SessionLaws 1995 c. 496, s. 2.
(3) Payment of anyfines, court costs, and fees; or
(4) Any combination ofthese conditions.
(s) Method of ServingSentence. The judge in his discretion may order a term of imprisonment to beserved on weekends, even if the sentence cannot be served in consecutivesequence. However, if the defendant is ordered to a term of 48 hours or more,or has 48 hours or more remaining on a term of imprisonment, the defendantshall be required to serve 48 continuous hours of imprisonment to be givencredit for time served.
(1) Credit for any jailtime shall only be given hour for hour for time actually served. The jail shallmaintain a log showing number of hours served.
(2) The defendant shallbe refused entrance and shall be reported back to court if the defendantappears at the jail and has remaining in his body any alcohol as shown by analcohol screening device or controlled substance previously consumed, unlesslawfully obtained and taken in therapeutically appropriate amounts.
(3) If a defendant hasbeen reported back to court under subdivision (2) of this subsection, the courtshall hold a hearing. The defendant shall be ordered to serve his jail timeimmediately and shall not be eligible to serve jail time on weekends if thecourt determines that, at the time of his entrance to the jail,
a. The defendant hadpreviously consumed alcohol in his body as shown by an alcohol screeningdevice, or
b. The defendant had apreviously consumed controlled substance in his body.
Itshall be a defense to an immediate service of sentence of jail time andineligibility for weekend service of jail time if the court determines thatalcohol or controlled substance was lawfully obtained and was taken intherapeutically appropriate amounts.
(t) Repealed bySession Laws 1995, c. 496, s. 2. (1937, c. 407, s. 140; 1947, c. 1067, s. 18; 1967, c.510; 1969, c. 50; c. 1283, ss. 1‑5; 1971, c. 619, s. 16; c. 1133, s. 1;1975, c. 716, s. 5; 1977, c. 125; 1977, 2nd Sess., c. 1222, s. 1; 1979, c. 453,ss. 1, 2; c. 903, ss. 1, 2; 1981, c. 466, ss. 4‑6; 1983, c. 435, s. 29;1983 (Reg. Sess., 1984), c. 1101, ss. 21‑29, 36; 1985, c. 706, s. 1; 1985(Reg. Sess., 1986), c. 1014, s. 201(d); 1987, c. 139; c. 352, s. 1; c. 797, ss.1, 2; 1989, c. 548, ss. 1, 2; c. 691, ss. 1‑3, 4.1; 1989 (Reg. Sess.,1990), c. 1031, ss. 1, 2; c. 1039, s. 6; 1991, c. 636, s. 19(b), (c); c. 726,ss. 20, 21; 1993, c. 285, s. 9; 1995, c. 191, s. 3; c. 496, ss. 2‑7; c.506, ss. 11‑13; 1997‑379, ss. 2.1‑2.8; 1997‑443, s.19.26(c); 1998‑182, ss. 25, 31‑35; 2006‑253, s. 23; 2007‑165,ss. 2, 3; 2007‑493, ss. 6, 20, 26; 2009‑372, s. 14.)
§ 20‑179. Sentencinghearing after conviction for impaired driving; determination of grosslyaggravating and aggravating and mitigating factors; punishments.
(a) Sentencing HearingRequired. After a conviction under G.S. 20‑138.1, G.S. 20‑138.2,a second or subsequent conviction under G.S. 20‑138.2A, or a second orsubsequent conviction under G.S. 20‑138.2B, or when any of those offensesare remanded back to district court after an appeal to superior court, thejudge shall hold a sentencing hearing to determine whether there areaggravating or mitigating factors that affect the sentence to be imposed.
(1) The court shallconsider evidence of aggravating or mitigating factors present in the offensethat make an aggravated or mitigated sentence appropriate. The State bears theburden of proving beyond a reasonable doubt that an aggravating factor exists,and the offender bears the burden of proving by a preponderance of the evidencethat a mitigating factor exists.
(2) Before the hearingthe prosecutor shall make all feasible efforts to secure the defendant's fullrecord of traffic convictions, and shall present to the judge that record forconsideration in the hearing. Upon request of the defendant, the prosecutorshall furnish the defendant or his attorney a copy of the defendant's record oftraffic convictions at a reasonable time prior to the introduction of therecord into evidence. In addition, the prosecutor shall present all otherappropriate grossly aggravating and aggravating factors of which he is aware,and the defendant or his attorney may present all appropriate mitigatingfactors. In every instance in which a valid chemical analysis is made of thedefendant, the prosecutor shall present evidence of the resulting alcoholconcentration.
(1) Notice. If thedefendant appeals to superior court, and the State intends to use one or moreaggravating factors under subsections (c) or (d) of this section, the Statemust provide the defendant with notice of its intent. The notice shall beprovided no later than 10 days prior to trial and shall contain a plain andconcise factual statement indicating the factor or factors it intends to useunder the authority of subsections (c) and (d) of this section. The notice mustlist all the aggravating factors that the State seeks to establish.
(2) Aggravating factors. The defendant may admit to the existence of an aggravating factor, and thefactor so admitted shall be treated as though it were found by a jury pursuantto the procedures in this section. If the defendant does not so admit, only ajury may determine if an aggravating factor is present. The jury impaneled forthe trial may, in the same trial, also determine if one or more aggravatingfactors is present, unless the court determines that the interests of justicerequire that a separate sentencing proceeding be used to make thatdetermination. If the court determines that a separate proceeding is required,the proceeding shall be conducted by the trial judge before the trial jury assoon as practicable after the guilty verdict is returned. The State bears theburden of proving beyond a reasonable doubt that an aggravating factor exists,and the offender bears the burden of proving by a preponderance of the evidencethat a mitigating factor exists.
(3) Convening the jury. If prior to the time that the trial jury begins its deliberations on theissue of whether one or more aggravating factors exist, any juror dies, becomesincapacitated or disqualified, or is discharged for any reason, an alternatejuror shall become a part of the jury and serve in all respects as thoseselected on the regular trial panel. An alternate juror shall become a part ofthe jury in the order in which the juror was selected. If the trial jury isunable to reconvene for a hearing on the issue of whether one or moreaggravating factors exist after having determined the guilt of the accused, thetrial judge shall impanel a new jury to determine the issue.
(4) Jury selection. Ajury selected to determine whether one or more aggravating factors exist shallbe selected in the same manner as juries are selected for the trial of criminalcases.
(a2) Jury Trial onAggravating Factors in Superior Court.
(1) Defendant admitsaggravating factor only. If the defendant admits that an aggravating factorexists, but pleads not guilty to the underlying charge, a jury shall beimpaneled to dispose of the charge only. In that case, evidence that relatessolely to the establishment of an aggravating factor shall not be admitted inthe trial.
(2) Defendant pleadsguilty to the charge only. If the defendant pleads guilty to the charge, butcontests the existence of one or more aggravating factors, a jury shall beimpaneled to determine if the aggravating factor or factors exist.
(b) Repealed by SessionLaws 1983, c. 435, s. 29.
(c) DeterminingExistence of Grossly Aggravating Factors. At the sentencing hearing, basedupon the evidence presented at trial and in the hearing, the judge, or the juryin superior court, must first determine whether there are any grosslyaggravating factors in the case. Whether a prior conviction exists undersubdivision (1) of this subsection, or whether a conviction exists undersubdivision (d)(5) of this section, shall be matters to be determined by thejudge, and not the jury, in district or superior court. If the sentencinghearing is for a case remanded back to district court from superior court, thejudge shall determine whether the defendant has been convicted of any offensethat was not considered at the initial sentencing hearing and impose theappropriate sentence under this section. The judge must impose the Level Onepunishment under subsection (g) of this section if it is determined that two ormore grossly aggravating factors apply. The judge must impose the Level Twopunishment under subsection (h) of this section if it is determined that onlyone of the grossly aggravating factors applies. The grossly aggravating factorsare:
(1) A prior convictionfor an offense involving impaired driving if:
a. The convictionoccurred within seven years before the date of the offense for which thedefendant is being sentenced; or
b. The convictionoccurs after the date of the offense for which the defendant is presently beingsentenced, but prior to or contemporaneously with the present sentencing; or
c. The convictionoccurred in district court; the case was appealed to superior court; the appealhas been withdrawn, or the case has been remanded back to district court; and anew sentencing hearing has not been held pursuant to G.S. 20‑38.7.
Eachprior conviction is a separate grossly aggravating factor.
(2) Driving by thedefendant at the time of the offense while his driver's license was revokedunder G.S. 20‑28, and the revocation was an impaired driving revocationunder G.S. 20‑28.2(a).
(3) Serious injury toanother person caused by the defendant's impaired driving at the time of theoffense.
(4) Driving by thedefendant while a child under the age of 16 years was in the vehicle at thetime of the offense.
In imposing a Level One or Twopunishment, the judge may consider the aggravating and mitigating factors insubsections (d) and (e) in determining the appropriate sentence. If there areno grossly aggravating factors in the case, the judge must weigh allaggravating and mitigating factors and impose punishment as required bysubsection (f).
(c1) Written Findings. Thecourt shall make findings of the aggravating and mitigating factors present inthe offense. If the jury finds factors in aggravation, the court shall ensurethat those findings are entered in the court's determination of sentencingfactors form or any comparable document used to record the findings ofsentencing factors. Findings shall be in writing.
(d) Aggravating Factorsto Be Weighed. The judge, or the jury in superior court, shall determinebefore sentencing under subsection (f) whether any of the aggravating factorslisted below apply to the defendant. The judge shall weigh the seriousness ofeach aggravating factor in the light of the particular circumstances of thecase. The factors are:
(1) Gross impairment ofthe defendant's faculties while driving or an alcohol concentration of 0.15 ormore within a relevant time after the driving. For purposes of thissubdivision, the results of a chemical analysis presented at trial orsentencing shall be sufficient to prove the person's alcohol concentration,shall be conclusive, and shall not be subject to modification by any party,with or without approval by the court.
(2) Especially recklessor dangerous driving.
(3) Negligent drivingthat led to a reportable accident.
(4) Driving by thedefendant while his driver's license was revoked.
(5) Two or more priorconvictions of a motor vehicle offense not involving impaired driving for whichat least three points are assigned under G.S. 20‑16 or for which theconvicted person's license is subject to revocation, if the convictionsoccurred within five years of the date of the offense for which the defendantis being sentenced, or one or more prior convictions of an offense involvingimpaired driving that occurred more than seven years before the date of theoffense for which the defendant is being sentenced.
(6) Conviction underG.S. 20‑141.5 of speeding by the defendant while fleeing or attempting toelude apprehension.
(7) Conviction underG.S. 20‑141 of speeding by the defendant by at least 30 miles per hourover the legal limit.
(8) Passing a stoppedschool bus in violation of G.S. 20‑217.
(9) Any other factorthat aggravates the seriousness of the offense.
Except for the factor insubdivision (5) the conduct constituting the aggravating factor shall occurduring the same transaction or occurrence as the impaired driving offense.
(e) Mitigating Factorsto Be Weighed. The judge shall also determine before sentencing undersubsection (f) whether any of the mitigating factors listed below apply to thedefendant. The judge shall weigh the degree of mitigation of each factor inlight of the particular circumstances of the case. The factors are:
(1) Slight impairment ofthe defendant's faculties resulting solely from alcohol, and an alcoholconcentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment ofthe defendant's faculties, resulting solely from alcohol, with no chemicalanalysis having been available to the defendant.
(3) Driving at the timeof the offense that was safe and lawful except for the impairment of thedefendant's faculties.
(4) A safe drivingrecord, with the defendant's having no conviction for any motor vehicle offensefor which at least four points are assigned under G.S. 20‑16 or for whichthe person's license is subject to revocation within five years of the date ofthe offense for which the defendant is being sentenced.
(5) Impairment of thedefendant's faculties caused primarily by a lawfully prescribed drug for anexisting medical condition, and the amount of the drug taken was within theprescribed dosage.
(6) The defendant'svoluntary submission to a mental health facility for assessment after he wascharged with the impaired driving offense for which he is being sentenced, and,if recommended by the facility, his voluntary participation in the recommendedtreatment.
(6a) Completion of a substanceabuse assessment, compliance with its recommendations, and simultaneouslymaintaining 60 days of continuous abstinence from alcohol consumption, asproven by a continuous alcohol monitoring system. The continuous alcoholmonitoring system shall be of a type approved by the Department of Correction.
(7) Any other factorthat mitigates the seriousness of the offense.
Except for the factors insubdivisions (4), (6), (6a), and (7), the conduct constituting the mitigatingfactor shall occur during the same transaction or occurrence as the impaireddriving offense.
(f) Weighing theAggravating and Mitigating Factors. If the judge or the jury in thesentencing hearing determines that there are no grossly aggravating factors,the judge shall weigh all aggravating and mitigating factors listed insubsections (d) and (e). If the judge determines that:
(1) The aggravatingfactors substantially outweigh any mitigating factors, the judge shall note inthe judgment the factors found and his finding that the defendant is subject tothe Level Three punishment and impose a punishment within the limits defined insubsection (i).
(2) There are noaggravating and mitigating factors, or that aggravating factors aresubstantially counterbalanced by mitigating factors, the judge shall note inthe judgment any factors found and the finding that the defendant is subject tothe Level Four punishment and impose a punishment within the limits defined insubsection (j).
(3) The mitigatingfactors substantially outweigh any aggravating factors, the judge shall note inthe judgment the factors found and his finding that the defendant is subject tothe Level Five punishment and impose a punishment within the limits defined insubsection (k).
It is not a mitigating factorthat the driver of the vehicle was suffering from alcoholism, drug addiction,diminished capacity, or mental disease or defect. Evidence of these matters maybe received in the sentencing hearing, however, for use by the judge informulating terms and conditions of sentence after determining which punishmentlevel shall be imposed.
(f1) Aider and AbettorPunishment. Notwithstanding any other provisions of this section, a personconvicted of impaired driving under G.S. 20‑138.1 under the common lawconcept of aiding and abetting is subject to Level Five punishment. The judgeneed not make any findings of grossly aggravating, aggravating, or mitigatingfactors in such cases.
(f2) Limit onConsolidation of Judgments. Except as provided in subsection (f1), in eachcharge of impaired driving for which there is a conviction the judge shalldetermine if the sentencing factors described in subsections (c), (d) and (e)are applicable unless the impaired driving charge is consolidated with a chargecarrying a greater punishment. Two or more impaired driving charges may not beconsolidated for judgment.
(g) Level OnePunishment. A defendant subject to Level One punishment may be fined up tofour thousand dollars ($4,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 30 days and a maximum term of notmore than 24 months. The term of imprisonment may be suspended only if acondition of special probation is imposed to require the defendant to serve aterm of imprisonment of at least 30 days. If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(h) Level TwoPunishment. A defendant subject to Level Two punishment may be fined up totwo thousand dollars ($2,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than seven days and a maximum term ofnot more than 12 months. The term of imprisonment may be suspended only if acondition of special probation is imposed to require the defendant to serve aterm of imprisonment of at least seven days. If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(h1) The judge mayimpose, as a condition of probation for defendants subject to Level One orLevel Two punishments, that the defendant abstain from alcohol consumption for aminimum of 30 days, to a maximum of 60 days, as verified by a continuousalcohol monitoring system. The total cost to the defendant for the continuousalcohol monitoring system may not exceed one thousand dollars ($1,000). Thedefendant's abstinence from alcohol shall be verified by a continuous alcoholmonitoring system of a type approved by the Department of Correction.
(h2) Notwithstanding theprovisions of subsection (h1), if the court finds, upon good cause shown, thatthe defendant should not be required to pay the costs of the continuous alcoholmonitoring system, the court shall not impose the use of a continuous alcoholmonitoring system unless the local governmental entity responsible for theincarceration of the defendant in the local confinement facility agrees to paythe costs of the system.
(h3) Any fees or costspaid pursuant to subsections (h1) or (h2) of this section shall be paid to theclerk of court for the county in which the judgment was entered or the deferredprosecution agreement was filed. Fees or costs collected under this subsectionshall be transmitted to the entity providing the continuous alcohol monitoringsystem.
(i) Level ThreePunishment. A defendant subject to Level Three punishment may be fined up toone thousand dollars ($1,000) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 72 hours and a maximum term ofnot more than six months. The term of imprisonment may be suspended. However,the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of at least 72 hours as a condition of special probation; or
(2) Perform communityservice for a term of at least 72 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(j) Level FourPunishment. A defendant subject to Level Four punishment may be fined up tofive hundred dollars ($500.00) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 48 hours and a maximum term ofnot more than 120 days. The term of imprisonment may be suspended. However, thesuspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of 48 hours as a condition of special probation; or
(2) Perform communityservice for a term of 48 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(k) Level FivePunishment. A defendant subject to Level Five punishment may be fined up totwo hundred dollars ($200.00) and shall be sentenced to a term of imprisonmentthat includes a minimum term of not less than 24 hours and a maximum term ofnot more than 60 days. The term of imprisonment may be suspended. However, thesuspended sentence shall include the condition that the defendant:
(1) Be imprisoned for aterm of 24 hours as a condition of special probation; or
(2) Perform communityservice for a term of 24 hours; or
(3) Repealed by SessionLaws 2006‑253, s. 23, effective December 1, 2006, and applicable tooffenses committed on or after that date.
(4) Any combination ofthese conditions.
If the defendant is placed onprobation, the judge shall impose a requirement that the defendant obtain asubstance abuse assessment and the education or treatment required by G.S. 20‑17.6for the restoration of a drivers license and as a condition of probation. Thejudge may impose any other lawful condition of probation.
(k1) Credit for InpatientTreatment. Pursuant to G.S. 15A‑1351(a), the judge may order that aterm of imprisonment imposed as a condition of special probation under anylevel of punishment be served as an inpatient in a facility operated orlicensed by the State for the treatment of alcoholism or substance abuse wherethe defendant has been accepted for admission or commitment as an inpatient.The defendant shall bear the expense of any treatment unless the trial judgeorders that the costs be absorbed by the State. The judge may imposerestrictions on the defendant's ability to leave the premises of the treatmentfacility and require that the defendant follow the rules of the treatmentfacility. The judge may credit against the active sentence imposed on adefendant the time the defendant was an inpatient at the treatment facility,provided such treatment occurred after the commission of the offense for whichthe defendant is being sentenced. This section shall not be construed to limitthe authority of the judge in sentencing under any other provisions of law.
(l) Repealed bySession Laws 1989, c. 691.
(m) Repealed by SessionLaws 1995, c. 496, s. 2.
(n) Time Limits forPerformance of Community Service. If the judgment requires the defendant toperform a specified number of hours of community service, a minimum of 24 hoursmust be ordered.
(o) EvidentiaryStandards; Proof of Prior Convictions. In the sentencing hearing, the Stateshall prove any grossly aggravating or aggravating factor beyond a reasonabledoubt, and the defendant shall prove any mitigating factor by the greaterweight of the evidence. Evidence adduced by either party at trial may beutilized in the sentencing hearing. Except as modified by this section, theprocedure in G.S. 15A‑1334(b) governs. The judge may accept any evidenceas to the presence or absence of previous convictions that he finds reliablebut he shall give prima facie effect to convictions recorded by the Division orany other agency of the State of North Carolina. A copy of such convictionrecords transmitted by the police information network in general accordancewith the procedure authorized by G.S. 20‑26(b) is admissible in evidencewithout further authentication. If the judge decides to impose an activesentence of imprisonment that would not have been imposed but for a prior convictionof an offense, the judge shall afford the defendant an opportunity to introduceevidence that the prior conviction had been obtained in a case in which he wasindigent, had no counsel, and had not waived his right to counsel. If thedefendant proves by the preponderance of the evidence all three above factsconcerning the prior case, the conviction may not be used as a grosslyaggravating or aggravating factor.
(p) Limit onAmelioration of Punishment. For active terms of imprisonment imposed underthis section:
(1) The judge may notgive credit to the defendant for the first 24 hours of time spent inincarceration pending trial.
(2) The defendant shallserve the mandatory minimum period of imprisonment and good or gain time creditmay not be used to reduce that mandatory minimum period.
(3) The defendant maynot be released on parole unless he is otherwise eligible, has served themandatory minimum period of imprisonment, and has obtained a substance abuseassessment and completed any recommended treatment or training program.
With respect to the minimum orspecific term of imprisonment imposed as a condition of special probation underthis section, the judge may not give credit to the defendant for the first 24hours of time spent in incarceration pending trial.
(q) Repealed by SessionLaws 1991, c. 726, s. 20.
(r) SupervisedProbation Terminated. Unless a judge in his discretion determines thatsupervised probation is necessary, and includes in the record that he hasreceived evidence and finds as a fact that supervised probation is necessary,and states in his judgment that supervised probation is necessary, a defendantconvicted of an offense of impaired driving shall be placed on unsupervisedprobation if he meets three conditions. These conditions are that he has notbeen convicted of an offense of impaired driving within the seven yearspreceding the date of this offense for which he is sentenced, that thedefendant is sentenced under subsections (i), (j), and (k) of this section, andhas obtained any necessary substance abuse assessment and completed anyrecommended treatment or training program.
When a judge determines inaccordance with the above procedures that a defendant should be placed onsupervised probation, the judge shall authorize the probation officer to modifythe defendant's probation by placing the defendant on unsupervised probationupon the completion by the defendant of the following conditions of hissuspended sentence:
(1) Community service;or
(2) Repealed by SessionLaws 1995 c. 496, s. 2.
(3) Payment of anyfines, court costs, and fees; or
(4) Any combination ofthese conditions.
(s) Method of ServingSentence. The judge in his discretion may order a term of imprisonment to beserved on weekends, even if the sentence cannot be served in consecutivesequence. However, if the defendant is ordered to a term of 48 hours or more,or has 48 hours or more remaining on a term of imprisonment, the defendantshall be required to serve 48 continuous hours of imprisonment to be givencredit for time served.
(1) Credit for any jailtime shall only be given hour for hour for time actually served. The jail shallmaintain a log showing number of hours served.
(2) The defendant shallbe refused entrance and shall be reported back to court if the defendantappears at the jail and has remaining in his body any alcohol as shown by analcohol screening device or controlled substance previously consumed, unlesslawfully obtained and taken in therapeutically appropriate amounts.
(3) If a defendant hasbeen reported back to court under subdivision (2) of this subsection, the courtshall hold a hearing. The defendant shall be ordered to serve his jail timeimmediately and shall not be eligible to serve jail time on weekends if thecourt determines that, at the time of his entrance to the jail,
a. The defendant hadpreviously consumed alcohol in his body as shown by an alcohol screeningdevice, or
b. The defendant had apreviously consumed controlled substance in his body.
Itshall be a defense to an immediate service of sentence of jail time andineligibility for weekend service of jail time if the court determines thatalcohol or controlled substance was lawfully obtained and was taken intherapeutically appropriate amounts.
(t) Repealed bySession Laws 1995, c. 496, s. 2. (1937, c. 407, s. 140; 1947, c. 1067, s. 18; 1967, c.510; 1969, c. 50; c. 1283, ss. 1‑5; 1971, c. 619, s. 16; c. 1133, s. 1;1975, c. 716, s. 5; 1977, c. 125; 1977, 2nd Sess., c. 1222, s. 1; 1979, c. 453,ss. 1, 2; c. 903, ss. 1, 2; 1981, c. 466, ss. 4‑6; 1983, c. 435, s. 29;1983 (Reg. Sess., 1984), c. 1101, ss. 21‑29, 36; 1985, c. 706, s. 1; 1985(Reg. Sess., 1986), c. 1014, s. 201(d); 1987, c. 139; c. 352, s. 1; c. 797, ss.1, 2; 1989, c. 548, ss. 1, 2; c. 691, ss. 1‑3, 4.1; 1989 (Reg. Sess.,1990), c. 1031, ss. 1, 2; c. 1039, s. 6; 1991, c. 636, s. 19(b), (c); c. 726,ss. 20, 21; 1993, c. 285, s. 9; 1995, c. 191, s. 3; c. 496, ss. 2‑7; c.506, ss. 11‑13; 1997‑379, ss. 2.1‑2.8; 1997‑443, s.19.26(c); 1998‑182, ss. 25, 31‑35; 2006‑253, s. 23; 2007‑165,ss. 2, 3; 2007‑493, ss. 6, 20, 26; 2009‑372, s. 14.)
