Unconstitutional DWI Law Corrected After 2 Years
by Allen C. Brotherton
For almost 2 years, portions of North Carolina’s DWI sentencing provisions regarding aggravated punishment levels have been unconstitutional. A decision of the NC Court of Appeals handed down September 7, 2004 so held, and the ruling was affirmed by our Supreme Court July 1 of last year. State v. Speight, 166 N.C.App. 106, 602 S.E.2d 4 (2004), approved upon discretionary review of other issues, 359 N.C. 602, 614 S.E.2d 262 (2005). In the well-publicized legislation enacted last week, DWI sentencing has now finally been changed to comply with constitutional requirements.
Over the past 6 years, the federal and state courts have gradually reasserted the requirement of jury trial protections to the finding of factual matters that increase criminal punishment, regardless of how denominated. This means that what had come to be known as “aggravating factors” to be found by a judge at a sentencing hearing after trial are instead now seen as elements of aggravated offenses that must be subjected to the rigors of trial.
The move began with the U.S. Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi involved a defendant’s challenge to a New Jersey hate-crime statute which authorized the imposition of a 20-year sentence, instead of the otherwise applicable statutory maximum of 10 years, if the judge found that the crime was committed for a purpose that met a statutory definition of a hate crime. The Court in Apprendi found that the sentence enhancement violated the defendant’s rights arising under the entitlement to trial by jury. The Court held that (other than the existence of a prior conviction) any fact that increases the penalty beyond the otherwise applicable statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
The import of Apprendi was further explained in Ring v. Arizona, 536 U.S. 584 (2002). In Ring, the Court examined Arizona’s capital sentencing structure in which, after conviction, the trial judge alone determined the existence of aggravating factors authorizing a sentence of death. In striking down this sentencing structure, the Court stated that when “a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact – no matter how the State labels it – must be found by a jury beyond a reasonable doubt.” Ring, at 602.
Then, in Blakely v. Washington, 542 U.S. 296 (2004), the court squarely addressed the sort of structured sentencing system that had been widely adopted throughout the country (including in North Carolina), i.e., where the judge alone finds and weighs aggravating factors to determine a rigid sentencing range that is less than the overall statutory maximum, rather than increasing the maximum. In Blakely, defendant pleaded guilty to the charge of kidnapping his estranged wife, a class B felony in Washington that therefore carried a maximum punishment of 10 years. Based upon the circumstances of the facts admitted by defendant’s guilty plea standing alone, the applicable sentencing range carried a maximum sentence of 53 months. However, under the sentencing procedure the trial judge on his own then determined that the defendant had acted with deliberate cruelty, a statutory aggravating factor that moved defendant into a sentencing range that allowed a maximum of 90 months.
On appeal, the state argued that the enhancement was permissible because the sentence of 90 months was still less than the overall maximum of 10 years. The Court rejected this argument and stated that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id (emphasis in original). The Court went on to clarify this further by stating:
In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority.
Blakely at 303-4 (emphasis in original) (internal quotes and citations omitted).
In other words, these sort of facts, which were once considered mere sentencing factors, are now elements of a greater substantive offense. See United States v. Milam, 443 F.3d 382, 387 (4th Cir. 2006) (“Thus, any fact that increases the maximum penalty for a crime, even though previously treated as part of the sentencing process, must now be treated as an element of the offense, and as to that element, a defendant enjoys the protections of the Sixth Amendment.”). Thus, Blakely is not about sentencing so much as about what constitutes a crime, and then by whom and by what burden is the guilt or innocence of the defendant determined as to those elemental facts.
Based upon Blakely, the our appellate courts proceeded to hold both the felony structured sentencing and the DWI sentencing statute unconstitutional as to their provisions for finding aggravating facts (other than prior record or matters admitted by defendant). State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005); State v. Speight, 166 N.C.App. 106, 602 S.E.2d 4 (2004), approved upon discretionary review of other issues, 359 N.C. 602, 614 S.E.2d 262 (2005). In response, last year the Legislature enacted an overhaul of felony sentencing such that aggravating factors now must be charged against a defendant and must be submitted to a jury, but did nothing to address the DWI problem. Last week’s legislation has now finally also changed DWI sentencing as well. Next time, I will discuss the other huge changes to our DWI laws included in the legislation.
Allen Brotherton has been representing people charged with crimes, including traffic violations, for over 19 years. For more information, go to www.knoxlawcenter.com or call 704-315-2363 or 866-704-9059 (Toll free).
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