GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
S 2
SENATE BILL 241
Judiciary II Committee Substitute Adopted 4/4/11
Short Title: Increase DWI Penalty/Child in Vehicle. |
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Sponsors: |
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Referred to: |
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March 8, 2011
A BILL TO BE ENTITLED
AN ACT TO require that DWI sentencing be at level one if the offense occurs with a child less than eighteen years of age in the vehicle.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 20-179(c) reads as rewritten:
"(c) Determining
Existence of Grossly Aggravating Factors. - At the sentencing hearing, based
upon the evidence presented at trial and in the hearing, the judge, or the jury
in superior court, must first determine whether there are any grossly
aggravating factors in the case. Whether a prior conviction exists under
subdivision (1) of this subsection, or whether a conviction exists under
subdivision (d)(5) of this section, shall be matters to be determined by the
judge, and not the jury, in district or superior court. If the sentencing hearing
is for a case remanded back to district court from superior court, the judge
shall determine whether the defendant has been convicted of any offense that
was not considered at the initial sentencing hearing and impose the appropriate
sentence under this section. The judge must impose the Level One punishment
under subsection (g) of this section if it is determined that the grossly
aggravating factor in subdivision (4) of this subsection applies or two or
more of the other grossly aggravating factors apply. If the judge
does not find that the aggravating factor at subdivision (4) of this subsection
applies, The then the judge must impose the Level Two
punishment under subsection (h) of this section if it is determined that only
one of the other grossly aggravating factors applies. The grossly
aggravating factors are:
(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
(3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(4) Driving by the
defendant while a child under the age of 1618 years was in the
vehicle at the time of the offense.
In imposing a Level One or Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f)."
SECTION 2. This act becomes effective December 1, 2011, and applies to offenses committed on or after that date.