GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
H 1
HOUSE BILL 49
Short Title: Laura's Law. |
(Public) |
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Sponsors: |
Representatives T. Moore, Hastings, Torbett, and H. Warren (Primary Sponsors). For a complete list of Sponsors, see Bill Information on the NCGA Web Site. |
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Referred to: |
Judiciary Subcommittee B, if favorable, Finance. |
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February 9, 2011
A BILL TO BE ENTITLED
AN ACT to increase the punishment for DWI offenders with three or more grossly aggravating factors, to authorize the court to require continuous alcohol monitoring for certain offenders, and to increase the court costs for DWI offenders.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 20-179 reads as rewritten:
"§ 20-179. Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and aggravating and mitigating factors; punishments.
(a) Sentencing Hearing Required. - 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 or subsequent conviction under G.S. 20-138.2B, or when any of those offenses are remanded back to district court after an appeal to superior court, the judge shall hold a sentencing hearing to determine whether there are aggravating or mitigating factors that affect the sentence to be imposed.
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(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 Aggravated Level One punishment under
subsection (g) of this section if it is determined that three or more grossly
aggravating factors apply. The judge must impose the Level One punishment
under subsection (g)(g1) of this section if it is determined that
two or more grossly aggravating factors apply. The judge must impose the Level
Two punishment under subsection (h) of this section if it is determined that
only one of the 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 16 years was in the vehicle at the time of the offense.
In imposing an Aggravated Level One, a Level One One,
or a Level 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).
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(g) Aggravated Level One Punishment. - A defendant subject to Aggravated Level One punishment may be fined up to ten thousand dollars ($10,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 120 days and a maximum term of not more than 36 months. Notwithstanding G.S. 15A-1371, a defendant sentenced to a term of imprisonment pursuant to this subsection shall not be eligible for parole. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. Subsection (k1) of this section shall not apply to a defendant sentenced pursuant to this subsection. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation. (g1) Level One Punishment. - A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
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(h1) The judge may impose, as a
condition of probation for defendants subject to Aggravated Level One, Level
One One, or Level Two punishments, that the defendant abstain
from alcohol consumption for a minimum of 30 days, to a maximum of 60 days, the
term of probation, as verified by a continuous alcohol monitoring system. The
total cost to the defendant for the continuous alcohol monitoring system may
not exceed one thousand dollars ($1,000). The defendant's abstinence from
alcohol shall be verified by a continuous alcohol monitoring system of a type
approved by the Department of Correction.
(h2) Notwithstanding
the provisions of subsection (h1), if the court finds, upon good cause shown,
that the defendant should not be required to pay the costs of the continuous
alcohol monitoring system, the court shall not impose the use of a continuous
alcohol monitoring system unless the local governmental entity responsible for
the incarceration of the defendant in the local confinement facility agrees to
pay the costs of the system.
(h3) Any fees or costs paid
pursuant to subsections (h1) or (h2) subsection (h1) of this
section shall be paid to the clerk of court for the county in which the
judgment was entered or the deferred prosecution agreement was filed. Fees or
costs collected under this subsection shall be transmitted to the entity
providing the continuous alcohol monitoring system.
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(k1) Credit for Inpatient
Treatment. - Pursuant to G.S. 15A-1351(a), the judge may order that a term
of imprisonment imposed as a condition of special probation under any level
of punishment subsection (g1), (h), (i), (j), or (k) of this section be
served as an inpatient in a facility operated or licensed by the State for the
treatment of alcoholism or substance abuse where the defendant has been
accepted for admission or commitment as an inpatient. The defendant shall bear
the expense of any treatment unless the trial judge orders that the costs be
absorbed by the State. The judge may impose restrictions on the defendant's
ability to leave the premises of the treatment facility and require that the
defendant follow the rules of the treatment facility. The judge may credit against
the active sentence imposed on a defendant the time the defendant was an
inpatient at the treatment facility, provided such treatment occurred after the
commission of the offense for which the defendant is being sentenced. This
section shall not be construed to limit the authority of the judge in
sentencing under any other provisions of law.
.…"
SECTION 2. G.S. 20-19(e) reads as rewritten:
"(e) When a person's
license is revoked under (i) G.S. 20-17(a)(2) and the person has two or
more previous offenses involving impaired driving for which the person has been
convicted, and the most recent offense occurred within the five years
immediately preceding the date of the offense for which the person's license is
being revoked, or (ii)revoked, (ii) G.S. 20-17(a)(2) and the
person was sentenced pursuant to G.S. 20-179(g) for the offense resulting
in the revocation, or (iii) G.S. 20-17(a)(9) due to a violation of
G.S. 20-141.4(a4), the revocation is permanent."
SECTION 3. G.S. 20-17.8 reads as rewritten:
"§ 20-17.8. Restoration of a license after certain driving while impaired convictions; ignition interlock.
(a) Scope. - This section applies to a person whose license was revoked as a result of a conviction of driving while impaired, G.S. 20-138.1, and:
(1) The person had
an alcohol concentration of 0.15 or more; ormore;
(2) The person has
been convicted of another offense involving impaired driving, which offense occurred
within seven years immediately preceding the date of the offense for which the
person's license has been revoked.revoked; or
(3) The person was sentenced pursuant to G.S. 20-179(g).
For purposes of subdivision (1) of this subsection, the results of a chemical analysis, as shown by an affidavit or affidavits executed pursuant to G.S. 20-16.2(c1), shall be used by the Division to determine that person's alcohol concentration.
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(b) (Effective until December 1, 2014) Ignition Interlock Required. - Except as provided in subsection (l) of this section, when the Division restores the license of a person who is subject to this section, in addition to any other restriction or condition, it shall require the person to agree to and shall indicate on the person's drivers license the following restrictions for the period designated in subsection (c):
(1) A restriction that the person may operate only a vehicle that is equipped with a functioning ignition interlock system of a type approved by the Commissioner. The Commissioner shall not unreasonably withhold approval of an ignition interlock system and shall consult with the Division of Purchase and Contract in the Department of Administration to ensure that potential vendors are not discriminated against.
(2) A requirement that the person personally activate the ignition interlock system before driving the motor vehicle.
(3) An alcohol concentration restriction as follows:
a. If the ignition interlock system is required pursuant only to subdivision (a)(1) of this section, a requirement that the person not drive with an alcohol concentration of 0.04 or greater;
b. If the ignition interlock system is required pursuant to subdivision (a)(2) or (a)(3), or subsection (a1) of this section, a requirement that the person not drive with an alcohol concentration of greater than 0.00; or
c. If the ignition interlock system is required pursuant to subdivision (a)(1) of this section, and the person has also been convicted, based on the same set of circumstances, of: (i) driving while impaired in a commercial vehicle, G.S. 20-138.2, (ii) driving while less than 21 years old after consuming alcohol or drugs, G.S. 20-138.3, (iii) a violation of G.S. 20-141.4, or (iv) manslaughter or negligent homicide resulting from the operation of a motor vehicle when the offense involved impaired driving, a requirement that the person not drive with an alcohol concentration of greater than 0.00.
(b) (Effective December 1, 2014) Ignition Interlock Required. - Except as provided in subsection (l) of this section, when the Division restores the license of a person who is subject to this section, in addition to any other restriction or condition, it shall require the person to agree to and shall indicate on the person's drivers license the following restrictions for the period designated in subsection (c):
(1) A restriction that the person may operate only a vehicle that is equipped with a functioning ignition interlock system of a type approved by the Commissioner. The Commissioner shall not unreasonably withhold approval of an ignition interlock system and shall consult with the Division of Purchase and Contract in the Department of Administration to ensure that potential vendors are not discriminated against.
(2) A requirement that the person personally activate the ignition interlock system before driving the motor vehicle.
(3) An alcohol concentration restriction as follows:
a. If the ignition interlock system is required pursuant only to subdivision (a)(1) of this section, a requirement that the person not drive with an alcohol concentration of 0.04 or greater;
b. If the ignition interlock system is required pursuant to subdivision (a)(2) or (a)(3) of this section, a requirement that the person not drive with an alcohol concentration of greater than 0.00; or
c. If the ignition interlock system is required pursuant to subdivision (a)(1) of this section, and the person has also been convicted, based on the same set of circumstances, of: (i) driving while impaired in a commercial vehicle, G.S. 20-138.2, (ii) driving while less than 21 years old after consuming alcohol or drugs, G.S. 20-138.3, (iii) a violation of G.S. 20-141.4, or (iv) manslaughter or negligent homicide resulting from the operation of a motor vehicle when the offense involved impaired driving, a requirement that the person not drive with an alcohol concentration of greater than 0.00.
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SECTION 4. G.S. 7A-304(a) reads as rewritten:
"(a) In every criminal case in the superior or district court, wherein the defendant is convicted, or enters a plea of guilty or nolo contendere, or when costs are assessed against the prosecuting witness, the following costs shall be assessed and collected, except that when the judgment imposes an active prison sentence, costs shall be assessed and collected only when the judgment specifically so provides, and that no costs may be assessed when a case is dismissed.
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(10) For support of the General Court of Justice, the sum of one hundred dollars ($100.00) is payable by a defendant convicted 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 or subsequent conviction under G.S. 20-138.2B, to be remitted to the State Treasurer. This fee shall be in addition to the fee required by subsection (4a) of this section."
SECTION 5. This act becomes effective December 1, 2011, and applies to offenses committed on or after that date.