Notice Requirement for Aggravating Factors in a DWI Case

If you face a Driving While Impaired (DWI) charge in district court, the charging document does not disclose the level of sentencing that may be imposed on conviction. Aggravating factors can significantly increase the maximum sentence on a defendant.

The prosecution must prove aggravating factors beyond a reasonable doubt. In superior court, a jury must determine the factors, with the exception of prior convictions. Before a prosecutor can rely on aggravating factors in a superior court appeal, a North Carolina statute requires notice to the defendant of the prosecution’s intention to introduce evidence of aggravating factors in the trial.

Court Decisions on the Statutory Notice Requirement for DWI Aggravating Factors

The North Carolina statutory notice requirement for aggravating factors appears in G.S. 20-179(a1)(1). It provides that if a defendant appeals a DWI district court conviction to superior court, the prosecutor must provide the defendant with at least 10 days’ notice in advance of trial of specific aggravating factors the State intends to use at trial.

In recent years, the North Carolina Court of Appeals has reviewed several cases involving issues relating to the notice requirement. In State v. Hughes (No. COA 18-967, Filed April 16, 2019), the defendant Hughes was convicted of DWI in district court. The district court sentenced him to Level One punishment, based on the presence of two grossly aggravating factors, driving with a revoked license and a prior DWI conviction. The defendant appealed to superior court for a trial de novo.

The prosecution did not provide notice to defendant Hughes of its intention to rely on aggravating factors in the superior court trial. The jury returned a guilty verdict. The superior court imposed a sentence that relied on the same two aggravating factors as the district court.

Hughes appealed to the Court of Appeals, claiming that the superior court erred in relying on the aggravating factors, because the prosecutor did not notify Hughes of its intent to prove those factors. The Court of Appeals agreed with the defendant. It concluded that the lack of notice required by the statute precluded the superior court from considering those factors in sentencing, even if evidence of the factors was presented in the prior district court proceeding. The Court of Appeals vacated the sentence and sent the case back to the lower court for resentencing.

Limitation of Statutory Notice Requirement for Aggravating Factors

At the present time, court decisions seem to impose an important limitation on the statutory notice requirement. The limitation relates to the statement at the beginning of the statutory notice provision: “If a defendant appeals to superior court…”

In the case of State v. Williams, 786 S.E.2d 419 (2016), the defendant was indicted on DWI charges in superior court. The trial court utilized the defendant’s prior convictions as aggravating factors in determining the sentence, even though the prosecution’s notice of the factors fell short of the 10-day statutory requirement. On appeal, the Court of Appeals determined that the prosecution was not bound by the statutory 10-day notice requirement.

The circumstances in the Williams case were unique. The case involved charges initiated in superior court, not an appeal to superior court as provided in the statute’s prefatory statement. As such, the decision may be limited to cases brought in superior court (rather than appealed). It also is unclear whether the holding would extend to lack of notice for aggravating factors other than prior convictions.

Effect of the Statutory Requirement and Court Decisions

While most DWI charges originate in district court, and those cases clearly are within the statutory notice requirement, some DWI charges are initiated in superior court. In view of the Williams decision, case law seems to indicate that notice of aggravating factors may not be required if charges originate in superior court. However, the law is somewhat unsettled, and an experienced criminal defense attorney may pursue a notice claim in a specific case originating in superior court if the circumstances warrant a challenge.

In cases initiated in district court, the North Carolina Administrative Office of the Courts now has a standard form (AOC-CR-338) that prosecutors use to notify defendants of the intent to prove aggravating factors in a DWI case appealed to superior court. The form may lessen the possibility that the prosecution will violate the notice provision. However, if the form (or another type of notice) is not utilized, a defendant’s attorney may be able to rely on the statute to prevent evidence of aggravating factors in sentencing in an appeal to superior court.

Defending Against North Carolina DWI Charges

Including the notice requirement for aggravating factors illustrates, DWI law includes a myriad of technical rules and issues. Some questions that arise can affect the eventual outcome of the case. That is one extremely important reason why it is absolutely essential to be represented by an experienced DWI attorney if you face any DWI charges in North Carolina.

Talk With an Experienced North Carolina DWI Attorney

Providing the best defense to DWI charges requires a North Carolina attorney who knows the law and court practices. Our criminal defense attorneys at The Twiford Law Firm have substantial experience defending against DWI charges arising from alcohol and drugs. We vigorously defend against all DWI charges in North Carolina state courts.

In addition to state court DWI charges in North Carolina, you can be charged with a DWI offense in federal court if you drive impaired in one of our state’s federally-owned national parks and protected areas. Our attorneys handle federal DWI charges as well as state DWI charges in North Carolina.

With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.