DWIs: For Every Nail, A Hammer?

Governor McCrory recently created a new Impaired Driving Task Force, including judges, the executive director of North Carolina’s chapter of Mothers Against Drunk Driving (MADD), and law enforcement and lawyers.

The task force is part of an effort to reform and strengthen North Carolina’s Driving While Impaired laws, especially in light of new NHTSA recommendations released in 2013 that recommend lower the BAC from .08 that qualifies as a per se violation of DWI law, and imposing interlock restrictions on larger number of people convicted of DWI offenses.

North Carolina, already has some of the toughest DWI laws in the country. Those laws, coupled with fairly lenient criminal procedures that allow the admission of evidence over defendants’ objections into court proceedings, and “no drop” policies in almost all counties, mean that a person charged with a DWI faces an uphill battle to win a not-guilty result.

Every Problem, A Nail

The mentality in North Carolina, a state that, incidentally, whose major sport (NASCAR) has its origins in Prohibition when bootleggers souped up cars to evade law enforcement in delivering moonshine to market, has been that every DWI problem is a nail, and every solution requires a hammer.

Sometimes a hammer is what’s called for: in 2011, Wake County’s District Attorney tried a local plastic surgeon who had previously had a run-in with the law in Georgia for an impaired-driving offense, with second degree murder when he killed Elena Shapiro, a ballerina with the Carolina Ballet.

Raymond Cook CarA jury did not find malice sufficient to convict Shapiro’s killer of DWI, even though he was driving more than 80 miles-per-hour in a 45 mile-per-hour zone and even though his blood alcohol concentration was more than twice the legal limit.

The ADA prosecuting the defendant in that case had an uphill battle. He did secure a conviction for felony death by motor vehicle, and Judge Osmond Smith sentenced the defendant to the maximum. But the maximum under the law as it was in 2011 meant that the defendant was on work release and home visits within two years of his conviction.

The North Carolina General Assembly was right to enhance punishments for the felony death by motor vehicle offense. Instead of trying to shoe-horn a prosecution for second degree murder, the appropriate charge was that charge, but it needed to carry a tougher sentence. It does.

Every Solution, A Hammer?

But every solution does not need to be a hammer. In fact, certain solutions require a different tool. A kneejerk “tough on DWIs” approach in North Carolina has created a misdemeanor court system, especially in our larger counties, that is bursting at its seams with DWI cases.

These cases are serious, but so are Domestic Violence, assaults, larcenies, and hit and run offenses. A sound criminal justice system is balanced. The one we have right now is unbalanced.

One solution is a carrot and stick approach: Because defendants have a constitutional right to a jury trial that cannot be stripped form them, they have leverage in a system that is focused on plea deals. If you don’t offer defendants a plea option, then defendants are in the position of either dragging out cases for an eternity, or of appealing cases when they are found guilty in District Court.

In addition, while there is no excuse for misconduct or corruption, such corruption – such as the DWI scandal in Wake County and Johnston County – is much more likely in a system that has no release valve.

The DWI Task Force needs to focus on a release valve: sometimes a DWI is a terrible mistake. And where that DWI is the only impaired driving offense, and involves no damage to property or injury to persons, that DWI needs to be treated differently than other such DWIs especially if it is resolved early.

While it is unpopular to say so, incentivizing DWI defendants to resolve their cases quickly through a plea option is one way to quickly resolve a large number of cases that are overwhelming our court system, and creating inadequate justice in other types of cases.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.