NC DWI Laws Harm Prosecutors

If you’re a Wake County Assistant District Attorney, your mandate is to prosecute crimes charged in the county, under the auspices of the elected DA of the county. If you work in one of the four Wake County general misdemeanor courtrooms, you’ll handle everything from minor traffic issues to serious misdemeanor assaults. And Driving While Impaired charges.

But it’s the DWI that’s going to define your day-to-day work, in large part because of the way the North Carolina General Assembly has structured the DWI statutes in this state. I’ve written elsewhere about how the NC DWI statutes prevent pleas, even though pleas are essential to an efficient criminal justice system.

As a matter of law – NCGS Sec. 20-138.4 – North Carolina discourages the acceptance of pleas in DWIs to lesser charges than the DWI, discourages the dismissal of DWIs, prevents the use of PJCs for DWIs, and has created a very regimented DWI sentencing scheme where a defendant’s outcome is governed by sentencing factors that must be offered by the prosecutor.

The prosecutor’s inability to even offer other concessions – such as to allow a defendant to avoid the Interlock system if he wishes to save court resources and get the case resolved fast – means that the prosecutor’s hands are tied by law and policy.

This approach to DWI law eats up enormous resources. Even a simple DWI bench trial takes at least an hour. A simple hearing will take at least 40 minutes. If the prosecutor can’t offer a plea to a defendant because the law prevents him from doing so, the prosecutor will be trying many more DWI cases than he ordinarily would have to try.

The prosecutor will win most of those DWI cases, because those are the DWIs where the defendant would’ve taken a plea had it been offered. In other words, those are the DWI cases that are weak for the defendant.

And so it will look on paper as if there’s been a high conviction rate. Because who can’t win a lot of these DWIs in District Court where the facts are plainly bad for the defendant.

But the question is: at what cost?

The cost to the prosecutor is a courtroom of 60 or 70 defendants in the morning, and another courtroom of 60 or 70 defendants in the afternoon. The cost is that other types of crimes – in particular, assaults or theft crimes – get short shrift.

I’m not excusing a DWI: but most DWI charges do not involve an accident or actual harm to a victim. Theft and larceny crimes do involve harm to a victim. If they take backseats to DWIs, those victims get something less than full justice because of a misallocation of resources.

I am not implying that prosecutors should plea every DWI. They should not. Some DWIs need to be prosecuted to trial. But by tying the prosecutor’s hands, the legislature has essentially dictated to the prosecutor how she should act in her own courtroom with respect to a very large subset of cases, which determines how the prosecutor must act with respect to other cases because of the lack of time and resources.

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.