DWI, Word on the Street in NC, part II

Post from Ron:
I posted some observations earlier about the reaction of some state prosecutors in North Carolina to Blakely. I have continued to visit with prosecutors and defense attorneys around the state (part of my annual “Ron Meets Real World Tour”) and the story gets more varied and interesting by the day.

While the prosecutors in some jurisdictions in North Carolina have taken no steps yet to restore the use of aggravated range sentences, attorneys in one urban jurisdiction tell me that the District Attorney moved right away to seek aggravated range sentences in some cases. Three aspects of the new practice are worth noting here.

First, the procedure is fulsome, but not without precedent. The prosecutors allege sentencing enhancement factors in the indictment and stand ready to prove those facts to the trial jury in bifurcated proceedings (not yet explicitly authorized by statute) beyond a reasonable doubt. The details for this procedure are drawn from existing practices to prove a defendant’s status as a “habitual felon” or to prove a firearms enhancement.

Second, the practice is selective. Prosecutors are picking out higher priority cases, where the aggravated range can add some pretty substantial amount to the sentence duration (a finding of aggravated circumstances in North Carolina does not affect the available dispositions). As one might expect, more serious crimes of violence are the main targets of this effort.

Third (and for me most interesting), much of the action right now takes place in DWI cases. These crimes are sentenced outside the normal “structured sentencing” framework in North Carolina, and they depend fairly routinely on the finding of various aggravating factors after the basic conviction for driving while impaired. For instance, driving with a person under 16 years of age in the car is an aggravating factor that can increase the authorized sentence range. In this more routine reliance on enhancements, the North Carolina DWI law resembles the federal “relevant conduct” structure. It makes sense, now that I think about it, to find that most of the Blakely action in North Carolina is happening where the state system most closely resembles the federal.