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Notice of DWI aggravating factors don't carry over.

Byline: Matt Chaney

A trial court can't use aggravating sentencing factors in a DWI case if prosecutors fail to inform the defendant of their intentions to use them as required by state law, even if the factors were introduced in an earlier proceeding, the North Carolina Court of Appeals has ruled in a case of first impression.

Brian Hughes was arrested and charged with driving while impaired in Transylvania County in 2017. He was tried in district court and found guilty, and the judge found that the state had proven two grossly aggravating sentencing factors because Hughes had been driving while his license was revoked and had previously been convicted of DWI. The judge thus imposed level one punishment, the most serious level of DWI punishment in the state.

Hughes appealed to superior court, where he was tried before a jury and again found guilty. During sentencing, the state introduced evidence of his driving record. Hughes objected because the state had failed to provide notice of its intention to seek an aggravated sentence before trial, but Transylvania County Superior Court Judge Marvin Pope again imposed level one punishment.

On appeal, Hughes argued that the state should have notified him of its intent to prove aggravating factors for sentencing in the superior court proceeding, as it had in the district court, as required by Section 20-179(a1)(1) of North Carolina's General Statutes.

The state argued that Hughes was not prejudiced by the lack of notice because he received "constructive notice" of the aggravating factors when they were used at the earlier district court proceeding, and that because Hughes didn't contest the existence of the aggravating factors, the additional notice wouldn't have changed the result at sentencing.

Judge Lucy Inman, writing for a unanimous panel, said that the state's arguments were unconvincing.

"Allowing the State to fulfill its notice obligation under Section 20-179(a1)(1) by relying on district court proceedings would render the statute effectively meaningless," Inman said. "The language of [the statute] requires notice of the State's intent to use aggravating factors in impaired driving cases appealed to superior court, even if evidence supporting those factors was presented in district court."

While there was no binding precedent addressing the effect of the state's failure to give notice under Section 20-179(a1)(1), Inman pointed to the court's 2016 decision in State v. Crook, which held that a court could not consider a defendant's prior record in sentencing without giving notice prior to trial.

"While use of sentencing factors in district court may notify a defendant of the existence of evidence supporting those factors, it does not give adequate notice of the State's intent to use those factors in a subsequent de novo proceeding, in a separate forum, potentially tried by a different prosecutor," Inman said. "The State must provide explicit notice of its intent to use aggravating factors in the superior court proceeding."

Inman said that the state's argument that proper notice wouldn't have changed the sentencing results fails to take into account that it was the superior court's error, not the state's, that matters.

"If the trial court had properly refused to apply factors for which statutory notice was not given, it could not have imposed level one punishment," Inman said. "Applying those factors prejudiced Defendant."

Kimberly Hoppin of Chapel Hill represented Hughes on appeal. Assistant Attorney General Yvonne Ricci represented the state. Neither could be reached for comment before press time.

The seven-page decision is State v. Hughes (Lawyers Weekly No. 011-103-19). The full opinion is available online at

Follow Matt Chaney on Twitter @NCLWChaney

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Author:Chaney, Matt
Publication:North Carolina Lawyers Weekly
Date:Apr 25, 2019
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