N.C.P.I.—Crim. 270.15

NOTE WELL: In a 2005 decision, the North Carolina Supreme

Court concluded that any fact that increases the penalty for a

crime beyond the prescribed presumptive range, other than the

fact of a prior conviction, must be submitted to a jury and

proved beyond a reasonable doubt. See State v. Speight, 359

N.C. 602 (1 July 2005), modifying and affirming, 602 S.E.2d 4

(N.C. Ct. App. 2004). In 2006, the General Assembly amended

N.C. Gen. Stat. § 20-179 (Session Law 2006-253). This

amendment made the statute largely conform to the Speight

decision; however, there are some differences which are

explained in Note Wells below.

The court has several options on how to proceed, including

adding the aggravating factor as an element of the offense,

bifurcating the proceeding, or in the absence of the jury

arraigning the defendant upon the special indictment or

information and advising him that he may admit the aggravating

factor alleged, deny it, or remain silent. For procedural

guidance, see, e.g., N.C. Gen. Stat. § 15A-928. In the event the

defendant admits the aggravating factor(s), a record of the plea

should be made and preserved. See N.C. Gen. Stat. § 15A-

1026.

In the event you find (have found) the defendant guilty of impaired

driving, you must then consider and answer the following question:

Do you find from the evidence beyond a reasonable doubt the

existence of the following aggravating factor(s)?

NOTE WELL: Submit to the jury the aggravating factors

supported by the evidence. N.C. Gen. Stat. § 20-179(c). Some

of these aggravating factors are self-explanatory and require no

further definition. If a factor requires additional explanation,

relevant pattern jury instructions, such as the capital sentencing

instruction, may be consulted.

The factors listed in N.C. Gen. Stat. § 20-179(c)(1)(a) and

(c)(1)(b) are not included below, because the statute specifically

notes that “whether a prior conviction exists under subdivision

(1) of the subsection shall be a matter to be determined by the

judge, and not the jury.” See also State v. Allen, 359 N.C. 425

(1 July 2005), modifying and affirming, 601 S.E.2d 299 (N.C.

Ct. App. 2004); Blakely v. Washington, 124 S. Ct. 2531 (2004).

(01) At the time of the offense, the defendant's license was revoked

pursuant to N.C. Gen. Stat. § 20-28(a1) because of [impaired driving]

[violating an ignition interlock restriction].1 2

(02) There was serious injury to another person caused by the defendant's

impaired driving at the time of the offense.

(03) At the time of the offense, the defendant was driving while a [child

under the age of eighteen years] [a person with the mental

development of a child under the age of eighteen years] [a person

with a physical disability preventing unaided exit from the vehicle] was

in the vehicle.

NOTE WELL: The factors listed in (01) through (03) above are

grossly aggravating factors. Pursuant to N.C. Gen. Stat. § 20-

179(c), the court must impose the Level One punishment under

N.C. Gen. Stat. § 20-179(g) if the jury determines that (3)

above or two other grossly aggravating factors apply. The court

must impose the Level Two punishment under N.C. Gen. Stat. §

20-179(h) if the jury does not find (3) above and determines

that only one of the grossly aggravating factors applies. In

imposing a Level One or Two punishment, the judge may

consider the aggravating and mitigating factors in N.C. Gen.

Stat. § 20-179(d), (e) in determining the appropriate sentence.

NOTE WELL: Below are listed additional aggravating factors.

Submit to the jury the aggravating factors supported by the

evidence. N.C. Gen. Stat. § 20-179(d). In contrast to N.C. Gen.

Stat. § 20-179(c)(1)(a) and (c)(1)(b), subsection (d) of the

statute does not specifically provide that prior convictions should

be determined by the judge. Accordingly, the factor listed in

N.C. Gen. Stat. § 20-179(d)(5), dealing with prior convictions, is

included as (09) below. While it is certainly acceptable to have

the jury determine the factor, it would seem that a judge could

also determine the existence of this factor, given the treatment

of prior convictions in subsection (c) and recent case law. See

State v. Allen, 359 N.C. 425 (1 July 2005), modifying and

affirming, 601 S.E.2d 299 (N.C. Ct. App. 2004); Blakely v.

Washington, 124 S. Ct. 2531 (2004). See also State v. Speight,

359 N.C. 602 (1 July 2005), modifying and affirming, 602

S.E.2d 4 (N.C. Ct. App. 2004).

NOTE WELL: For aggravating factors (04), and (06) through

(12) below, N.C. Gen. Stat. § 20-179 specifically provides that

"the conduct constituting the aggravating factor shall occur

during the same transaction or occurrence as the impaired

driving offense." The instruction's reference to "at the time of

the offense" should be suitable for most circumstances, but can

be amended if necessary to fit the circumstances of a particular

case.

(04) At the time of the offense, the defendant's faculties were grossly

impaired while driving.

(05) The defendant had an alcohol concentration of .16 or more at the time

of the offense or within a relevant time of the driving involved in this

offense.

(06) At the time of the offense, the defendant was driving especially

[recklessly] [dangerously].

(07) At the time of the offense, the defendant's negligent driving led to a

reportable accident.3

(08) At the time of the offense, the defendant was driving while defendant’s

driver's license was revoked.4

(09) The defendant has [two or more prior convictions of a motor vehicle

offense not involving impaired driving for which at least three points

are assigned under N.C. Gen. Stat. § 20-16 or for which the convicted

person's license is subject to revocation, if the convictions occurred

within five years of the date of the offense for which the defendant is

being sentenced] [one or more prior convictions of an offense

involving impaired driving that occurred more than seven years before

the date of the offense for which the defendant is being sentenced].

(10) The defendant was convicted under N.C. Gen. Stat. § 20-141.5 for

speeding while [fleeing] [attempting to elude apprehension] at the

time of the offense.

(11) The defendant was convicted under N.C. Gen. Stat. § 20-141 for

speeding by at least 30 miles per hour over the legal limit at the time

of the offense.

(12) At the time of the offense, the defendant was passing a stopped school

bus in violation of N.C. Gen. Stat. § 20-217.

NOTE WELL: If alleged in the indictment and supported by the

evidence, N.C. Gen. Stat. § 20-179(d)(9) provides for the

allegation of additional factors that aggravate the seriousness of

the offense.

NOTE WELL: If the jury finds the existence of the aggravating

factors listed in (04) through (12), the judge must consider

whether any mitigating factors are present and, if so, then

perform the weighing and balancing contemplated in N.C. Gen.

Stat. § 20-179.

If you find from the evidence beyond a reasonable doubt that (insert

aggravating factor(s) supported by the evidence), then you will write "yes"

in the space after the(se) aggravating factor(s) on the verdict sheet. If you

have found the existence of (one or more of) the aggravating factor(s) and

have written "yes" in the space after the(se) aggravating factor(s), then you

will also answer Issue One "yes" and write "yes" in the space after Issue One

on the verdict sheet.

Verdict Sheet found in attached PDF.