Notice of Grossly Aggravating Factors
Sentencing after a conviction for “drunk driving” in North Carolina merits careful consideration of the law and facts of the case.
The Court, under the NC DWI Laws, considers a series of “factors.”
Those considerations are defined under the law and may include: Mitigating Factors, Aggravating Factors, and Grossly Aggravating Factors.
Sometimes defense lawyers, judges, and prosecutors also refer to those as “factors in mitigation or aggravation.”
Is the State Required to Provide “Notice?”
"If you have been arrested or charged for impaired driving, it’s important you understand, from the outset, the consequences of a possible conviction."
- Danny Glover, OBX DWI Lawyer
Notice of the intent to introduce evidence of Grossly Aggravating Factors and Aggravating Factors (there are differences) is required when and if an appeal has been made to Superior Court.
There can be tactical, criminal procedure issues involved, particularly regarding DUI charges in North Carolina.
There also may be important 6th Amendment, Constitutional Rights to consider regarding “fair notice” of sentencing factors.
Experienced DWI defense attorneys very much understand the importance of paying attention to detail.
"Proper notice and the prosecutor’s failure to follow the law can mean the difference between jail and no jail."
- Danny Glover, DWI Defense Lawyer
NCGS 20-179 explains DWI sentencing in North Carolina.
That DWI law in NC, specifically N.C.G.S. Section 20-179(a1)(1), requires that if the Defendant exercises his right to a Superior Court appeal/trial, the prosecutor must provide notice within a certain period of time of the intent to introduce evidence of aggravating factors.
“Notice” relative to aggravating factors, by statute, may be accomplished by a legal filing with the Clerk of Court.
The State may also provide defense counsel its notice within the Discovery and other communications between the lawyers.
The effectiveness, applicability, and legality of “notice” is something you will want to discuss with your DWI lawyer.
Proper notice must be specific and accurate. It cannot be general in nature or leave room for interpretation.
It must also be “timely,” meaning proper notice of Aggravating Factors must be accomplished within a certain time period or the State may be deemed to have “waived” 4the ability to argue for enhanced punishment relative to those factors in aggravation.
For example, Notice of Aggravating Factors is required to be provided “no later than” ten days before (prior to) the trial.
Notice is required to provide a concise and “plain” statement of the facts that what factor or factors the State intends to present to the Court at sentencing.
Obviously, that assumes the accused is either found guilty after trial or enters a Guilty Plea at some point of the proceedings in Superior Court.
"Prior notice is not required in District Court. The State may simply provide documentation by way of a driving history or criminal record to the Court at the time of sentencing for DWI."
- Danny Glover, Outer Banks Criminal Defense Attorney
The notice of factors in aggravation must include a list of all the aggravating factors, both grossly aggravating and aggravating, the prosecutor seeks to introduce for the Court’s consideration in sentencing.
There is a special form used in such instances. It is called the Notice of Grossly Aggravating and Aggravating Factors (DWI).Can the Defendant “Waive” Notice, Even by Accident?
The requirement of proper notice, as set by statute, can be waived in North Carolina.
There are different types of grossly aggravating and factors in aggravation used in court.
They may include evidence of a prior DWI conviction or a license suspension by NCDMV due to a prior DWI.
Other factors take into consideration who was in the car at the time of the alleged driving while impaired.
Was it a child under the age of 18 at the time of the offense? Was a person with disabilities a passenger in the suspect vehicle?
The Court is also called to consider, with proper notice, whether the impaired driving resulted in an accident involving property damage or serious injury to others.Waiver of Notice of Prior DWI
The right to proper notice of a prior conviction for DWI is created by an operation of law.
It is not a constitutional right. As a statutory right, it may be waived, even inadvertently.
Waiver of notice of the State’s intent to introduce evidence of a prior DWI conviction may occur when and if:
- The Defendant, the person accused of DWI, admits to a prior conviction during trial. Ordinarily, that would take place if the Defendant provides testimony in either a pre-trial Motion or during the “case in chief.”
- The DWI defense lawyer stipulates to a prior conviction on the record.
- The Defendant failed to properly object to the Court’s consideration of a factor in aggravation not properly “noticed” by the State.
A conviction for DWI in NC is serious stuff.
If you’ve had prior run-ins with the law, you likely understanding the value and importance of good legal advice.
Danny Glover helps people with serious DWI charges that take place on the Outer Banks.
Our law firm is dedicated to helping you understand your legal rights and options.
"I cannot stress the importance of carefully considering the impact of a DWI on your future. It has become an incredibly complicated area of law."
- Danny Glover, OBX DUI lawyer
Call Danny Glover Jr. now to schedule a free consultation: (252) 299-5300