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North Carolina v. Denning5/6/1986
On 3 April 1984 defendant was convicted in District Court, Bladen County, of driving while impaired in violation of N.C.G.S. § 20-138.1 of the Safe Roads Act of 1983. He appealed to the superior court for a trial de novo and was found guilty by a jury. The trial judge, authorized by N.C.G.S. § 20-179 to impose one of five levels of punishment depending upon statutorily enumerated aggravating and mitigating factors, found one grossly aggravating factor -- that defendant had a prior conviction for a similar offense within seven years -- and imposed a Level Two punishment.
Defendant appealed to the Court of Appeals, contending that for a trial judge to consider as aggravating factors separate criminal offenses or elements of the charged offense, as permitted by N.C.G.S. §§ 20-138.1 and -179, denies the defendant his constitutional right to a trial by jury. In dicta, the Court of Appeals agreed with defendant that criminal offenses for which defendant has not been tried should be alleged in a criminal pleading and considered by a jury and cannot be used to increase punishment for the original crime charged. That court held, however, that defendant lacked standing to attack these provisions because he had not been injured by them.
though defendant's jury trial argument might have been more successfully lodged if he had been found "guilty" in the sentencing phase of other aggravating factors, such as reckless and dangerous driving, or passing a stopped school bus, which are separate criminal offenses, and for which one accused of them should be formally charged and tried, he does not now have standing to attack those portions of the statute as he was not injured directly by them.
76 N.C. App. at 157, 332 S.E.2d at 204.
We agree with the Court of Appeals that defendant has no standing to raise this issue regarding section 20-179, but we disavow its dicta. We hold that because the factors before the trial judge in determining sentencing are not elements of the offense, their consideration for purposes of sentencing is a function of the judge and therefore not susceptible to constitutional challenge based upon either the sixth amendment right to a jury trial or article I, section 24 of the North Carolina Constitution.
A defendant is entitled to a jury trial only as to every essential element of the crime charged. See State v. Lewis, 274 N.C. 438, 442, 164 S.E.2d 177, 180 (1968). The three essential elements of the offense of impaired driving are (1) driving a vehicle (2) upon any public vehicular area (3) while under the influence of an impairing substance or " fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.10 or more." N.C.G.S. § 20-138.1 (1983). The legislature deliberately separated the definition of the offense, N.C.G.S. § 20-138.1, from the statute governing sentencing, which is detailed in N.C.G.S. § 20-179.
Section 20-179 delineates five levels of punishment options ranging from a fine of $100 to $1,000 and imprisonment from twenty-four hours to twenty-four months, depending upon the presence or absence of specified grossly aggravating, aggravating, and mitigating factors. A finding of one or more grossly aggravating factors mandates punishment under Level One or Two; a balancing of other aggravating and mitigating factors requires the judge to select a punishment from among the three remaining levels. That t
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