Do Old DWIs Count toward Felony Prior Record Level?

Author's note: This post has been updated since its initial publication. The original version overlooked G.S. 15A-1340.11(7), a statute that is clearly relevant to the discussion. Do old (as in, pre-1997) impaired driving convictions count toward felony prior record level? My answer is that they probably do—at least back to 1983—but there is no clear guidance from the appellate courts. When Structured Sentencing was first enacted in 1994, DWIs did not count toward felony prior record level. G.S. 15A-1340.14 (1994). Only Class 1 and, later (under S.L. 1995-507), Class A1 misdemeanors counted, and Chapter 20 offenses aside from misdemeanor death by vehicle were explicitly excluded. In 1997, the General Assembly amended G.S. 15A-1340.14(b)(5) to say that prior impaired driving convictions under G.S. 20-138.1 would count for 1 point toward a person’s record. S.L. 1997-486. The effective date for the relevant part of that legislation said merely that it was “effective December 1, 1997”—with no indication about the convictions or sentences to which it applied. To avoid an ex post facto issue, however, it has always been assumed that the change would only apply to the sentencing of offenses committed on or after December 1, 1997. To apply it to earlier offenses would impermissibly increase punishment in a way that the defendant would not have been aware of at the time of his or her crime. A usage note to that effect has long been on the back of the prior record level worksheet (form AOC-CR-600). But that limitation is for the [...]