Attempting to Drive While Impaired

Is it a crime to attempt to drive while impaired?

Consider these facts. Suppose a law enforcement officer sees a person stumble to a car outside of a bar, unlock the car, and sit down in the driver’s seat.  While the person fumbles with his keys in an attempt to put the correct one in the car’s ignition, the officer approaches the car. The officer asks the person to get out of the car. The person complies, and the officer subsequently arrests him for impaired driving.

Fast-forward to trial.  At the close of the evidence, the defendant moves to dismiss the charges, arguing that the State’s evidence is insufficient to convict him of impaired driving as he did not drive a vehicle on a street, highway, or public vehicular area while impaired. The State concedes that the defendant failed to complete the crime of DWI as he never turned on the car’s engine.  The attorney for the State argues, however, that the evidence is sufficient to convict the defendant of attempted impaired driving.  How should the judge rule?

What is attempt?  Attempt is a common law crime consisting of the following elements:

(1) the intent to commit the substantive offense,

(2) an overt act done for that purpose which goes beyond mere preparation, but falls short of the completed offense.

State v. Coble, 351 N.C. 448, 449 (2000); see generally Jessica Smith, North Carolina Crimes 67-70 (7th ed. 2012).

A conviction for an attempted crime may be based upon a charging instrument that charges a defendant with the completed crime.  State v. Sines, 158 N.C. App. 79, 83-84 (2003).

Can a person attempt to commit a strict liability offense?

To prove attempt, the State must show that the defendant formed the intent to commit the substantive offense. Defendants charged with strict liability offenses have argued that attempting a strict liability offense is a logical impossibility since the underlying crime does not require proof of the defendant’s state of mind.  The North Carolina Court of Appeals has rejected that argument, concluding that the intent required to prove intent to commit such a crime is the intent to accomplish the criminal result. Sines, 158 N.C. App. at 85-86. Thus, to prove attempted statutory rape or a statutory sexual offense—strict liability crimes that do not require proof that the defendant knew the victim’s age—the State must prove that the defendant intended to commit sexual intercourse or a sexual act.  The State is not required to prove that the defendant knew the child’s age since the defendant could be convicted of the completed crime without this knowledge.  Id. at 86.

Though the state’s appellate courts have not evaluated the proof required for attempted impaired driving, their reasoning in the statutory sex offense context would appear to require that the State prove the defendant intended to drive a vehicle on a street, highway or public vehicular area. The State would not be required to prove that the defendant intended to commit these acts while impaired as prove of knowledge of impairment is not required to establish the offense of impaired driving. See, e.g. State v. Rose, 312 N.C. 441, 445 (1984) (rejecting argument that statutory provisions defining impaired driving based on a specified alcohol concentration are void for vagueness, opining that while people may not know when their blood alcohol concentration reaches the per se level, they do “know the line exists” and “that drinking enough alcohol before or during driving may cause them to cross it”); State v. Highsmith, 173 N.C. App. 600 (2005) (concluding that the defendant “knew or should have known” that the prescription medication he consumed, Floricet, could impair him, “and was thus on notice that, by driving after taking Floricet, he risked cross[ing] over the line into the territory of proscribed conduct.”).

Punishment.  If the defendant is convicted of attempted impaired driving, how is he punished?  Driving while impaired in violation of G.S. 20-138.1 is punished under G.S. 20-179, which sets forth five levels of punishment ranging in order of severity from Level Five (least serious) to Aggravated Level One (most serious). The appropriate level of punishment is determined based on the existence of grossly aggravating, aggravating, and mitigating factors. G.S. 20-179(f1) provides that a person convicted of aiding and abetting impaired driving is subject to Level Five punishment, and excuses the judge in such a case from finding grossly aggravating, aggravating and mitigating factors.  The statute sets forth no such specific instruction for sentencing attempts.

G.S. 14-2.5 provides that “[u]nless a different classification is expressly stated,” attempts to commit a misdemeanor or felony are “punishable under the next lower classification as the offense which the offender attempted to commit.” The statute illustrates the application of this rule in several contexts, noting that an attempt to commit a Class I felony is a Class 1 misdemeanor, and an attempt to commit a Class 3 misdemeanor is a Class 3 misdemeanor as there is no lower classification.  The statute’s use of the term “classification” and its reference to specific classes of offenses make clear its application to structured sentencing offenses. As noted earlier, misdemeanor driving while impaired is not subject to structured sentencing classifications but is instead sentenced pursuant to G.S. 20-179.  It is, therefore, not clear whether G.S. 14-2.5 applies to attempted DWI, and, if it does, how it is to be applied.

Finally, a savvy defense attorney might argue that attempted DWI must be sentenced as a Class 1 misdemeanor pursuant to G.S. 14-3(a), which prescribed such punishment for any misdemeanor for which no specific punishment is prescribed by statute.

What does your experience suggest?  Would most law enforcement officers charge the defendant in this circumstance or merely warn him not to drive?  Would an officer typically wait until the defendant turned the car’s engine on, or would he approach the car earlier as this hypothetical suggests? Are attempt cases tough to prove?  How are convicted defendants sentenced?  Share what you know by sending in a comment below.

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