AN ACT to revise the definition of the term offense involving impaired driving to include the offense of driving while license revoked for impaired driving and to adjust how certain grossly aggravating factors are determined during a sentencing hearing for impaired driving.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 20‑4.01(24a) reads as rewritten:

(24a)  Offense Involving Impaired Driving. – Any of the following offenses:

a.         Impaired driving under G.S. 20‑138.1.

b.         Any offense set forth under G.S. 20‑141.4 when conviction is based upon impaired driving or a substantially similar offense under previous law.

c.         First or second degree murder under G.S. 14‑17 or involuntary manslaughter under G.S. 14‑18 when conviction is based upon impaired driving or a substantially similar offense under previous law.

d.         An offense committed in another jurisdiction which prohibits substantially similar conduct prohibited by the offenses in this subsection.

e.         A repealed or superseded offense substantially similar to impaired driving, including offenses under former G.S. 20‑138 or G.S. 20‑139.

f.          Impaired driving in a commercial motor vehicle under G.S. 20‑138.2, except that convictions of impaired driving under G.S. 20‑138.1 and G.S. 20‑138.2 arising out of the same transaction shall be considered a single conviction of an offense involving impaired driving for any purpose under this Chapter.

g.         Habitual impaired driving under G.S. 20‑138.5.

h.         Driving while license revoked for impaired driving under G.S. 20‑28(a1).

A conviction under former G.S. 20‑140(c) is not an offense involving impaired driving.

SECTION 2.  G.S. 20‑179(c) reads as rewritten:

(c)      Determining Existence of Grossly Aggravating Factors. – At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection, or whether a conviction exists under subdivision (d)(5) of this section, shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Aggravated Level One punishment under subsection (f3) of this section if it is determined that three or more grossly aggravating factors apply. The judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply. If the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies. The grossly aggravating factors are:

(1)        A prior conviction for an offense involving impaired driving if:

a.         The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.         The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c.         The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20‑38.7.

Each prior conviction is a separate grossly aggravating factor.

(2)        Driving by the defendant at the time of the offense while the defendant's driver's license was revoked pursuant to G.S. 20‑28(a1). Each revocation pursuant to G.S. 20‑28(a1) in effect at the time of the offense for which the defendant is presently being sentenced is a separate grossly aggravating factor.

(3)        Serious injury to another person caused by the defendant's impaired driving at the time of the offense. Each person seriously injured by the defendant's impaired driving at the time of the offense is a separate grossly aggravating factor.

(4)        Driving by the defendant while (i) a any of the following are in the vehicle at the time of the offense:

a.         A child under the age of 18 years, (ii) a years.

b.         A person with the mental development of a child under the age of 18 years, or (iii) a years.

c.         A person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

Each person meeting one or more of the descriptions set forth in sub‑subdivisions a. through c. of this subdivision in the vehicle at the time of the offense is a separate grossly aggravating factor.

In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) of this section in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f) of this section.

SECTION 3.  Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

SECTION 4.  This act becomes effective December 1, 2021, and applies to offenses committed on or after that date.