North Carolina Impaired Driving Indictment Look-Back Habitual Amend Misdemeanor Felony Convictions Lawyers Attorneys

by admin on October 12, 2010


Defendant Hobey Glenn White appeals his habitual impaired driving conviction, contending that the trial court erred in permitting the State to amend the indictment. The original indictment referred to defendant’s having three prior driving while impaired (“DWI”) convictions in seven years. Although seven years had previously been the “look-back” period set forth in the habitual impaired driving statute, the statute was amended prior to the date of defendant’s offense to provide for a 10-year look-back period.


Did the Trial Court err in allowing the State to amend the indictment to reflect the correct look-back period?


Defendant was charged with a violation of N.C. Gen. Stat. § 20-138.5(a), which provides that “[a] person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within 10 years of the date of this offense.” The previous version of this statute provided that in order to convict someone of habitual impaired driving, the State had to show three or more impaired driving convictions within only seven years of the date of the current offense.  In this case, the indictment listed the offense date as 2 September 2007, bringing the offense within the amended version of N.C. Gen. Stat. § 20-138.5 that provides for a 10-year look-back period. The indictment, however, alleged that defendant “within seven (7) years of the date of this offense, has been convicted of three (3) or more offenses involving impaired driving.” The indictment then alleged that defendant had three prior convictions: (1) a DWI conviction on 3 October 1997 in Pamlico County; (2) a DWI conviction on 30 May 2000 in Craven County; and (3) a DWI conviction on 24 May 2001 in Craven County.  Although N.C. Gen. Stat. § 15A-923(e) (2009) provides broadly that “[a] bill of indictment may not be amended,” our appellate courts have interpreted this provision “to mean that ‘a bill of indictment may not be amended in a manner that substantially alters the charged offense.   Defendant urges that allowing the State’s amendment to the indictment to change the look-back period from seven to 10 years effectively elevated the misdemeanor DWI charge to a felony habitual impaired driving charge. This Court has held that an amendment which results in a misdemeanor charge being elevated to a felony substantially alters the charge in the original indictment.  This Court held that “the amendment to the indictment did not substantially alter the charge set forth in the indictment” and was therefore permissible.  The indictment at all times alleged the essential elements of the crime set out in N.C. Gen. Stat. § 20-138.5(a). The indictment alleged that the defendant drove while impaired and had three prior DWI convictions within 10 years of the date of the offense. Even though the indictment mistakenly identified the relevant look-back time frame as seven years, the convictions were actually within 10 years, so the essential elements of N.C. Gen. Stat. § 20-138.5(a) were alleged.  ‘Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.  Despite this mistake, the indictment still alleged the essential elements of the crime as set forth in the statute. The language regarding the look-back period was mere surplusage that could be amended.


The amended indictment did not amount to a substantial alteration, and the trial court did not err in allowing the State to amend the indictment.


These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content


About the Author:
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts.  The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law.  The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia.  The Maryland offices are in Montgomery County & Baltimore.  The Massachusetts offices are in Boston & Cambridge.  The New York office is in New York City.  The North Carolina Office is in Charlotte, NC which is in Mecklenburg County.  The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
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