Opinion

State v. Vardiman

  • 146 N.C. App. 381
  • 552 S.E.2d 697
  • 2001 N.C. App. LEXIS 936
Court
Court of Appeals of North Carolina
Filed
Oct 2, 2001
Status
Published
Author
Greene
On the bench
Timmons-Goodson, John, Greene
Cited by
16 cases
Authority
More cited than 12.9%

indicating habitual impaired driving is a substantive offense with the conviction of three or more offenses within seven years of the present offense as necessary elements

How later courts described this case

  • indicating habitual impaired driving is a substantive offense with the conviction of three or more offenses within seven years of the present offense as necessary elements
  • “[T]he habitual misdemeanor assault statute was congruent in form to the habitual driving while impaired statute such that both were substantive and not ‘merely’ status offenses.”

Written by the judges who cited it.

The opinion

GREENE, Judge,

dissenting.

Because I believe prosecution for habitual impaired driving violates the prohibition against double jeopardy, I respectfully dissent.

If “a criminal offense in its entirety is an essential element of another offense[,] a defendant may not be punished for both offenses,” as punishment for both offenses violates the prohibition against double jeopardy. State v. Williams, 295 N.C. 655, 659 , 249 *388 S.E.2d 709, 713 (1978). Because habitual impaired driving is a substantive offense, not a status, State v. Priddy, 115 N.C. App. 547, 550 , 445 S.E.2d 610, 612 , disc. review denied, 337 N.C. 805 , 449 S.E.2d 751 (1994), and because convictions for three or more offenses involving impaired driving are necessary elements of the habitual impaired driving offense, N.C.G.S. § 20-138.5(a) (1999), the defense of double jeopardy bars the prosecution for habitual impaired driving, see State v. Freeland, 316 N.C. 13, 21 , 340 S.E.2d 35, 39 (1986) (double jeopardy barred prosecution of defendant for both first-degree kidnapping and underlying sexual offense); State v. Cherry, 298 N.C. 86, 113 , 257 S.E.2d 551, 567 (1979) (defendant convicted of first-degree murder under the felony-murder rule cannot also be convicted of the underlying felony), cert. denied, 446 U.S. 941 , 64 L. Ed. 2d 796 (1980).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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