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State v. Field , 75 N.C. App. 647 ( 1985 )


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  • 331 S.E.2d 221 (1985)

    STATE of North Carolina
    v.
    Peter Jones FIELD.

    No. 8410SC1028.

    Court of Appeals of North Carolina.

    July 2, 1985.

    *222 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Isaac T. Avery, III, for the State.

    Presnell & Allen by Gary Lester Presnell, for defendant-appellant.

    PHILLIPS, Judge.

    The only question presented for our determination is the constitutionality of G.S. 20-179(c), under which defendant was sentenced for driving while impaired. That statute creates three "grossly aggravating factors," one of which is that the impaired driver caused serious injury to another person; and it requires the sentencing judge upon finding one such factor to impose an active jail term of not less than seven days under subsection (h) of G.S. 20-179. It is fundamental, of course, that one charged with crime in this state is entitled as a matter of right, under both the federal and state Constitutions, to a jury trial as to every essential element of the crime charged. State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968). The thrust of defendant's argument is that since the purported fact that his impaired driving caused serious injury to another requires him to serve an active jail term under G.S. 20-179(c) and (h) the existence of that fact is an element of the crime he is being punished for and must be found by the jury, rather than the judge. We disagree. Whether defendant seriously injured another person is not an element of the crime of driving while impaired; it is a sentencing factor that the General Assembly has deemed to be important in punishing those convicted of driving while impaired. The punishment imposed for violating the law is generally not an element of the violation. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968).

    The bifurcated procedure that the legislature has established for impaired driving cases, with the jury determining whether G.S. 20-138.1 has been violated and the judge determining the length of punishment required under G.S. 20-179, is similar to procedures that have passed constitutional muster both here and in the federal courts. Our Supreme Court deemed it permissible for one convicted of kidnapping under G.S. 14-39(a) to be sentenced more severely under former G.S. *223 14-39(b) if the judge found that the victim suffered a serious injury. State v. Boone, 302 N.C. 561, 276 S.E.2d 354 (1981). And in the federal courts those found by judges to be "Dangerous Special Offenders" under 18 U.S.C. § 3575 are routinely punished more severely than other offenders. United States v. Williamson, 567 F.2d 610 (4th Cir.1977). As these and other decisions indicate, legislatures have great latitude in establishing crimes and fixing punishment for them. We do not believe that latitude has been exceeded in this instance.

    Affirmed.

    ARNOLD and COZORT, JJ., concur.