State v. ParisiState v. Parisi
- Reporters:
- , ,
- Before:
- McGee
Defendant entered a plea of guilty to driving while under the influence of an impairing substance in violation of
Defendant argues that the trial court erred in determining that his conviction in New York for the offense of driving while ability impaired was a prior conviction involving impaired driving and was, therefore, a grossly aggravating factor for purposes of sentencing. We disagree.
The judge must impose the Level Two punishment under subsection (h) of this section if the judge determines that only one of the 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.
The statute lists other factors which the trial court may consider as grossly aggravating factors, but the case before us concerns only the factor listed above.
(a) Offense. — A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of O.08 or more.
Defendant argues that New York’s offense of driving while ability impaired is not “substantially equivalent” to North Carolina’s offense of driving while under the influence of an impairing substance.
N.Y. Vehicle and Traffic Law § 1192 sets forth four different offenses prohibiting the operation of a motor vehicle after the consumption of alcohol or drugs:
1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .10 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.
The New York offense of “driving while ability impaired” was defined by the Court of Appeals of New York in People v. Cruz, 48 N.Y.2d 419, 399 N.E.2d 513 (N.Y. 1979). The court stated:
It is evident from the statutory language and scheme that the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.
Id. at 426-27, 399 N.E.2d at 516.
In State v. Harrington, 78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985) (citations omitted), our Court stated in defining impairment that:
Under our statutes, the consumption of alcohol, standing alone, does not render a person impaired. An effect, however slight, on the defendant’s faculties, is not enough to render him or her impaired. Nor does the fact that defendant smells of alcohol by itself control. On the other hand, the State need not show that the defendant is ‘drunk,’ i.e., that his or her faculties are materially impaired. The effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that defendant was impaired.
Impair is defined as “[t]o weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner.” Black’s Law Dictionary 752 (6th ed. 1990). Appreciable is defined as “[c]apable of being estimated, weighed, judged of, or recognized . . . [p]erceptibie but not a synonym of substantial.” Black’s Law Dictionary 101 (6th ed. 1990).
For a proper finding that defendant was impaired, Cruz requires that the defendant must have consumed alcohol to the point that the driver’s physical and mental abilities, which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver, have actually been impaired to any extent. Cruz at 426-27, 399 N.E.2d at 516. Harrington requires that the effect on defendant’s faculties must be “sufficient to be recognized and estimated.” Harrington at 45, 336 S.E.2d at 855.
For the New York offense of driving while ability impaired to qualify as “substantially equivalent” to the North Carolina offense of driving while under the influence of an impairing substance, the respective statutes need not be identical in each and every respect. Substantially is defined as “[essentially; without material qualification[.]” Black’s Law Dictionary 1428 (6th ed. 1990). Equivalent is defined as “[e]qual in value, force, measure[.]” Black’s Law
In determining whether an offense was substantially equivalent, the Pennsylvania Supreme Court recently discussed in Com. v. Robertson, 722 A.2d 1047, 1048 (Pa. 1999) whether “the Maryland crime of driving while intoxicated . . . [was] an ‘equivalent offense’ to the Pennsylvania crime of driving under the influence of alcohol[.]” Robertson at 1048. Defendant had been convicted of driving under the influence as a repeat offender and argued on appeal that his Maryland conviction for driving while intoxicated should not have been considered as a prior conviction because it was not an equivalent offense. Id. at 1050. The court stated that a person was guilty of driving under the influence of alcohol in Pennsylvania “if he drove, operated or was in physical control of the movement of any vehicle: (1) while under the influence of alcohol to a degree which rendered him incapable of safe driving[.]” Id. (citation omitted). The court stated that “a person was guilty of driving while intoxicated in Maryland simply if he drove or attempted to drive any vehicle while intoxicated.” Id. (citation omitted). In holding that the two statutes contained substantially equivalent offenses, the court stated that “[t]he two statutes [were] not divergent simply because a showing that the person was incapable of unsafe operation of a motor vehicle was not a necessary element of proof in a prosecution” under the Maryland statute. Id. at 1051. The court further stated that although:
Maryland require[s] only a showing of intoxication, we fail to see how this renders the statutes so different that appellant cannot be said to be a repeat offender. Appellant fails to explain, and we fail to comprehend, how a person could be intoxicated and yet be capable of safe operation of a motor vehicle.
Both the North Carolina and the New York offenses require that a defendant be impaired to the extent that the driver’s ability to operate a vehicle is diminished. The tenuous difference between the two offenses is that
Harrington
requires appreciable, or perceptible impairment, whereas
Cruz
simply requires impairment to any extent. As in
Robertson,
the two statutes are “not divergent” simply because the New York offense does not require a showing of perceptible impairment in a prosecution for driving while ability impaired. Although the definitions of “impairment” under North Carolina and New York laws are not identical and the statutes do not “mirror” one another,
O’Neill
at 1268, they are “substantially equivalent.”
Affirmed.
Judges GREENE and MARTIN concur.