{ "id": 11239920, "name": "STATE OF NORTH CAROLINA v. MICHAEL SCOTT PARISI", "name_abbreviation": "State v. Parisi", "decision_date": "1999-10-05", "docket_number": "No. COA98-989", "first_page": "222", "last_page": "227", "citations": [ { "type": "official", "cite": "135 N.C. App. 222" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "722 A.2d 1047", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11782084, 1701940 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "1048" }, { "page": "1050" }, { "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" }, { "page": "1051" } ], "opinion_index": 0, "case_paths": [ "/a2d/722/1047-01", "/pa/555/0072-01" ] }, { "cite": "661 So.2d 1265", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7462611 ], "year": 1995, "pin_cites": [ { "page": "1268", "parenthetical": "in order to qualify as substantially similar, the South Carolina statute need not \"mirror\" the Florida statute; \"[t]he out-of-state conviction need only be 'substantially similar'... in elements and penalties[]\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/661/1265-01" ] }, { "cite": "720 A.2d 1001", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 340319 ], "year": 1998, "pin_cites": [ { "page": "1004", "parenthetical": "criminal conduct underlying prior conviction \"qualitatively similar to defendant's conduct in the instant case and, therefore, [the prior conviction] was 'substantially equivalent[]' \"" } ], "opinion_index": 0, "case_paths": [ "/nj-super/316/0592-01" ] }, { "cite": "336 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "855", "parenthetical": "citations omitted" }, { "page": "855" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519454 ], "year": 1985, "pin_cites": [ { "page": "45", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0039-01" ] }, { "cite": "399 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "516" }, { "page": "516" } ], "opinion_index": 0 }, { "cite": "48 N.Y.2d 419", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4373867 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ny-2d/48/0419-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-4.01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "(24a)(d)" }, { "page": "(24a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-179", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 513, "char_count": 11357, "ocr_confidence": 0.756, "pagerank": { "raw": 1.6068672644702267e-07, "percentile": 0.6847841322023022 }, "sha256": "6fc54731667733c97b81d957629c93b0e915c052a97406d758d3bcd30f98b993", "simhash": "1:867c17cf29eac613", "word_count": 1797 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and MARTIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL SCOTT PARISI" ], "opinions": [ { "text": "McGEE, Judge.\nDefendant entered a plea of guilty to driving while under the influence of an impairing substance in violation of N.C. Gen. Stat. \u00a7 20-138.1 on 2 April 1998. Prior to defendant\u2019s sentencing hearing, he provided the State with a copy of his case history listing from the State of New York, which showed that defendant had been convicted on 5 August 1991 of driving while ability impaired in violation of New York Vehicle and Traffic Law \u00a7 1192.1. The trial court determined that this conviction constituted a grossly aggravating factor and sentenced defendant at a Level Two punishment to a minimum term of twelve months\u2019 imprisonment. This sentence was suspended and defendant was placed on unsupervised probation for twenty-four months, the terms of which included an active sentence of seven days and the suspension of defendant\u2019s North Carolina driver\u2019s license. From this judgment defendant appeals.\nDefendant 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.\nN.C. Gen. Stat. \u00a7 20-179(c) (1993) states in part:\nThe 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:\n(1) A prior conviction for an offense involving impaired driving if:\na. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or\nb. 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.\nThe 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. N.C. Gen. Stat. \u00a7 20-4.01(24a)(d) (1993) provides that an offense involving impaired driving includes \u201c[a]n offense committed in another jurisdiction substantially equivalent to the offenses in subparagraphs a through c.\u201d Subparagraphs a through c of this section include the offenses of impaired driving, death by vehicle, second degree murder or involuntary manslaughter, provided these offenses were \u201cbased upon impaired driving or a substantially equivalent offense under previous law.\u201d N.C. Gen. Stat. \u00a7 20-4.01(24a).\nN.C. Gen. Stat. \u00a7 20-138.1 (1993) defines the offense of impaired driving as follows:\n(a) Offense. \u2014 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:\n(1) While under the influence of an impairing substance; or\n(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of O.08 or more.\nDefendant argues that New York\u2019s offense of driving while ability impaired is not \u201csubstantially equivalent\u201d to North Carolina\u2019s offense of driving while under the influence of an impairing substance. N.C. Gen. Stat. \u00a7 20-138.1; N.Y. Vehicle and Traffic Law \u00a7 1192.\nN.Y. Vehicle and Traffic Law \u00a7 1192 sets forth four different offenses prohibiting the operation of a motor vehicle after the consumption of alcohol or drugs:\n1. Driving while ability impaired. No person shall operate a motor vehicle while the person\u2019s ability to operate such motor vehicle is impaired by the consumption of alcohol.\n2. 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\u2019s blood as shown by chemical analysis of such person\u2019s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.\n3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.\n4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person\u2019s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.\nThe New York offense of \u201cdriving while ability impaired\u201d 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:\nIt 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.\nId. at 426-27, 399 N.E.2d at 516.\nIn 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:\nUnder our statutes, the consumption of alcohol, standing alone, does not render a person impaired. An effect, however slight, on the defendant\u2019s 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 \u2018drunk,\u2019 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.\nImpair is defined as \u201c[t]o weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner.\u201d Black\u2019s Law Dictionary 752 (6th ed. 1990). Appreciable is defined as \u201c[c]apable of being estimated, weighed, judged of, or recognized . . . [p]erceptibie but not a synonym of substantial.\u201d Black\u2019s Law Dictionary 101 (6th ed. 1990).\nFor a proper finding that defendant was impaired, Cruz requires that the defendant must have consumed alcohol to the point that the driver\u2019s 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\u2019s faculties must be \u201csufficient to be recognized and estimated.\u201d Harrington at 45, 336 S.E.2d at 855.\nFor the New York offense of driving while ability impaired to qualify as \u201csubstantially equivalent\u201d 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 \u201c[essentially; without material qualification[.]\u201d Black\u2019s Law Dictionary 1428 (6th ed. 1990). Equivalent is defined as \u201c[e]qual in value, force, measure[.]\u201d Black\u2019s Law Dictionary 541 (6th ed. 1990). Other jurisdictions have discussed what constitutes a \u201csubstantially equivalent\u201d offense. See State v. Oliver, 720 A.2d 1001, 1004 (N.J. Super. A.D. 1998) (criminal conduct underlying prior conviction \u201cqualitatively similar to defendant\u2019s conduct in the instant case and, therefore, [the prior conviction] was \u2018substantially equivalent[]\u2019 \u201d); O\u2019Neill v. State, 661 So.2d 1265, 1268 (Fla. App. 5 Dist. 1995) (in order to qualify as substantially similar, the South Carolina statute need not \u201cmirror\u201d the Florida statute; \u201c[t]he out-of-state conviction need only be \u2018substantially similar\u2019... in elements and penalties[]\u201d).\nIn 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 \u201cthe Maryland crime of driving while intoxicated . . . [was] an \u2018equivalent offense\u2019 to the Pennsylvania crime of driving under the influence of alcohol[.]\u201d 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 \u201cif 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[.]\u201d Id. (citation omitted). The court stated that \u201ca person was guilty of driving while intoxicated in Maryland simply if he drove or attempted to drive any vehicle while intoxicated.\u201d Id. (citation omitted). In holding that the two statutes contained substantially equivalent offenses, the court stated that \u201c[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\u201d under the Maryland statute. Id. at 1051. The court further stated that although:\nMaryland 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.\nBoth the North Carolina and the New York offenses require that a defendant be impaired to the extent that the driver\u2019s 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 \u201cnot divergent\u201d 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 \u201cimpairment\u201d under North Carolina and New York laws are not identical and the statutes do not \u201cmirror\u201d one another, O\u2019Neill at 1268, they are \u201csubstantially equivalent.\u201d N.C.G.S. \u00a7 20-138.1; N.Y. Vehicle and Traffic Law \u00a7 1192; N.C.G.S. \u00a7 20-4.01 (24a)(d). North Carolina\u2019s offense of driving while under the influence of an impairing substance and New York\u2019s offense of driving while ability impaired are \u201csubstantially equivalent\u201d offenses. The trial court did not err in determining that defendant\u2019s conviction in New York for the offense of driving while ability impaired was a grossly aggravating factor in sentencing defendant.\nAffirmed.\nJudges GREENE and MARTIN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Reuben F. Young, for the State.", "Ledford & Murray, P.C., by Joseph L. Ledford, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL SCOTT PARISI\nNo. COA98-989\n(Filed 5 October 1999)\nMotor Vehicles\u2014 driving while impaired \u2014 prior out-of-state conviction \u2014 aggravating factor \u2014 substantially equivalent offense\nIn a case involving driving while under the influence of an impairing substance under N.C.G.S. \u00a7 20-139.1, the trial court did not err in determining that defendant\u2019s conviction in New York for the offense of driving while ability impaired was a prior conviction constituting an aggravating factor for purposes of sentencing because both offenses are \u201csubstantially equivalent.\u201d\nAppeal by defendant from judgment entered 2 April 1998 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 April 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Reuben F. Young, for the State.\nLedford & Murray, P.C., by Joseph L. Ledford, for defendant-appellant." }, "file_name": "0222-01", "first_page_order": 256, "last_page_order": 261 }