traffic ticket attorney charlotte nc

DWI SENTENCING- HOW IT WORKS

A conviction for Driving While Impaired in North Carolina can carry serious consequences. The best case scenario for someone convicted of a DWI will be court costs and fines, a suspended jail sentence, and probation with community service requirements. On the other end of the spectrum there is the possibility of up to 24 months active jail time depending on “aggravating” and “grossly aggravating” sentencing factors, discussed below.

Sentencing for a DWI in North Carolina is technical, unique, and it works differently than sentencing for other types of misdemeanors or felonies. If you are facing a DWI, it is worth your time to speak with an experienced DWI defense attorney

  • NC DWI sentencing is governed by North Carolina General Statute 20-179. Following a conviction for DWI (whether through a Guilty Plea or being found Guilty by a Judge or Jury), the Court will hold a Sentencing Hearing as required by NCGS 20-179.
  • During the hearing, the Judge (or a Jury in Superior Court) will determine whether there are any Aggravating Factors, Mitigating Factors, or Grossly Aggravating Factors in the case. The presence, or absence, of these factors will determine the level of DWI for sentencing. There are currently six different levels of DWI sentencing: in order from most severe to the least severe, they are: Aggravated Level One, Level One, Level Two, Level Three, Level Four, and Level Five.
  • First, the Judge (or Jury) must determine whether there are any Grossly Aggravating Factors in the case.

Grossly Aggravating Factors include the following:

  1. A prior conviction for an offense involving impaired driving if: (a) The conviction occurred within seven years before the date of the offense of the current DWI the defendant is being sentenced for; or (b) The conviction occurred after the date of offense of the current DWI, but prior to or contemporaneously with the present DWI sentencing.
  2. (Driving by the defendant at the time of the offense while his driver’s license was revoked under 20-28, and the revocation was for impaired driving under 20-28.2(a).
  3. There was serious injury to another person caused by the defendant’s impaired driving.
  4. During the offense there was (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle.

 

  • If three or more of the above grossly aggravating factors are present in a case, Aggravated Level One punishment applies. If grossly aggravating factor #4 above is present in a case, or if two of the other grossly aggravating factors are present, then Level One punishment applies. If only one of the grossly aggravating factors above is present, and it is not #4, then Level Two punishment applies. In determining the appropriate sentence within each of these three levels, a Judge may also consider any aggravating and/or mitigating factors that may be present, as there is still wide discretion within each punishment level. 
  • If no grossly aggravating factors are present, then the Judge (or Jury) must determine whether any aggravating and/or mitigating factors are present.
  • Aggravating factors include the following:
    1. Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving.
    2. Especially reckless or dangerous driving.
    3. Negligent driving that led to a reportable accident.
    4. Driving by the defendant while his license was revoked (but not for an Impaired Driving offense).
    5. Two or more prior convictions of a vehicle offense not involving impaired driving for which at least three points are assigned under NCGS 20-16 or for which the person’s license is subject to revocation, if the convictions occurred within five years of the date of offense for the current DWI the defendant is being sentenced for, or one or more prior DWI convictions that occurred more than seven years before the date of the offense of the current DWI.
    6. Conviction under NCGS 20-141.5 of speeding by the defendant while fleeing or attempting to elude police.
    7. Conviction under NCGS 20-141 of speeding by the defendant by at least 30 mph over the legal limit.
    8. Passing a stopped school bus under NCGS 20-217.
    9. Any other factor that aggravates the seriousness of the offense.
  • Mitigating factors include the following:
    1. Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09.
    2. Slight impairment of the defendant’s faculties resulting solely from alcohol, but no chemical analysis was available to the defendant.
    3. Driving at the time that was safe and lawful except for the impairment.
    4. A safe driving record, meaning the defendant has no conviction for a motor vehicle offense for which at least 4 points are assigned under NCGS 20-16 or for which the defendant’s license is subject to revocation within 5 years of the date of offense of the DWI for which the defendant is being sentenced.
    5. The defendant’s impairment was caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
    6. The defendant voluntarily submitted to a mental health facility for an assessment after being charged with DWI, and if recommended by the facility, his or her voluntary participation in any recommended treatment.
    7. The defendant completed a substance abuse assessment, complied with any recomendations, and maintained 60 days of continuous abstinence from alcohol consumption, proven by an alcohol monitoring system.
    8. Any other factor that mitigates the seriousness of the offense.
  • If there are no grossly aggravating factors present, the Judge (or Jury) must then weigh any and all aggravating and mitigating factors present, which well determine if one is sentenced at a Level Three, Four, or Five. If the aggravating factors substantially outweigh any mitigating factors then Level Three Punishment is appropriate. If there are no aggravating or mitigating factors, or if the aggravating factors are substantially counterbalanced by the mitigating factors then Level Four Punishment applies. If the mitigating factors substantially outweigh any aggravating factors then Level Five Punishment is appropriate.
  • Each of the Six Levels of DWI Sentencing has corresponding maximum and minimum punishments associated with it that are set by North Carolina General Statute 20-179. As part of your consultation, Ryan will explain how all of the above aggravating and mitigating factors may apply to the facts of your case, and what minimum and maximum punishments you could face.