Sentencing Guide for DWIs in North Carolina
If you are convicted of a DWI (driving while intoxicated or impaired) in North Carolina, there are many different sentences and/or penalties that you may face. In the best case, you can receive 24 hours of community service, up to $200 in fines, court costs, probation, and substance abuse education and/or treatment required to restore a suspended license (which will be suspended for one year, with limited driving privileges for school/work possible).
Of course, this is just the low end of sentences that can be faced for a North Carolina DWI. There are actually six levels of DWI sentencing in North Carolina. As outlined in the NC General Statutes § 20-179, and in order of severity (most to least), these levels are:
- Aggravated Level One
- Level One
- Level Two
- Level Three
- Level Four
- Level Five
Once you’ve been convicted of the DWI, there will be a sentencing hearing in which it will be established whether or not there were factors that are aggravating or mitigating to the case. This is how the appropriate sentencing level is decided. The State must prove beyond a reasonable doubt the existence of any aggravating or grossly aggravating factors. The defense must prove by a preponderance of evidence (a much lower standard than ‘beyond reasonable doubt’) the existence of any mitigating factors.
The judge will then determine the appropriate sentencing level by balancing the mitigating factors, aggravating factors and/or grossly aggravating factors that may be present. Some of the factors that qualify as mitigating, aggravating or grossly aggravating are described below, along with an outline of the six sentencing levels for DWI convictions in North Carolina and what criteria must be met for each sentencing level to appropriate in any given case.
Various Sentencing Factors for DWI Convictions
4 Grossly Aggravating Factors
The following four factors are considered to be “grossly aggravating” in DWI sentencing:
1) Prior Conviction
Each prior conviction is a separate factor. The prior convictions must involve impaired driving and one of the following must also be true:
- The conviction occurred within 7 years prior to the current offense OR
- The conviction occurred after the presently addressed offense, but prior to or during the same time as present sentencing OR
- The conviction occurred in district court, was appealed to a superior court, and the appeal has been withdrawn or remanded back to district court AND a new sentencing hearing has not been held (G.S. 20-38.7).
2) Revoked License for Impaired Driving
Driving while your drivers’ license has been revoked for impaired driving at the time of the offense.
3) Serious Injury to Another
The defendant’s impaired driving caused serious injury to another person.
4) Driving with Certain Passengers
The defendant had any of the following passengers in the vehicle while driving impaired at the time of the offense:
- A child under the age of 18 OR
- A person with the mental development of a child under the age of 18 OR
- A person with a physical disability that prevented unassisted exiting of the vehicle.
8+ Aggravating Factors
The aggravating factor must have occurred during the impaired driving incident at hand (except for number 5 below). The following factors are classified as “aggravating,” including eight specific factors and one catch all for anything else that might be considered aggravating to the case.
1) Gross Impairment
Gross impairment describes a driver with a BAC of 0.15+, as determined within a relevant period of time after driving. Chemical analysis results will be presented at trial or sentencing to prove this factor, without modification and with or without court approval.
2) Particularly Dangerous/Reckless Driving
3) Reportable Accident Caused by Negligent Driving
4) Driving with Revoked License
5) Prior Convictions – Not Involving Impaired Driving
This refers to a driver who has two or more prior driving convictions that do not involve impaired driving, and which were assigned at least three points under G.S. 20-16 OR convictions which resulted in a revoked license. The convictions must have occurred within five years prior to the current offense or can be impaired driving offenses that occurred more than seven years prior.
6) G.S. 20-141.5 Speeding/Fleeing Conviction
This refers to convictions of speeding in an attempt to flee/elude arrest.
7) G.S. 20-141 High Speeding Conviction
This refers to convictions for speeding at 30 or more mph over the legal limit.
8) G.S. 20-217 School Bus Passing Violation
This refers to the violation of passing a stopped school bus.
Catch All Number 9) Any other factor that aggravates the seriousness of the crime.
7+ Mitigating Factors
The seven specific factors below, plus the catch-all, are classified as “mitigating” for DWI sentencing purposes:
The following factors are classified as “mitigating,” including seven specific factors and one catch all for anything else that might be considered mitigating to the case.
1) Slight Impairment with BAC Below 0.10
This refers to being slightly impaired by alcohol alone, with a BAC at or below 0.09.
2) Slight Impairment with No Chemical Analysis
This refers to being slightly impaired by alcohol alone without an available chemical analysis.
3) Safe and Lawful Driving
This refers to an offense where the only unlawful factor was the impairment of faculties.
4) Save Driving Record
This refers to having no prior driving convictions of four or more points (G.S. 20-16) or that resulted in a revoked license within five years of the date of the current offense.
5) Prescription Drug Impairment
This refers to a situation where the driver was impaired primarily by a prescription drug that the defendant was lawfully prescribed and was found within the prescribed dosage.
6) Voluntary Participation in Mental Health Assessment/Treatment
This refers to situations where the defendant has voluntarily submitted to a mental health assessment and/or treatment after being charged with the offense.
6a) Completion of Substance Abuse Assessment, Treatment, and Continued Abstinence
This refers to the defendant’s completion of substance abuse assessment and treatment and maintaining abstinence for 60 continuous days (as per continuous alcohol monitoring system approved by the Division of Adult Correction of the Department of Public Safety).
Catch All Number 7) Any other factor that mitigates the seriousness of the crime.
Punishment Levels for DWI Convictions in North Carolina
Aggravated Level One – N.C.G.S § 20-179(f3)
This is imposed for the presence of more than two grossly aggravating factors:
- Up to $10,000 in fines
- 12 to 36 months in jail without parole
The jail time can be suspended to a minimum of 120 days, but only with an imposed condition of special probation. Said probation must include abstinence from alcohol consumptions for 120+ days in addition to substance abuse assessment, treatment, and/or education.
Level One – N.C.G.S. § 20-179(g)
This is imposed if the defendant was either accompanied by a minor child under the age of 18 at the time of the DWI offense OR if two other grossly aggravating factors are present.
- Up to $4,000 in fines
- 30 days to 24 months in jail
The jail time can be suspended to at least 30 days , but only with an imposed condition of special probation. Said probation must include abstinence from alcohol consumptions for 120+ days in addition to substance abuse assessment, treatment, and/or education.
Alternatively, the judge can reduce the minimum jail time to at least 10 days with pre-trial credit of up to 60 days off of the 120 day period given for alcohol monitoring.
Level Two – N.C.G.S. § 20-179(h)
This is imposed if only one other grossly aggravating factor is present and there were no minor children under the age of 18 in the vehicle at the time of the offense.
- Up to $2,000 in fines
- 7 days to 12 months in jail
The jail time can be suspended to at least 7 days , but only with an imposed condition of special probation. Said probation must include abstinence from alcohol consumptions for 90+ days in addition to substance abuse assessment, treatment, and/or education. 60 days of pretrial credit can be granted against the 90-day requirement.
However, if a prior DWI conviction or DWI related revoked license within the past five years exists, then the judge must also impose additional conditions, including 240 hours of community service.
Level Three – N.C.G.S. § 20-179(i)
This is imposed if there are no grossly aggravating factors, but the aggravating factors greatly outweigh the mitigating factors that are present.
- Up to $1,000 in fines
- 72 hours to 6 months in jail
The jail time can be suspended as long as the sentence includes special probation with at least 72 hours in jail and/or at least 72 hours of community service. Said probation must include substance abuse assessment, treatment, and/or education. It can also include any other lawful conditions of probation, as determined by the judge.
Level Four – N.C.G.S. § 20-179(j)
This is imposed if there are no aggravating or mitigating factors OR if the aggravating factors are reasonably counterbalanced by the mitigating factors.
- Up to $500 in fines
- 48 hours to 120 days in jail
The jail time can be suspended as long as the sentence includes special probation with at least 48 hours of jail and/or at least 48 hours of community service. Said probation must include substance abuse assessment, treatment, and/or education. It can also include any other lawful conditions of probation, as determined by the judge.
Level Five – N.C.G.S. § 20-179(k)
This is imposed if there are no aggravating or mitigating factors OR if the mitigating factors significantly outweigh any aggravating factors.
- Up to $200 in fines
- 24 hours to 120 days in jail
The jail time can be suspended as long as the sentence includes special probation with at least 24 hours of jail and/or at least 24 hours of community service. Said probation must include substance abuse assessment, treatment, and/or education. It can also include any other lawful conditions of probation, as determined by the judge.
It is important to call a DWI Attorney for Asheville DWI Cases to learn about your rights if facing a DWI charge in Asheville, NC.