DWI Penalties If Convicted or Plead Guilty
North Carolina DWI penalties are harsh, even for a first time offense. The final punishment level will depend on any prior record of DWI as well as the circumstances surrounding the pending charge. After either pleading guilty or being convicted at trial, judges are required by law to hold a sentencing hearing during which a structured analysis of factors is used to determine which punishment level to apply.
There are currently six (6) sentencing levels. We will discuss these levels in more detail below. While DWI is usually a misdemeanor punishable under the sentencing levels below, if a DWI results in a death or serious injury, or if the driver has been convicted of multiple DWI’s, a driver may be charged with felony DWI.
In North Carolina, there are no plea negotiations permitted in DUI cases. It is “DWI or die.” The most a prosecutor can offer for a plea is a dismissal of any ancillary charges, such as speeding, open container, etc. Of course, it is the DWI charge that is the most serious and can result in a permanent criminal record for the individual. In addition to the conviction and criminal sentence determined, there are the other effects of a DWI to contend with including its effect on auto insurance and the ability to maintain a drivers’ license.
How we help to reduce DWI penalties
Our first job as your DWI lawyer is to make an assessment as to whether the State of North Carolina can prove their case against you “beyond a reasonable doubt.” We first collect and then carefully and thoroughly review all available evidence, including arrest reports, officer notes, and any video evidence. We also personally meet with the arresting officer(s) to review their recollection of your initial stop, DWI investigation, probable cause to arrest, and any implied consent breath or blood testing.
After our review of the evidence, we then meet with our clients to go over your case in full and then share our opinions on the strengths and weaknesses of the evidence. We then make our recommendations and answer all of your questions. Then, after our counsel, you decide how you want to proceed. You remain in charge of your case throughout the representation.
If you decide that you want to try your case, we prepare to take your case to trial. If you decide that a plea is in your best interests under the circumstances, then we begin establishing mitigating factors in order to get you the lowest punishment level allowed under law.
This may require getting a new substance abuse assessment and the completion of any recommended treatment. And, in more serious cases, we may suggest more intensive options such as inpatient treatment for alcohol or drug addiction issues and/or SCRAM device for alcohol monitoring. Try not to worry. We will be here to advise and guide you through the process.
Sentencing Factors Used to Determine DWI Penalties
Grossly Aggravating Factors and DWI Penalties
These are the factors that will put you in jail. Grossly Aggravating Factors are established if they are admitted, or if contested, the prosecution must prove them beyond a reasonable doubt. If three or more of the Grossly Aggravating Factors are proved, then the judge must impose the Aggravated Level One punishment.
The court must impose Level One punishment if Grossly Aggravating Factor (4) is proved or if two of the other Grossly Aggravating Factors are proven. If the court does not find that the Grossly Aggravating Factor of (4) applies, then the judge must impose Level Two punishment if it is determined that only one Grossly Aggravating Factor applies. According to G.S. 20-179(c), 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; or
(c) The conviction occurred in district court, the case was appealed to superior court, the appeal has been withdrawn, or the case has been remanded back to district court, and a new sentencing hearing has not been held.
(2) Driving by the defendant at the time of the offense while his driver’s license was revoked, and the revocation was an impaired driving revocation.
(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the offense
(4) Driving by the defendant while (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 was in the vehicle at the time of the offense.
Aggravating Factors and DWI Penalties
Aggravating Factors are weighed by the court against any mitigating factors. The presence or absence of Aggravating Factors does not automatically bind the court to any particular punishment level. The Aggravating Factors are:
(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 driver’s license was revoked.
(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6) Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of G.S. 20-217.
(9) Any other factor that aggravates the seriousness of the offense.
Mitigating Factors and DWI Penalties
Mitigating Factors are weighed by the court against any Aggravating Factors. The presence or absence of Mitigating Factors does not automatically bind the court to any particular punishment level. The Mitigating Factors are:
(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
(4) A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20-16 or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
(5) Impairment of the defendant’s faculties 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’s voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
(7) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.
(8) Any other factor that mitigates the seriousness of the offense.
Punishment Levels and DWI Penalties
NC DWI Penalties are based on sentencing levels ranging from Aggravated Level 1, the most severe, to Level 5, the least serious. Only sentences of Aggravated Level 1, Level 1, and Level 2 require active jail time, and for these three levels no limited driving privilege is allowed. Levels 3 through Level 5 do not require jail time (unless a defendant refuses community service or violates probation) and do allow for limited driving privileges. The sentencing level depends on the balance of Mitigating and Aggravating Factors.
If there are more Mitigating Factors than Aggravating Factors, the judge will usually grant a Level 5 punishment. When no factors are present or the factors balance each other, a Level 4 punishment results. When there are more Aggravating Factors than Mitigating Factors, Level 3. A single Grossly Aggravating, regardless of Mitigating Factors means a Level 2. Level 1 requires two Grossly Aggravating Factors. Aggravated Level 1 is reserved for cases where there are three or more Grossly Aggravating Factors. The exact punishment levels are outlined below:
- Aggravated Level One Punishment: Under the recently created Aggravated Level One punishment level, you may be fined up to ten thousand dollars ($10,000) and sentenced to a minimum jail term of 12 months imprisonment up to 36 months.
- Level One Punishment: A defendant sentenced at this level may be fined up to four thousand dollars ($4,000) and sentenced to a minimum jail term of not less than 30 days up to 24 months.
- Level Two Punishment: This punishment level provides for fines up to two thousand dollars ($2,000) and a minimum jail sentence of not less than 7 days up to 12 months.
- Level Three Punishment: Beginning at this level, there is a community service option in lieu of mandatory time in jail. Here, the judge can order anywhere from 72 hours up to 6 months and a fine of up to one thousand dollars ($1,000).
- Level Four Punishment: At this level, you are facing 48 hours up to 120 days in jail, or community service, and a fine of up to five hundred dollars ($500).
- Level Five Punishment: This is the desired lowest level of punishment and includes jail or community service of 24 hours to 60 days and a fine of up to two hundred dollars ($200).
And, of course, every person convicted of a NC DWI will have to surrender their driver’s license (if a resident of North Carolina) or driving privileges (if from another State), have to undergo a substance abuse assessment as well as complete any recommended treatment. A Limited Driving Privilege (LDP) is usually available, unless you have a BAC level of 0.15 or greater or refuse breath testing altogether. In the first situation, you must wait forty-five (45) days before being eligible to apply for a LDP and must install ignition interlock in your vehicle. In refusal cases, no LDP option is allowed for six (6) months after conviction or plea.
How judges decide what DWI penalties to impose?
After hearing from both the prosecutor and defense lawyer, the judge will then compare the various factors and make the ruling. If the “Mitigating Factors” outweigh the “Aggravating Factors,” you will be given a Level 5 punishment. In cases where there are no factors or the factors are equal, a Level 4 punishment will be the ruling. Where there are more “Aggravating Factors” than “Mitigating Factors,” you can expect a Level 3 punishment. In cases where there is a single “Grossly Aggravating Factor” present, you will go to a Level 2 sentencing level where there is mandatory jail time. Where there are 2 “Grossly Aggravating Factors,” you will be facing Level 1 punishment. And, in those unusual cases where there are 3 or more “Grossly Aggravating Factors,” the punishment will be at the recently established Aggravated Level 1 punishment level, the most severe under North Carolina DUI law.
And where are DUI sentences served?
If sentenced to active incarceration, you will serve your sentence in either a jail or treatment facility. Beginning on January 1, 2015, sentences for any misdemeanor DWI will be handled through the Statewide Misdemeanant Confinement Program. Defendants serving active time will be assigned to a county jail, and it may be a jail facility in a different county from the place of conviction. However, DWI imprisonment imposed as a special probation condition must be served in a local confinement facility or treatment facility as designated by the sentencing judge. N.C.G.S. 20-179(k1) also permits a judge to order that any term of imprisonment imposed as a special probation condition be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient. This discretion is not subject to appeal or challenge.
Good time credits and DWI penalties?
The answer is both yes and no. All DWI defendants sentenced to active prison terms are given credit for “day for day” good time rate. This means that one day will be deducted from their term of imprisonment for each day served without a violation of inmate rules. See N.C.G.S. 148-13(b). And, any credit will be awarded regardless of where the sentence is actually served. See N.C.G.S. 148-13(e). However, it should be noted that good time cannot reduce a defendant’s DWI ultimate time served below the statutory mandatory minimum for his or her DWI sentencing level.
Special Conditions in Reducing DWI Penalties and Active Jail Time
There are some discretionary special procedures available to judges that allow for reduction of minimum sentencing requirements:
- Aggravated Level One Punishment Reduction: The term of imprisonment may be suspended but only if a condition of special probation is imposed that requires the defendant to serve a minimum term of 120 days. If the defendant is then placed on probation, the judge will require the defendant to (i) abstain from alcohol consumption for a minimum of 120 days up to the maximum term of probation, and (ii) obtain a substance abuse assessment and complete all recommended education or treatment.
- Level One Punishment Reduction: The term of imprisonment may be suspended if a condition of special probation is imposed to require the defendant to serve a minimum term of imprisonment term of at least 30 days. A judge may further reduce the minimum term of imprisonment required to not less than ten (10) days if a condition of special probation is imposed to require abstinence from alcohol consumption and to be monitored by a continuous alcohol monitoring system for a period of not less than 120 days.
- Level Two Punishment Reduction: The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant serve a minimum term of imprisonment of seven (7) days and/or abstain from consuming alcohol for at least ninety (90) consecutive days as verified by a continuous alcohol monitoring system (SCRAM).