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DWI Sentencing in North Carolina

DWIs in North Carolina are divided into six categories. From most severe to least severe, the DWI sentencing levels are: Aggravated Level One, Level One, Level Two, Level Three, Level Four, and Level Five. Each level is decided by the presence or absence of grossly aggravating factors, aggravating factors, and mitigating factors. To better understand which category of DWI you may fall in, it is best to first understand what the different kinds of factors are.

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Grossly Aggravating Factors:

(1) If you have more than one DWI within 7 years of each other.

(2) If you were driving with a license that was revoked for a previous DWI when you were pulled over for the current DWI.

(3) If you injure someone while you are driving under the influence.

(4) If you have a child under 18 in the car, a person with the mental development of a person under 18, or a person with a physical disability that would prevent them from exiting the vehicle on their own.

Aggravating Factors:

(1) If you were grossly impaired or had a BAC of 0.15 or higher.

(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(4) Driving by the defendant while his driver’s license was revoked.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 traffic tickets that didn’t involve impaired driving for which at least three points are assigned or for which the driver’s license is subject to revocation. These tickets must have occurred within 5 years of the date of the current DWI.

(6) If you tried to run from or elude the police during the DWI stop.

(7) If you were going at least 30 miles per hour over the speed limit when stopped for the DWI.

(8) If you passed a stopped school bus during the DWI stop

(9) Any other factor that aggravates the seriousness of the offense.

It is important to note that except for the factor in (5) above, in order for an aggravating factor to apply to the DWI, the aggravating factor must have occurred during the same incident as the DWI offense.

Mitigating Factors:

(1) If you were only slightly impaired, or didn’t have a BAC of over 0.09.

(2) If you were only slightly impaired and no chemical analysis was made available to you.

(3) If you were driving safely and lawfully at the time of the offense except for the impairment of the defendant’s faculties.

(4) If you have an otherwise safe driving record, with no conviction for any motor vehicle offense for which at least four points are assigned or for which the person’s license is subject to revocation within five years of the current DWI.

(5) If your 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) If you voluntarily submit to a mental health facility for assessment after being charged with the impaired driving offense, and, if recommended by the facility, participating in the recommended treatment.

(6a) If you complete a substance abuse assessment, comply with its recommendations, and simultaneously maintain 60 days of abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system.

(7) Any other factor that mitigates the seriousness of the offense.

Once you have noted which factors apply to your situation, you look to see which of the following punishment levels you may fall in.

DWI Punishment Levels

Aggravated Level One

  • Imposed if three or more grossly aggravating factors are present
  • Fine: Up to $10,000
  • Jail: Minimum of 12 months, maximum of 36 months — with no eligibility for parole
    • But: Imprisonment term can be suspended only if a condition of special probation is imposed requiring a minimum term of imprisonment of at least 120 days
    • If probation is imposed, it must include the condition that the defendant abstain from alcohol for at least 120 days and undergo a substance abuse assessment and related treatment or education

 

Level One

  • Imposed if either:
    • The defendant was accompanied by a minor child (under 18) the time of the offense, or
    • Any two of the other grossly aggravating factors are present
  • Fine: Up to $4,000
  • Jail: Minimum of 30 days, maximum of 24 months
    • Imprisonment term may be suspended only if a condition of special probation is imposed including a minimum term of imprisonment of 30 days
    • BUT: A judge may reduce the minimum term of imprisonment required to a term of not less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, for a period of not less than 120 days. Pre-trial credit of up to 60 days may be given for alcohol monitoring prior to judgment, toward the 120-day period.
    • If probation is imposed:
      • Probation will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education
      • Probation may include a requirement of abstaining from alcohol, monitored by a continuous alcohol monitoring system, for anywhere between a minimum period of 30 days, up to the maximum of the term of probation

 

Level Two

  • Imposed if:
    • No minor child (under 18) was present in the vehicle, and
    • Only one other grossly aggravating factor is present
  • Fine: Up to $2,000
  • Jail: Minimum of 7 days, maximum of 12 months
    • Imprisonment term may be suspended only if a condition of special probation is imposed including a minimum term of imprisonment of 7 days,
    • OR: If the individual is ordered to abstain from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety. Up to 60 days of pretrial credit may be granted against the 90-day requirement, for voluntary alcohol monitoring prior to judgment.
    • BUT: If the defendant is subject to Level Two punishment as a result of a prior DWI conviction or driving on a license revoked as a result of a prior DWI, AND the conviction for a prior offense involving impaired driving occurred within five years before the date of the offense for which the defendant is being sentenced and the judge suspends all active terms of imprisonment and imposes abstention from alcohol as verified by a continuous alcohol monitory system, then the judge MUST also impose as an additional condition of special probation that the defendant must complete 240 hours of community service.
    • If probation is imposed:
      • Probation will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education
      • Probation may include a requirement of abstaining from alcohol, monitored by a continuous alcohol monitoring system, for anywhere between a minimum period of 30 days, up to the maximum of the term of probation, along with any other lawful conditions of probation the judge should choose to impose.

 

Level Three

  • Imposed if:
    • No grossly aggravating factors are present, and
    • Aggravating factors substantially outweigh any mitigating factors
  • Fine: Up to $1,000
  • Jail: Minimum of 72 hours, maximum of 6 months
    • Term of imprisonment may be suspended, but the suspended sentence must include:
      • Imprisonment for a term of at least 72 hours as a condition of special probation; OR
      • Community service for at least 72 hours; OR
      • Any combination of the above
  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

 

Level Four

  • Imposed if:
    • No aggravating or mitigating factors are present, or
    • Aggravating factors are substantially counterbalanced by any mitigating factors
  • Fine: Up to $500
  • Jail: Minimum of 48 hours, maximum of 120 days
    • Term of imprisonment may be suspended, but the suspended sentence must include:
      • Imprisonment for a term of at least 48 hours as a condition of special probation; OR
      • Community service for at least 48 hours; OR
      • Any combination of the above
  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

 

Level Five

  • Imposed if:
    • No aggravating or mitigating factors are present, or
    • Mitigating factors substantially outweigh any aggravating factors
  • Fine: Up to $200
  • Jail: Minimum of 24 hours, maximum of 120 days
    • Term of imprisonment may be suspended, but the suspended sentence must include:
      • Imprisonment for a term of at least 24 hours as a condition of special probation; OR
      • Community service for at least 24 hours; OR
      • Any combination of the above
  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

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Disclaimer

No information that you obtain from this web site is legal advice, nor is it intended to be. You should consult an attorney for individualized advice regarding your own unique situation. No attorney-client relationship is formed between SeiferFlatow, PLLC Office and you by viewing this web site.

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