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DWI SENTENCING

There are 6 levels of punishment for a DWI conviction. Listed in declining severity of punishment; they are Aggravated Level I, Level I, Level II, Level III, Level IV, and Level V. “Level 5” is the least punitive while “Aggravated Level 1,” which carries a Maximum jail sentence of 36 months. The Level of punishment is determined based on a sentencing hearing at which the Judge makes findings regarding the existence of grossly aggravating factors, aggravating factors, and mitigating factors.
Grossly Aggravating Factors

(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c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20 38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20 28, and the revocation was an impaired driving revocation under G.S. 20 28.2(a).
(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 a child under the age of 16 years was in the vehicle at the time of the offense.
In imposing a Level One or Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) of § 20 179 in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f) of § 20 179.


Aggravating Factors

The following are aggravating factors under our Driving While Impaired sentencing law:
• Gross impairment of the defendant’s faculties or an alcohol concentration of 0.16 or more within a relevant time of the driving.
• Especially reckless or dangerous driving.
• Negligent driving that led to a reportable accident.
• Driving by the defendant while his/her license was revoked. (But not for an impaired driving offense.)
• A driving record which includes two or more prior convictions for offenses for which at least three points are assigned or for which the convicted person’s license is subject to revocation, if the conviction occurred with five years of the date of the offense.
• One or more prior convictions of impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
• Conviction of speeding by the defendant while attempting to elude arrest at the time of the impaired driving.
• Conviction on one occasion of the impaired driving offense of speeding by at least 30 mph over the speed limit.
• Passing a stopped school bus during the commission of the offense of impaired driving.
• Any other factor that aggravates the seriousness of the offense.

Mitigating Factors

The following are the mitigating factors set forth in our Driving While Impaired Sentencing Statute:
• Slight impairment of the defendant’s faculties resulting solely from alcohol and the alcohol concentration does not exceed 0.09.
• Slight impairment of the defendant’s faculties resulting solely from alcohol, when no chemical analysis had been available to the defendant.
• Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
• A safe driving record of the defendant with no conviction for any motor vehicle offense for which at least four points were assigned within five years prior to the date of the offense for which sentence is being imposed.
• 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 dose.
• The defendant’s voluntary submission to a mental health facility for an assessment after he/she was charged with the impaired driving offense for which he/she is being sentenced.
• Any other factor that mitigates the seriousness of the offense.

General Sentencing Guidelines
As indicated above, if two grossly aggravating factors exist, Level 1 punishment must be imposed. If one grossly aggravating factor exists, Level 2 punishment must be imposed.
If no grossly aggravating factors exist, the sentencing Judge weighs the evidence of aggravating and mitigating factors to determine whether the aggravating factors outweigh the mitigating factors, whether the aggravating factors and mitigating factors substantially counter balance one another, or whether the mitigating factors outweigh the aggravating factors.
If the aggravating factors outweigh the mitigating factors, Level 3 punishment is imposed. If the factors counter balance each other, Level 4 punishment is imposed. If the mitigating factors outweigh the aggravating factors, Level 5 punishment is imposed.

The punishments for the various sentencing levels are as follows:

Aggraveted Level 1:

Fine: Up to $10,000

Jail: Minimum of 12 months, maximum of 36 months — with no eligibility for parol

  • 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 1:
• Imprisonment for up to 24 months.
• A maximum fine of $4,000.00.
• A mandatory minimum term of imprisonment of not less than thirty days.
• A requirement that the defendant obtain a Substance Abuse Assessment and complete the alcohol education required.
• A mandatory revocation of license, with no Limited Driving Privilege authorized.

Level 2:
• Imprisonment for up to twelve months.
• A maximum fine of $2,000.00.
• A mandatory minimum term of incarceration of seven days.
• A requirement that the defendant obtain a Substance Abuse Assessment and complete any education or treatment program recommended by the assessing agency.
• A mandatory revocation of license, with no Limited Driving Privilege authorized.
Under either Level 1 or 2 punishment, the Judge may give credit against the mandatory minimum term of imprisonment for any inpatient treatment received by the defendant following his offense of impaired driving.

Level 3:
The punishment for Level 3 offenses of driving while impaired is as follows:
• Imprisonment for up to six months.
• A maximum fine of $1,000.00.
• A requirement that the defendant obtain a substance Abuse Assessment and complete any treatment program recommended by the assessing agency.
• A mandatory term of incarceration of 72 hours, which term may be suspended upon one or both of the following conditions:
1. 72 hours of community service.
2. A mandatory prohibition on driving for a term of at least 90 days.
• A one year revocation of the defendant’s driving privilege.

Level 4:
The punishment for Level 4 Driving While Impaired is as follows:
• Imprisonment for up to 120 days.
• A maximum fine of $500.00.
• A requirement that the defendant obtain a Substance Abuse Assessment and complete any treatment program recommended by the assessing agency.
• A mandatory term of imprisonment of 48 hours which may be suspended upon one or both of the following conditions.
1. 48 hours community service.
2. A mandatory prohibition on driving for at least 60 days.
• A one year revocation of the defendant’s driving privilege.

Level 5:
Punishment for Level 5 driving While Impaired is as follows:
• Imprisonment for up to 60 days.
• A maximum fine of $200.00.
• A requirement that the defendant obtain a substance abuse assessment and complete any treatment program recommended by the assessing agency.
• A mandatory term of imprisonment of 24 hours, which term may be suspended upon one or both of the following conditions:
1. 24 hours of community service;
2. A mandatory prohibition on driving for a period of thirty days.
• A one year revocation of the defendant’s driving privilege.

A person who is subject to Level 5 punishment, who is otherwise eligible, may obtain a Limited Driving Privilege for the one year period of revocation imposed for the conviction of impaired driving.

Elevated Alcohol Concentration/Ignition Interlock Required
The law in north Carolina provides that if a person is convicted of Driving While Impaired and that person had an alcohol concentration of 0.16 or more at the time of the offense, a judge must order that any limited driving privilege issued be conditioned upon the installation of an ignition interlock system approved by the Commission. A limited driving privilege issued with an interlock system requirement restricts the driver to the operation of only one particular designated motor vehicle. It is further required that the holder of the limited driving privilege personally activate the ignition interlock system before driving the motor vehicle.
The only exception to this requirement is if the vehicle driven by the holder of the limited privilege is owned by the licensee’ s employer; is operated by the licensee solely for work related purposes; and the other (employer) has filed with the court a written document authorizing the applicant to drive the vehicle for work related purposes under the authority of a limited driving privilege.
There are other circumstances and conditions that may call for an interlock ignition system to be installed on a licensee’s vehicle for work related purposes under the authority of a limited driving privilege.
There are other circumstances and conditions that may call for an interlock ignition system to be installed on a licensee’s vehicle. These are primarily related to circumstances surrounding the restoration of a license following a period of revocation during which no limited privilege was authorized.