How DWI Sentencing Works in North Carolina

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If your DWI (Driving While Intoxicated) case goes to court, it's hopefully going to end with your DWI attorney packing up his or her papers, smiling, and telling you that you won. Unfortunately, it could end with you being found guilty. If so, you need to know what you're facing in the way of a sentence. North Carolina's laws for sentencing DWI offenders are laid out in General Statute §20-179. It establishes five tiers, called levels, of sentences.

The level of your sentence is determined by what the state calls grossly aggravating factors, aggravating factors, and mitigating factors. Grossly aggravating factors or aggravating factors will cause the court to go harder on you. Mitigating factors helps the court to be lenient. You should speak with a qualified Charlotte DWI attorney to help you navigate your way through these factors. Often, a DWI lawyer has devoted his or her career to resolving these matters. As part of your sentence, you'll be required to pay a fine and court costs, and you'll have to go through an alcohol treatment program.

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DWI Sentencing Factors

State law spells out what it calls grossly aggravating factors. A judge must consider these when sentencing DWI offenders. Judges must also consider aggravating and mitigating factors.

There are four grossly aggravating factors with DWI charges in North Carolina:

  • A prior DWI conviction within 7 years of the date of the offense for which you are being sentenced, or a DWI conviction after the date of the offense for which you are being sentenced. Each prior conviction is considered a separate grossly aggravating factor.
  • Driving while your license was revoked as a result of DWI
  • Serious injury to another person as a result of your DWI
  • DWI with a child under the age of 18 in the vehicle

If there are no DWI grossly aggravating factors, the judge must weigh the extent to which any aggravating factors figure into the case. State law lists eight specific factors and a ninth "catch all" factor.

They are:

  • Gross impairment while driving or a blood alcohol level of .15 or higher
  • Especially reckless or dangerous driving
  • Negligent driving that led to an accident
  • Driving while your license is revoked
  • Two or more prior convictions for traffic offenses that incur at least 3 points on your record or which could result in a revoked license, if the offenses happened within five years of your DWI arrest; or a prior DWI more than 7 years before the date of your DWI arrest.
  • Speeding to evade DWI arrest
  • Speeding more than 30 mph over the speed limit
  • Passing a stopped school bus
  • Any other factor that aggravates the seriousness of the offense. This is the catch all that allows the judge broad discretion. Every judge has a different internal standard of what event or circumstances falls into this category.

Finally, there are mitigating factors. These are factors that make the offense "not as bad as it could be" and allow for a lighter sentence. North Carolina DWI law spells out six specific mitigating factors and, again, a "catch all" factor.

They are:

  • Slight impairment and a blood alcohol level of .09 or less
  • Slight impairment on the basis of field sobriety tests in the absence of any chemical analysis of your blood. (However, if you refused tests this factor will not be considered.)
  • Driving that was safe and lawful at the time of your arrest except for being impaired
  • A safe driving record, with no conviction for any traffic offense that incurs four points on your record or which could result in having your license revoked.
  • Impairment that was caused chiefly by a legally prescribed medication of which you took the prescribed dosage
  • Voluntary participation before sentencing in an alcohol assessment program and, if recommended, voluntary participation in a treatment program
  • Any other factor that mitigates the seriousness of the offense. (This again is a critical area that varies from judge to judge.)

DWI Sentencing Levels in North Carolina

All DWI convictions, except the felony of Habitual DWI, are sentenced at one of five levels. Level one and two are imposed if you have a prior DWI conviction within seven years or if there are any other grossly aggravating factors. Levels three, four, and five are imposed for first offenses, offenses occurring more than seven years after the previous, and offenses without grossly aggravating factors. If this is your first DWI, the level you get will depend on the weight of the aggravating and mitigating factors in your case. (There are some occasions when you could have a grossly aggravating factor on your first offense.)

Let's look at the punishment incurred at each level, starting from the bottom up:

  • Level five: This is the lightest of all sentencing levels. You may be fined up to $100 and must be sentenced to anywhere from 24 hours to 60 days in jail. The judge may suspend the jail term if 1) you are imprisoned for at least 24 hours as a condition of special probation, 2) you perform at least 24 hours of community service, or 3) you have your license revoked for at least 30 days. The judge can impose any combination of these conditions.
  • Level four: In a level four sentence, you may be fined up to $250 and must be sentenced to anywhere from 48 hours to 120 days in jail. The judge may suspend the jail term if 1) you are imprisoned for at least 48 hours as a condition of special probation, 2) you perform at least 48 hours of community service, or 3) you have your license revoked for at least 60 days. The judge can impose any combination of these conditions.
  • Level three: You may be fined up to $500 and must be sentenced anywhere from 72 hours to six months in prison if you are sentenced at level three. The judge may suspend the jail term if 1) you are imprisoned for at least 72 hours as a condition of special probation, or 2) you perform at least 72 hours of community service; or 3) you have your license revoked for at least 90 days. The judge can impose any combination of these conditions.
  • Level two: A level two sentence is a serious sentence. The judge must impose level two punishment if any one grossly aggravating factor is present. At level two, you may be fined up to $1,000, and you must be sentenced anywhere from seven days to a year in prison. As an alternative, you may be sentenced to two days in jail and ten days of house arrest at a minimum. The same provisions for losing your license apply as under level one, and the judge will make completing an alcohol treatment program a condition to having your driving privileges restored, but until then you get no limited driving privileges.
  • Level one: In level one, the court imposes the maximum punishment. A judge must hand you a level one sentence if two grossly aggravating factors are present. At level one, you may be fined up to $2,000 and you must be sentenced anywhere from 14 days to 2 years in prison. As an alternative to 14 days in prison, you may be sentenced to four days in jail and 20 days of house arrest at a minimum. The judge will usually order that you not drive until the DMV gives you back your driver's license. That period of time depends on how close together your DWI convictions are. If the sentence includes probation, the judge will make completing an alcohol treatment program a condition to having your driving privileges restored, but again, you get no limited driving privileges.

Remember, when you're charged with a DWI in Winston Salem, Greensboro, Charlotte, or High Point we can provide you with a local DWI attorney near you. Our DWI Practice Area Team can help, and we're looking forward to giving you a free consultation to analyze the particulars of your DWI case. Regardless of the level of your sentence, there are other factors that can influence your punishment, such as when and where you receive treatment.

Prior DWI's Or First Offense DWI

As you can see from the DWI sentencing factors and sentencing levels, prior DWIs can have big impact on the sentence you receive. Although not listed as part of the level one or two sentences, you can also expect to lose your license if you have a prior DWI when you are convicted. If your prior DWI conviction was within three years, you'll lose your license for four years. After two years, you'll be eligible for a hearing to determine if you should get limited driving privileges. If the prior DWI conviction is between three and seven years prior, you'll lose your license for one year.

Now, if you do have prior DWI convictions outside of North Carolina, you might argue against them being used as an aggravating or grossly aggravating factor. Sometimes you get lucky and the record of these prior DWI convictions fall through the cracks. Also, any charge in another state could be listed as a different offense. For instance, it may be known as a DUI, which is driving under the influence. At first glance, DUI might sound like the same thing, but it's actually a lesser offense than Driving While Intoxicated (DWI). You can be under the influence without being impaired. So the argument becomes that it's not fair to equate a prior DUI with prior DWI.

The Role of Boykin v. Alabama

Finally, consider the precedent set by Boykin v. Alabama. This was a case in 1969 that went all the way to the U.S. Supreme Court. The court ruled that a prior DWI conviction cannot be held against you as an aggravating factor for sentencing purposes unless you knowingly waived your constitutional rights on the prior case. These days, it's rare that Boykin can be used to eliminate a prior DWI in North Carolina because, in the 1980s, the state adopted a new form that advises those charged with DWI of their right to counsel.

However, Boykin is still useful in keeping out other DWI charges that may have occurred in states that don't have the same safeguards. You might want to use Boykin, but know that the burden of proof will be on you to prove that you didn't know about your constitutional rights at the prior conviction. You won't have to prove it beyond a reasonable doubt, but you will have to prove it by the greater weight of the evidence. Discuss this option with your DWI lawyer if you believe that you did not know about your rights at the time of your conviction.

Level one and level two DWI sentences include a mandatory jail sentence of at least 14 days and seven days, but the judge is allowed some discretion. The judge could sentence you to a combination of house arrest and jail. House arrest means that you may not leave your house except to go to work or school. This means you stay in your house. You can't, for instance, go outside to mow. Some counties use an ankle bracelet to keep track of people under DWI house arrest. This is often referred to as "intensive probation."

Under a level one DWI sentence, the judge must sentence you to at least four days in jail. The remainder of the jail sentence can be served as house arrest. This equates to two days of house arrest for each day you're not in jail. So, the judge could sentence you to four days in jail and then double the remaining days in the jail sentence to determine how many days of house arrest he has to sentence you to. In this case, there are ten days not being served, so this means twenty days of house arrest. Typically, they may sentence you to four days in jail and 60 days house arrest.

Under level two, the judge can reduce your active jail time to two days, and sentence you to house arrest for the remainder of your jail time, which would be a minimum of ten days house arrest. Of course, a lot of judges do give house arrest times that are larger than this, ignoring the minimum 2 for 1 standard. Judges may give day-for-day credit for active jail time if you complete 24 hour inpatient alcohol treatment program. You have to complete the recommended days of treatment before sentencing for the days you spent in treatment to count as jail time.

DWI Alcohol Treatment Programs

Judges will order you into an alcohol treatment program as part of your sentence. You have to get an alcohol assessment by a licensed agency and complete the treatment it recommends. If you haven't had an assessment before sentencing, the judge will order one. North Carolina DWI law gives people charged with Driving While Intoxicated an incentive to go through an alcohol assessment voluntarily by listing this as a mitigating factor in considering your sentence. The assessment must be performed by an agency licensed as a substance abuse treatment agency. A Dummit Fradin DWI attorney will be able to provide you with a list of licensed agencies. By North Carolina DWI state law, the agency will charge $100 for the assessment. The assessment includes a clinical interview, a test for substance abuse, and a driving record evaluation.

You will be asked about:

  • Your use of alcohol and drugs
  • Your driving history
  • Your family history
  • Your social, educational and work background
  • Your medical history
  • Your mental status

The counselor will likely recommend that you receive one of five different levels of treatment. You may be asked to attend ADETS (Alcohol and Drug Education Traffic School). This program is one day long, and it is often held on Saturdays. During this time, you are presented with information about the effects of alcohol on driving ability and the harsh consequences of driving while impaired.

ADETS is recommended to people who have/had:

  • No evidence of a substance abuse problem
  • No prior DWI convictions
  • A blood alcohol content of .14 or less when arrested

Short-term outpatient treatment is for people who show some signs of a substance abuse problem.

This might include:

  • A blood alcohol level of 0.15 or higher
  • A refusal to take a breath test
  • A family history of substance abuse
  • Emotional factors that could contribute to substance abuse

Short term programs must include at least 20 hours of counseling over a 30-day period. Those who meet the criteria for a substance abuse problem are generally recommended for a long-term outpatient treatment. This requires 40 hours of counseling over 60 days. A DWI day treatment is for people diagnosed as having moderate to severe substance abuse dependency. This means at least 90 hours of counseling over the course of 90 days and it could include counseling for other family members, as well. It is possible day treatment could require a brief inpatient detox stay.

Inpatient treatment (long or short-term) is recommended for people who are diagnosed as having a substance abuse dependency, but who would not be suitable for day treatment because:

  • They have already had day treatment
  • Need medical monitoring
  • Have emotional and/or behavioral problems
  • Are resistant to treatment
  • Are not able to abstain
  • Live in a negative and destructive environment

Unfortunately, you have to pay for whatever treatment the agency recommends. Your health insurance may cover some or all of this cost.

Insurance-Related Issues

The judge can't, of course, order a hike in your insurance rates, but for practical purposes it is a consequence of a DWI conviction. When you see your premiums, you'll think you've been punished all over again. A DWI conviction in North Carolina comes with a revocation of your license. If you get limited driving privileges, your premiums will be calculated as if you had 12 points on your driving record. Your insurance will likely go up 400 percent for three years. Afterwards, you may still be assessed as a high-risk driver and forced to pay higher premiums.

To learn more about how we can assist you, please give us a call today.

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