The Hiltzheimer Firm

 

North Carolina DWI Sentencing Guide

There is a wide range of potential sentences/penalties that an individual can face, if convicted of a DWI (driving while impaired/intoxicated) in Raleigh or elsewhere in North Carolina. At the low end, the best case scenario is generally a sentence of 24 hours of community service, a fine up to $200 (plus court costs), and likely a period of probation, including a requirement that that defendant a substance abuse assessment and corresponding education or treatment, prior to restoration of the individual’s driver’s license. The defendant’s driver’s license will be suspended for a year, but with the possibility of obtaining a limited driving privilege for work and school during that period.

DWI sentencing in NC is structured into six levels. 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. The DWI sentencing law is outlined in the North Carolina General Statutes (N.C.G.S.) § 20-179.  Following a conviction for a DWI, the judge will hold a sentencing hearing to determine whether there are aggravating or mitigating factors present in the case, in order to determine the appropriate sentencing level.  At that hearing, the State bears the burden of proving the existence of any aggravating factors beyond a reasonable doubt, and the defendant bears the burden of proving the existence of any mitigating factors by a preponderance of the evidence (a significantly lower standard).

The determination of the appropriate punishment level by the judge involves a balancing of grossly aggravating factors, aggravating factors, and mitigating factors.  A listing of those factors is included below, and following the list is an outline of the six DWI sentencing levels with a description of the criteria for determining placement in each, based on the balancing of aggravating and mitigating factors.


DWI Sentencing Factors

Grossly Aggravating Factors

The four factors below are the factors classified as “grossly aggravating”:

(1) A prior conviction for an offense involving impaired driving if:

  1. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
  2. 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
  3. 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.

NOTE: Each prior conviction is a separate grossly aggravating factor.

(2) Driving by the defendant at the time of the offense while his or her driver’s license was revoked for impaired driving.

(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

The eight specific factors below, plus the catch-all, are classified as “aggravating” for DWI sentencing purposes:

(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. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

(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 under G.S. 20‑16 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.

NOTE: Except for the factor in (5), the conduct constituting the aggravating factor must have occurred during the same incident as the impaired driving offense.

Mitigating Factors

The seven specific factors below, plus the catch-all, are classified as “mitigating” for DWI sentencing purposes:

(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.

(6a) 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.

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


DWI Punishment Levels

Aggravated Level One DWI Punishment: N.C.G.S. § 20-179(f3)
  • 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 DWI Punishment: N.C.G.S. § 20-179(g)

  • 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 DWI Punishment: N.C.G.S. § 20-179(h)

  • 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 DWI Punishment: N.C.G.S. § 20-179(i)

  • 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 DWI Punishment: N.C.G.S. § 20-179(j)

  • 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 DWI Punishment: N.C.G.S. § 20-179(k)

  • 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.