THE LAW ABIDES

A legal information blog discussing North Carolina Law, for when you're out of your element

NC DWI / DUI (Driving While Impaired)


In North Carolina, the criminal offense of Driving While Impaired (DWI) is codified under N.C. Gen. Stat. § 20-138.1 “Impaired Driving,” and is classified as a misdemeanor. (Available here). A defendant is guilty of DWI if it is proven that the defendant was driving a motor vehicle on a highway, street, or public vehicular area in North Carolina while (1) under the influence of an impairing substance; (2) after consuming sufficient alcohol to meet or exceed a blood alcohol concentration or .08 or more; or (3) with any amount of a Schedule I Controlled Substance registering in the defendant’s blood or urine.

North Carolina does not adhere to the typical distinction between felony and misdemeanor, where a felony is considered any crime punishable by more than one year in prison, but rather uses structured sentencing grids that set punishments based upon the class of felony (A-I) or misdemeanor (A1-3), with the prior record of the defendant determining the minimum and maximum range of punishment. DWI sentencing, however, adheres to its own set of rules for sentencing purposes. However, each conviction for impaired driving is expressly listed alongside Class A1 and 1 misdemeanors (the more severe misdemeanors), and will result in a 1 point addition to your criminal record for sentencing purposes.

Ok, so now we’ve defined exactly what North Carolina considers impaired driving, and as you can already see and I’m sure you are aware, this charge is taken very seriously. What now?

First, let’s place the charge of DWI into context. Under NC Gen. Stat. § 20-16.2 (a), “any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense.” (Available here). Therefore, if you drive on a public road in North Carolina you have, by implication, already given consent to have a chemical analysis conducted by some official trained to do so. "Implied-consent offenses" include Driving While Impaired and other alcohol related offenses. Refusal to submit to a chemical analysis results in an immediate 1 year suspension of your driver’s license.

Second, the likelihood of talking a prosecutor into giving you a voluntary dismissal, or negotiating a reduced or alternate charge is highly, extremely, nearly 100% unlikely. Why? Because perhaps, prosecutors are unreasonable or are only seeking a high conviction rate? ABSOLUTELY NOT. But, specific to implied-consent offenses, prosecutors are required, pursuant to NC Gen. Stat § 20-138.4 (available here), to explain orally in open court AND submit in writing the reasons for any dismissal or reduction of an implied-consent offense. The required writing is quite detailed, listing seven (7) different areas of required information that must be supplied and later sent to the arresting officer’s agency and the North Carolina Administrative Office of the Courts, who in turn enter the required information into an electronic, public database. This means all dismissals/reductions are public record, placing more pressure on District Attorney’s Offices to pursue implied-consent offenses rather than answer for a substantial amount of implied-consent dismissals/reductions.

Third, DWI is not limited to just alcohol. Any impairing substance, or any amount of a Schedule I controlled substance, is sufficient to charge an individual with Driving While Impaired. So as it turns out, even if you are able to “pass” a breathalyzer you may still face a DWI charge if the arresting officer is able to gather enough information to establish probable cause that some substance is in fact impairing your abilities to legally drive a vehicle.

Fourth, and as a general point, North Carolina’s judicial system is divided into several courts which possess varying jurisdiction over certain cases. As far as criminal charges are concerned, all cases start in criminal district court. However, felonies are under the original jurisdiction of Superior Courts, and must be tried in Superior Court. This essentially means that if felony charges aren’t dealt with in District court, either with plea, deferral, or dismissal, then they eventually get bumped to Superior Court for indictment. Misdemeanors remain in District Court, but can be appealed to Superior Court upon conviction. DWI is classified as a misdemeanor, meaning it must first make its way through the trenches of District Criminal Court before possibly being appealed to Superior Court for a trial de novo. District Court trials in North Carolina are always bench trials (trials conducted before a judge who makes a final decision of guilt or innocence). As a side note, de novo is just fancy lawyer jargon (Latin) for a brand new trial. This means, once appealed from District Court, the charge begins anew in Superior Court as if the trial in District Court never occurred. The biggest difference? A variation in discovery procedures, as well as the right to a jury trial in Superior Court (among other differences that I won’t be discussing in this article).

Fifth, being charged with DWI does not mean you are automatically guilty. Nor does it mean that you are without viable options to defend yourself against this charge. Remember, the state must prove your guilt beyond a reasonable doubt. And that doesn’t mean just proving that you were impaired. The state must sufficiently prove that the traffic stop initiated by the officer was valid and based upon sufficient reasonable suspicion that a crime had or was occurring. Further, the state must be able to show that the officer gathered sufficient evidence to establish probable cause that the driver of a vehicle is impaired and even more, the state and officer must be able to show that any field sobriety tests(s) or chemical analysis administered were done so properly. Additionally, you have various State and Federal Constitutional guarantees relating to Fourth Amendment search and seizure, as well as statutory rights relating to the manner or arrest and timing of appearing before a magistrate or district court judge. This, of course, is only a brief summary of possible points of defense for your case. The only way to absolutely determine the merits of a potential DWI defense is to speak with a competent criminal defense attorney who will be able to analyze the specific facts of your case, and give you a realistic assessment of the likely outcome of your case. And don’t fret if you have multiple traffic violations or charges piled up alongside a DWI charge. Remember, all must be proven beyond a reasonable doubt before you are found guilty.

Finally, the consequences of being convicted for impaired driving are severe, not only initially, but more importantly they are severe collaterally. What I mean by this is that a conviction for impaired driving will become part of your criminal record, subject to background checks by future employers. Your license will be suspended for a period of time, and even with the availability of limited driving privileges you will be extremely restricted in your daily routine since you will not be allowed to drive in most instances. Beyond these consequences, the cost alone of a DWI charge and conviction can easily lead to thousands of dollars in attorney’s fees, fines, required fees for alcohol assessments and classes, community service and jail fees, monitoring fees for supervised probation, and even fees associated with the installation and monitoring of a Breath-Analyzed ignition interlock system, required to be installed if your BAC registered .15 or above. And if found guilty, it is regular practice to have the payment of these costs incorporated into terms of probation, where non-payment leads to a probation violation and activation of your sentence.

The point of all of this? A general resource of information.

But more importantly, I hope this article can assist you in planning ahead. If you are currently facing DWI charges, this article should give you a broad understanding of the general concepts related to the offense of impaired driving. Of course, this is not meant to serve as a manual for your criminal defense. Nor is it written to provide or be interpreted as legal advice, beyond of course my recommendation that anyone facing criminal charges, at a minimum, seek out and discuss your case with a licensed North Carolina attorney.

DWI SENTENCING OVERVIEW

Each potential punishment of a DWI offense is divided into sentencing levels that determine length of incarceration, terms of probation if allowed, and fines for each level of offense. Rather than a sentencing structure grid, DWI punishment is divided into six separate levels of severity codified at NC Gen. Stat §20-179, with Aggravated One sentencing level being the most severe, and Level 5 being the least severe. (Available here). A Judge will look at specific factors and occurrences of a defendant’s particular case when determining what level a defendant should be sentenced. This includes the testimony of the arresting officer (if offered), testimony of witnesses and possibly the defendant, the proven facts of the case, prior DWI convictions of the defendant, proven level of intoxication, as well as any other factor that could be classified as a mitigating or aggravating factor.

Let’s start with what exactly we’re talking about when we say mitigating or aggravating factor, then take a look at Level 5 sentencing and work our way to Aggravated One. I will end this article with a brief discussion of the habitual impaired driving statutes, and information on how you can contact me directly with questions.

MITIGATING FACTORS [§20-179 (e) (1) – (7)]

(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.

*Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.

Summary:

  1. Blood alcohol content (BAC) of .09 or less

  2. Slight impairment where no chemical analysis was available

  3. Safe and lawful driving at time of impairment

  4. Statutorily safe driving record, meaning your prior driving record has no charges of point value 4 or more. The list of charges and corresponding points can be found here: Offenses and Points

  5. Impairment due to consumption of legally prescribed drug within dosage limit

  6. Voluntary submission to mental health facility for substance abuse assesment

  7. Completion of substance abuse assessment recommentaion

  8. Any other mitigating factors

AGGRAVATING FACTORS [§20-179 (d) (1) – (9)]

(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.

*Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.

Summary:

  1. Gross impairment or BAC of .15 or more

  2. Reckless / dangerous driving

  3. Negligent driving resulting in accident

  4. Driving on revoked license

  5. Within 5 years, 2 or more traffic offense convictions assigned 3 points or higher, or offense which subject a defendant's driver's license to revocation

  6. Conviction of speeding while fleeing or eluding apprehension (running from the police)

  7. Speeding 30 mph over legal limit

  8. Passing stopped school bus

  9. Any other aggravating factors

LEVEL 5 [§20-179 (f)(3)]

Punishment: 1-60 days imprisonment; Sentence may be suspended, however, with mandatory additional condition of (1) 24 hour confinement as condition of special probation, or (2) performance of 24 hours of community service, or (3) both.

Fine: Up to $200

Determination guideline: Mitigating factors SUBSTANTIALLY OUTWEIGH any aggravating factors.

What it means: A judge must find that among the facts and circumstances of your case, the good factors (mitigators) weigh more heavily that the bad factors (aggravators). Obviously the judge doesn’t have a scale hidden behind the bench for this determination, so it is important that you retain an attorney who understands the good and bad of your case. Then, a competent attorney should be able to assist in highlighting the good aspects of your case and hopefully convince a judge that you are deserving of a Level 5 punishment.

LEVEL 4 [§20-179 (f)(2)]

Punishment: 2-120 days imprisonment; Sentence may be suspended, however, with mandatory additional condition of (1) 48 hour confinement as condition of special probation, or (2) performance of 48 hours of community service, or (3) both.

Fine: Up to $500

Determination guideline: Either (1) there are no mitigating or aggravating factors; or (2) aggravating factors are substantially counterbalanced by mitigating factors.

What it means: A judge must find that among the facts and circumstances of your case, no aggravating or mitigating factors exist, or, the more likely scenario, the judge finds that any aggravating factors that exist are substantially counterbalanced by mitigating factors. The statute uses the phrase “substantially counterbalanced,” which at first glance may seem as though this would be the case where you have an equal number of mitigating and aggravating factors. While case law seems to suggest that a majority of cases are determined in this manner, the statute’s language actually allows leeway for a judge to consider the severity of an aggravating factor as weighed against mitigating factors that may be deemed less favorable or valuable, and vice versa.

Bottom line, even with two mitigating factors balanced against 1 aggravating factor, a judge is within his authority to place a defendant in the Level Four sentencing range.

LEVEL 3 [§20-179 (f)(1)]

Punishment: 3 days – 6 months imprisonment; Sentence may be suspended, however, with mandatory additional condition of (1) 3 days confinement as condition of special probation, or (2) performance of 72 hours (3 days) of community service, or (3) both.

Fine: Up to $1,000

Determination guideline: Aggravating factors SUBSTANTIALLY OUTWEIGH any mitigating factors.

What it means: A judge must find that among the facts and circumstances of your case, the bad factors (aggravators) weigh more heavily than the good factors (mitigators). In plain terms, the possibility of Level Three punishment comes in wake of particularly egregious behavior relating to the arrest for DWI, or when a defendant possesses prior driving record convictions (more detail in mitigating factors section). If this is or seems as if it may be a possible outcome, there is little doubt that you should speak with a competent criminal defense attorney who can help you navigate your way toward Level Four sentencing if possible

**BRIEF INTERMISSION**

At this point we need to take a moment to address Grossly Aggravating Factors and how they affect DWI sentencing levels. Up until this point, only statutorily listed aggravating factors have been referenced when determining a convicted defendant’s sentencing level. However, the legislative branch has determined that among the facts of any given case exists the possibility of certain factors which, if proven, distinctly elevates the severity of DWI offenses. These are referred to as Grossly Aggravated Factors, and are listed below. If any of these factors are proven, a defendant can expect to skip the possibility of a Level 3, 4 or 5 sentence, and will instead face automatic consideration for Aggravated Level 1, Level 1 or Level 2 sentencing. Once it is determined that a grossly aggravating factor exists, a judge will still look to other aggravating and mitigating factors in making a final sentencing determination.

GROSSLY AGGRAVATING FACTORS [§20-179 (c)(1) – (4)]

(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

(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.

LEVEL 2 [§20-179 (h)]

Punishment: 7 Days – 1 year imprisonment; Sentence may be suspended, however, but ONLY if a condition of special probation is imposed requiring the defendant (1) serve a term of imprisonment of at least seven days, or (2) that the defendant abstain from consuming alcohol for a period of at least 90 consecutive days as verified by a continuous alcohol monitoring system which has been approved by the Division of Adult Correction of the Department of Public Safety. (A defendant may be credited up to 60 days of consecutive abstention from alcohol in the time prior to trial).

Probation Requirements:

[1] A mandatory 240 hours of community service are required if either of the following grossly aggravating factors are found and occurred within five years, specifically,

(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).

AND, a judge has decided to order the defendant abstain from alcohol rather than imposing an active minimum sentence as the condition of special probation.

[2] Judge must impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment.

Fine: Up to $2,000

Determination guideline: The judge must find that one grossly aggravating factor exists, however this one grossly aggravating factor CANNOT be any factor within number four [§20-179 (c)(4)], specifically,

(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.

What it means: A judge (or jury in Superior Court) must find that among the facts and circumstances of your case, only one grossly aggravating factor has been proven in your case. The large caveat to this being that a judge cannot find that grossly aggravating factor number four [§20-179 (c)(4)], applies. Why? Because such a finding would require a judge to sentence a Defendant at Level 1. From there, the judge will look at aggravating and mitigating factors of your case to establish a final sentence within the range of Level Two sentencing.

LEVEL 1 [§20-179 (g)]

Punishment: 30 Days – 2 Years imprisonment; Sentence may be suspended, however, with mandatory additional condition that a defendant serve a term of imprisonment of not less than 30 days. A judge can lower this 30 day minimum to 10 days, but only if a condition of special probation is imposed to require a defendant abstain from alcohol consumption for a period of not less than 120 days, confirmed by alcohol monitoring system. Up to 60 days of pretrial monitoring may be credited against this 120 day minimum requirement.

Fine: Up to $4,000

Determination guideline: It must be proven that either the Fourth Grossly Aggravating factor [§20-179 (c)(4)] applies, OR that two of the grossly aggravating factors have been proven.

What it means: This one is pretty straightforward. A judge (or jury in Superior Court) must find that this factor applies:

(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.

OR, two (2) of these:

(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.

AGGRAVATED LEVEL 1 [§20-179 (f3)]

Punishment: 1 – 3 years imprisonment, without parole eligibility. Instead, a defendant sentenced at Aggravated Level 1 will be eligible for release from the Misdemeanant Confinement Program on a date which is four months prior to the maximum imposed term. Sentence may be suspended, but only upon a condition of special probation whereby the defendant serves a term of imprisonment of at least 120 days. If suspended, a judge must also impose a condition of special probation that the defendant abstain from alcohol consumption for a range with a minimum of 120 days to a maximum of the term of probation, verified by a continuous alcohol monitoring system.

Fine: Up to $10,000

Determination guideline: Imposed where three (3) or more grossly aggravating factors exist.

What it means: This is the most severe sentencing level and, as shown above, carries with it very costly and punitive consequences. It should be noted that of the four grossly aggravating factors, [§20-179 (c)(1)] and [§20-179 (c)(4)] have subparts that are all considered separate grossly aggravating factors which will each count for the total number of aggravating factors present in your case. If Aggravated Level 1 sentencing is a possibility in your case, there is absolutely no doubt that you should at a minimum speak with an attorney about the facts of your case, but realistically you are more likely than not in need of a competent attorney who is well versed in DWI law.

HABITUAL IMPAIRED DRIVING

As the title suggests, defendants who are convicted of Habitual Impaired Driving, codified as NC Gen. Stat. § 20-138.5, have, within the past 10 years, been convicted of three or more offenses involving impaired driving. (Available here). Defendants found guilty of this classification will be punished as a Class F felon, with a minimum 1 year active sentence imposed. This sentence cannot be suspended; therefore those found guilty will be required to serve time in prison. As specifically required, any sentence imposed must run consecutively to any other sentence, and begins at the expiration of any other sentences being served. This isn’t all however. A defendant convicted under this offense will have their driver’s license permanently revoked, and the vehicle driven when this offense occurred becomes subject to forfeiture.

What does all this mean if convicted?

Guaranteed 1 year imprisonment

Permanent loss of driver’s license

Loss of motor vehicle.

QUESTIONS OR SUGGESTIONS

I’m always interested in making sure the information provided above is accurate and up to date. Any questions or corrections you may have related to this article or your case can be directed to Tyler Hite by e-mail (office@hitelawpllc.com), phone (828-263-4907), or through my website here. I offer free initial consultations, and will be happy to listen to and answer case specific questions. Please note, contacting my office does not create a client-attorney relationship, but any information you provide will be held in confidence as required by the North Carolina Rules of Professional Conduct for a potential client.

#DrivingWhileImpaired #DWI #DUI #NorthCarolina #NC #Attorney #Boone #DrunkDriving #SentencingLevels #ImpliedConsent #BloodAlcoholContent #BAC #Breathalyser #FieldSobrietyTest #TrafficStop #TylerHite #Watauga #Ashe #Avery #Wilkes #DMV #DrivingRecord #DriversLicense

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