The guide begins with the basics of what qualifies as driving while impaired "DWI" and factors which affect sentencing levels. What follows is what a defendant can do to minimize criminal consequences of a conviction.
Driving While Impaired "DWI" Elements
N.C. Gen. Stat * 20-138.1 states that a person commits the offense of impaired driving when the person:
(1) Drives a vehicle
(2) Upon any highway, street, or public vehicular area; and
(3) Is under the influence of an impairing substance; or has at any relevant time after the driving; or an alcohol concentration of 0.08 or more; or with any amount of a Schedule I controlled substances in the person*s blood.
An attorney must first analyze for grossly aggravating factors, or simply but really bad things that proved by the State will dramatically raise the sentencing level.
(1) Prior DWI conviction within 7 years of date of offense of current DWI
(2) DWLR for an Impaired driving revocation at time of DWI
(3) Serious injury to another person caused by defendant*s impaired driving
(4) Passenger in vehicle under age 18, with a mental development of child under 18, or with a physical disability that prevents unaided exit from vehicle.
If no grossly aggravating factors are present, then a judge will do a balancing test between aggravating factors (bad things) and mitigating factors (good things) and determine sentencing level based off which one outweighs the other.
(1) BAC of .15+ a relevant time after driving
(2) Especially reckless or dangerous driving
(3) Driving while license revoked not Impaired revocation
(4) 2+ conviction within last 5 years which give 3 or more license points
(5) Speeding to elude arrest
(6) Speeding 30+ over the speed limit
(7) Passing stopped school bus
(8) Catch all any other factor that aggravates seriousness of offense
(1) BAC .08 or .09 or if no test available then slight impairment of defendant*s faculties resulting only from alcohol
(2) Safe and lawful driving
(3) Safe driving record with no convictions of 4+ points within the last 5 years
(4) Impairment caused primarily by lawfully prescribed drug for existing medical condition within prescribed dosage
(5) Voluntary substance abuse assessment
(6) Completion of substance abuse assessment
(7) Catch all any other factor that mitigates seriousness of offense
Level 5 Punishment. The mitigating factors outweigh the aggravating factors. Minimum sentence of 1 day in jail or 24 hours of community service. Maximum sentence of 60 days in jail. Maximum judge's additional fine of $200.
Level 4 Punishment. The mitigating factors and aggravating factors are balanced equally and cancel each other out. Minimum sentence of 2 days in jail or 48 hours of community service. Maximum sentence of 120 days in jail. Maximum judge's additional fine of $500.
Level 3 Punishment. The aggravating factors outweigh the mitigating factors. Minimum sentence of 3 days in jail or 72 hours of community service. Maximum sentence of 6 months in jail. Maximum judge's additional fine of $1000.
Level 2 Punishment. 1 grossly aggravating factor present. Minimum sentence of 7 days. Maximum sentence of 1 year in jail. Maximum judge's additional fine of $2000.
Level 1 Punishment. 2 grossly aggravating factor present OR the grossly aggravating factor of minor or mentally or physically disabled passenger in the car. Minimum sentence of 30 days. Maximum sentence of 2 year in jail. Maximum judge's additional fine of $4000.
Aggravated Level 1 Punishment. 3 or more grossly aggravating factor present. Minimum sentence of 1 year. Maximum sentence of 3 year in jail. Maximum judge's additional fine of $10,000.
Keep in mind, that by doing continual alcohol monitoring or impatient treatment, credit can be given to be applied towards minimum and maximum sentences.
Afraid of supervised probation? Do this to avoid it
I represent a lot of undocumented clients, and they are very concerned about being placed on supervised probation. Fortunately N.C.G.S. * 20-179(r) provides a way to minimize the risks.
All DWIs also require a substance abuse assessment and completion of all recommended treatment. Around 60% of DWIs are sentenced at the lowest level of punishment, Level 5. 60% of DWIs are sentenced to unsupervised probation. 33% are sentenced to supervised probation. 7% are given a straight active sentence.
N.C.G.S. * 20-179(r): DWI Sentencing
Judge shall give unsupervised probation if
(1) No prior DWI within 7 years
(2) Level 3, 4, or 5
(3) SAA and treatment completed
UNLESS Judge determines supervised probation is necessary and states in judgment supervised probation is necessary
*If Judge does order supervised probation, Judge shall authorize probation officer to modify defendant*s probation to unsupervised once defendant has (1) completed community service and (2) payment of all court costs, fines, and fees
Additional resources provided by the author
I will soon post a guide on DMV related consequences of being charged or convicted of DWI.
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