If you are convicted of DWI in North Carolina, the judge will put you into one of six levels of various aggravating factors. Your sentencing level depends on the existence of statutorily defined mitigating, aggravating, and/or grossly aggravating factors. Below is a list of those factors:
MITIGATING FACTORS of DWI in North Carolina
- Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed the 0.09 limit at any relevant time after the driving.
- Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having 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, with the defendant 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.
- 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.
- The defendant’s voluntary submission to a mental health facility for assessment after being charged with the impaired driving offense for which the defendant is being sentenced, and, if recommended by the facility, voluntary participation in the recommended treatment.**
- 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 and Juvenile Justice of the Department of Public Safety.
- Any other factor that mitigates the seriousness of the offense.***
* For a mitigating factor to apply, the defense must prove its existence by a preponderance of the evidence. N.C.G.S. § 20-179(a)(1)-(2).** Because North Carolina judges are statutorily required to order defendants convicted of DWI to complete a Substance Abuse Assessment and comply with recommended treatment to impose a probationary sentence, we often recommend that clients facing a possible probationary sentence complete a substance abuse assessment and comply with treatment in advance. If convicted, you’re going to have to do a substance abuse assessment and treatment anyway. And if you wait for the judge to order you to do it, it won’t count as a mitigating factor. So why not get it done early and get credit for it? Getting it done before sentencing may result in a more lenient sentence.*** Wake County judges often count “polite and cooperative” as a mitigating factor if the police officer informs the court that the defendant was polite and cooperative during his or her investigation.
AGGRAVATING FACTORS of DWI in North Carolina
(N.C.G.S. § 20-179(d))*
- 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.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Driving by the defendant while the defendant’s driver’s license was revoked.
- 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.
- A conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
- A conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
- Passing a stopped school bus in violation of G.S. 20-217.
- Any other factor that aggravates the seriousness of the offense.
* For an aggravating factor to apply, the State must prove it beyond a reasonable doubt. N.C.G.S. § 20-179(a)(1)-(2).
GROSSLY AGGRAVATING FACTORS
(N.C.G.S. § 20-179(c))*
- A prior conviction for an offense involving impaired driving if:
- The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
- The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but before or contemporaneously with the present sentencing; or
- 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 the district court, and a new sentencing hearing has not been held according to G.S. 20-38.7.
- Each prior conviction counts as a separate grossly aggravating factor.
- Driving by the defendant at the time of the offense while the defendant’s driver’s license was revoked according to G.S. 20-28(a1) (i.e. while the defendant’s driver’s license was revoked for an impaired driving offense).
- Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
- Driving by the defendant while (1) a child under the age of 18 years, (2) a person with the mental development of a child under the age of 18 years, or (3) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.**
* For a grossly aggravating factor to apply, the State must prove it beyond a reasonable doubt. N.C.G.S. § 20-179(a)(1)-(2). However, if the State meets that burden, the defendant will automatically be subject to at least a Level 2 judgment, and no amount of mitigation can change that. N.C.G.S. § 20-179(c).** If any of these factors apply, the defendant is automatically subject to a Level 1 judgment, even if it is the only grossly aggravating factor that applies.