If you are facing a DWI charge, it is very serious and you need legal representation to help you navigate this difficult charge. K² Legal Services will help you do just that. Come in for a free consultation to discuss your rights and any potential defenses.
First, the fact finder (the judge or the jury) will determine whether there are any grossly aggravating factors or mitigating factors. Grossly aggravating factors are really bad factors which cause enhanced punishment.
The following are “grossly aggravating” factors:
1) A prior conviction for DWI within the past 7 years (the past 7 years measured from the date of prior conviction to the date of offense).
2) A DWI conviction which occurred after the offense date but before or while the current DWI is being sentenced;
3) The DWI occurred while the Defendant’s license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a)
4) A child under the age of 18 was in the vehicle at the time of the DWI. (Requires Level 1 Sentence)
5) The driving caused an accident involving serious injury to another person.
If the judge finds more than two grossly aggravating factors, a person will be sentenced as an Aggravated Level 1. Aggravated Level 1 is the harshest sentencing level under the misdemeanor DWI statute.
*****Note that the law also changes the way a DWI committed (after December 1, 2011) with minors in the car is handled. The 2011 changes to the DWI law say that if a person has a minor (person under the age of 18) in the car, then the person must be sentenced as a Level 1.
If the judge or jury finds that two grossly aggravating factors are present, then the person will be sentenced according to Level 1 requirements.
If the judge or jury finds just one grossly aggravating factor is present, then the person will be sentenced according to Level 2 requirements.
If the person is sentenced to Aggravated Level 1, Level 1 or Level 2, the person is not entitled to apply for a Limited Driving Privilege during the period of license revocation. In addition, the license is suspended for four years. For the first two years, no LDP is permitted. Only at the conclusion of two years is a DMV hearing permitted to permit a person to apply for a LDP. In addition, Aggravated Level 1, Level 1 and Level 2 have mandatory jail or prison requirements. In some cases, if the person voluntarily enrolls in an In-Patient Treatment center, that period of treatment will be credited against any potential prison time.
If no grossly aggravating factors are found or alleged, then the judge or jury next considers whether there are any “aggravating” factors.
Aggravating factors include
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.
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 (for a non-DWI related offense)
5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under N.C.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 ten years before the date of the offense for which the defendant is being sentenced.
6) Conviction under N.C.G.S. § 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension
7) Conviction under N.C.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 N.C.G.S. § 20-217.
9) Any other factor that aggravates the seriousness of the offense.
These aggravating factors are weighed against mitigating factors.
Mitigating factors include:
1) The Defendant has voluntarily submitted him/herself to an alcohol or drug treatment center for an assessment of potential substance abuse problem and has completed the recommended treatment. Many judges will credit a person with a mitigating factor for at least having begun the treatment even if it’s not completed at the time of conviction.
2) A statutorily safe driving record for the previous five years.
3) Safe and otherwise lawful driving at the time of the offense.
4) A low Blood Alcohol Count (BAC) reading from the Chemical Analysis (.08 or .09 results are considered low).
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) Any other factor that mitigates the seriousness of the offense.
Weighing Aggravating & Mitigating Factors
The judge will weigh the aggravating factors (bad factors) against the mitigating factors (good factors).
If aggravating factors “substantially” outweigh mitigating factors, then Level 3 punishment is imposed.
If aggravating and mitigating factors balance each other out, then Level 4 punishment is imposed.
If mitigating factors outweigh aggravating factors, then Level 5, the least harsh punishment, is imposed.
If convicted, the judge will sentence you according to statutory guidelines. If you are sentenced as a Level 3, Level 4, or Level 5, you are eligible for unsupervised probation provided you have your court cost and fines available to pay the day of court. You will lose your license for one year. However, if age 21 or over at the time of the charge, you will also be eligible for a driving privilege if you have already completed your assessment and have a letter from your employer if necessary for non-standard driving hours. You must also have a DL 123 form from your insurance company which is current within 30 days of your final court date. You will be required to complete the recommendations of your alcohol assessment, complete community service during the time specified with no extensions of time for completion, pay your required court cost and fine and remain of good behavior during the term of your unsupervised probation.
If sentenced as a Level 2, Level 1, or as the highest misdemeanor level of Aggravated Level 1, then you face mandatory jail time.
To receive a Level 2 sentence, the judge must find one grossly aggravating factor in your case.
- For a Level 2 sentence, the mandatory minimum is 7 days incarceration up to a period of 1 year incarceration.
To receive a Level 1 sentence, the judge must find two grossly aggravating factors in your case.
- A Level 1 sentence is 30 days mandatory minimumincarceration up to a total period of 24 months of incarceration at the State prison.
To receive an Aggravated Level 1 sentence, the judge must find at least three aggravating factors in your case.
- An Aggravated Level 1 sentence is 120 days mandatory minimum with up to 36 months incarceration in the State prison and ultimately subject to a continuous alcohol monitoring system for at least four months.
Supervised probation is required for the balance of the sentence. Inpatient treatment is a possible alternative that K² Legal Services will discuss with you as a method of avoiding mandatory active incarceration.
Maximum Fines for each Level are as follows:
Level 5: Fine up to $200.00
Level 4: Fine up to $500.00
Level 3: Fine up to $1,000.00
Level 2: Fine up to $2,000.00
Level 1: Fine up to $4,000.00
Aggravated Level One: Fine up to $10,000.00
If blood was taken as part of your driving while impaired charge then there is also a fee of $600 applied to your case.
*Community Service fee is $250 in addition to Court Cost and Fines.
**Limited Driving Privilege fee is $100 in addition to Court Cost (only available for those convicted of Levels 3, 4, or 5).
**If Limited Driving Privilege requested for In-State Driving
Thirty days after your charge date, you will be eligible, in most circumstances to get your license back while awaiting the outcome of your case. If you need your license immediately, you may be eligible to receive a limited driving privilege during the initial 30 day suspension of your license. You will be required to provide a DL 123 form from your insurance company, complete your alcohol assessment earlier than normally requested, and wait the initial 10 days. I will get the appropriate documentation approved by the District Attorney’s office and have the Judge issue your 20 day privilege. You would be required to pay the Clerk of Court a $100 fee for the preliminary limited driving privilege. You will still be required to comply with the reinstatement fee of $100 after 30 days (even if you have paid the $100 for the twenty day privilege). If blood was taken in your case you will only lose your license pre-trial for some future 30 day time frame if the results come back at an impairing level and you are then notified by the NC DMV to surrender your license for 30 days. We will advise you about having an alcohol assessment and the appropriate timing of completing the assessment. Once you have paid your reinstatement fee to the Clerk’s office after 30 days from the charge date, obtained an alcohol assessment as advised, and reviewed your discovery as requested, you have completed all that we expect of you and you can then expect that I will put my experience to work for you in court.