North Carolina DWI Levels and Aggravating/Mitigating Factors

If someone has received a DWI in the state of North Carolina there is a wide spectrum of sentences and penalties an individual may face.

At the lower end of punishment is generally a sentence of 24 hours of community service, a fine of $200 (including court costs), and a probationary period, including required substance abuse assessment, and possibly an ignition interlock device will be required to be installed. Even in the least serious DWI cases, the defendant’s driver’s license will be suspended, but with the possibility of obtaining a limited driving privilege for work and school.

In North Carolina, DWI sentencing is broken into six levels.

From most severe to least severe, the DWI sentencing levels are as follows: Aggravated Level One, Level One, Level Two, Level Three, Level Four, and Level Five.  This 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; and then they will determine the appropriate level of sentence.  At this hearing, the State bears the burden of proving the existence of aggravating factors using the criminal standard, beyond a reasonable doubt.  Further, the defendant has the burden of proving the existence of any mitigating factors by a preponderance of the evidence.

Now we will discuss the factors and how the judge will determine grossly aggravating factors, aggravating factors, and mitigating factors.  Further, there is a description of the criteria for determining placement in each, based on balancing of aggravating and mitigating 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 The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20‑38.7.

(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.

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.

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,
• 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
  • 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 when:
• 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
  • 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 when:
• 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 when:
• 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 when:
• 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.