Posted on November 4, 2011 by admin
In calculating a DWI offense in NC, driving records from all states in which a person has driven must be considered. Whether it is an NC DWI or DWI in another state, the prior DWI will be taken into consideration by the court or the DWI assessment agency.
If a person receives a DWI in any other state, and gets another DWI in NC within 3 years, the NC DWI will be considered a second offense by the court.
- First Offense: If there have been no prior DWI convictions within the last 3 years, the loss of license will be for one year The three years is counted from one DWI arrest date to the next. The date a case was tried in court and license was revoked is not considered in this situation.
- Second Offense: Receiving two Driving While Impaired charges within 3 years will result in a second offense DWI charge if the first DWI resulted in a conviction. Loss of your North Carolina license will be for four years. There is a possibility of having a hearing by the NC DMV to restore your license after 2 years if you have completed a DWI substance abuse program and have made significant changes in your lifestyle. These changes will have to verified by witnesses at a DWI DMV hearing.
- Third Offense: Three DWI offenses within 10 years, and the last 2 occurred within 5 years will result in permanent loss of Driver’s License. However, after 5 years, the DWI offender can request a hearing by the North Carolina Division of Motor Vehicles to reinstate the Driver’s License.
- Habitual Impaired Driving: Receiving a fourth DWI conviction within a 10 year period will result in a conviction of Habitual Impaired Driving. This DWI is considered a felony and a minimum prison sentence of one year. The prison sentence can not be suspended or shortened for any reason. Loss of Driver’s License is lifetime and cannot be reinstated at any time. No appeals are allowed by the North Carolina DMV for a conviction of Habitual Impaired Driving.
The NC Legislature has changed the 10 year limit on 3 DWIs. In the new law passes, receiving 3 DWIs lifetime will constitute “Habitual Driving While Impaired.”
If you are convicted of Driving While Impaired in the State of North Carolina a number of things happen. After the hearing in court where the Judge listens to the police officer, the District Attorney, and you attorney, the Judge will determine guilt. If found guilty, you will receive one of 5 levels of punishment. Level One is the most severe and Level 5 the least severe.
NC DWI Levels I & II always result in active jail time, according to NC DWI laws. The jail time may range from 1 – 2 weeks all the way to 2 years for a level I NC DWI offense.
Factors That Determine Level of Punishment:
Below is a description of the DWI and DUI Levels of Punishment and what you can expect to happen as a result of a conviction for a North Carolina DWI. First I will list most of the factors which are considered by the Judge in determining the Level of Punishment. These are the Grossly Aggravating Factors, Aggravating Factors, and Mitigating Factors.
- Grossly Aggravating Factors are considered the most serious conditions which occurred during the DWI arrest. The factors which are considered Grossly Aggravating are:
1. A prior conviction for an offense involving impaired driving (DUI or DWI) if:
a. The DWI conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The DWI conviction occurs after the date of the offense for which the defendant is presently being sentenced, prior to or simultaneously with the present sentencing. Each prior conviction is considered a separate grossly aggravating factor by the State of North Carolina.
2. Driving by the defendant at the time of the DWI offense while his drivers license was revoked under G.S. 20-28, and the revocation was an impaired driving (DWI or DUI) 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 DWI offense.
4. Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the DWI offense.
Aggravating Factors “aggravate” or increase the seriousness of the offense but are not considered quite as serious as the above factors.
Factors that aggravate the seriousness of the DWI offense:
1. Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.16 or more within a relevant time after driving.
2. Especially reckless or dangerous driving during the DWI offense.
3. Negligent driving that led to a reportable accident during the DWI offense.
4. Driving by the defendant while his drivers license was revoked.
5. Two or more prior convictions of a motor vehicle offense not involving impaired driving (DWI or DUI) 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 during the DWI arrest.
7. Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit during the DWI offense.
8. Passing a stopped North Carolina school bus in violation of G.S. 20-217.
9. Any other factor that aggravates the seriousness of the DWI offense.
Mitigating Factors are factors which are in your favor and “mitigate” the seriousness of the DWI offense. The Mitigating Factors are always considered in your favor and can lessen the level of punishment you receive from the Judge.
Mitigating Factors are:
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 driving.
2. Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant at the time of the DWI charge.
3. Driving at the time of the DWI 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 DWI 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. (Often people do not know that they may be charged and convicted of DWI resulting from taking prescribed medication, taken as prescribed. However, this type of DWI charge is just as serious in some ways as a DWI charge because of alcohol or street drugs.
6. The defendant’s voluntary submission to a mental health facility for DWI alcohol and drug abuse 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 DWI substance abuse treatment.
A “DWI assessment’ consists of a meeting with a substance abuse counselor to determine if an alcohol or drug abuse issue exists. There are two parts to a DWI assessment: a “clinical interview” and a NC DWI Services approved “standardized substance abuse test.”
For more information about the NC DWI assessment, education (ADETS) and treatment, see our DWI Assessment pages.
Levels of Punishment for DWI in NC
If a person is found guilty of Driving While Impaired (DWI in North Carolina), the Judge will consider all of the factors listed above. Once all the factors are considered, the Judge will impose one of the following Levels of Punishment. The five levels of punishment are numbered 1-5.
1. Level One DWI is the most serious level of punishment. If the Judge finds 2 Grossly Aggravating Factors are present, he or she will impose Level one punishment Level One Punishment. A Level One North Carolina DWI is punishable by a fine up to $4,000 and a minimum jail sentence of 30 days and a maximum of two years. A judge cannot suspend the minimum jail sentence.
2. Level Two DWI punishment will be imposed if the Judge determines one Grossly Aggravating Factor is present. Level Two is punishable by a fine up to $2,000 and a minimum jail sentence of seven days and a maximum of one year. A judge cannot suspend the minimum jail sentence.
3. Level Three DWI punishment will be imposed if there are no Grossly Aggravating Factors involved and the Mitigating Factors and Aggravating Factors are considered equal and balance each other out. Level Three is punishable by a fine up to $1,000 and a minimum jail sentence of 72 hours and a maximum of six months. A judge can suspend the sentence.
4. Level Four DWI is imposed if the Mitigating Factors outweigh the Aggravating Factors. Level Four conviction is punishable by a fine up to $500 and a minimum jail sentence of 48 hours and a maximum of 120 days. A judge can suspend the sentence.
5. Level Five DWI punishment is imposed if there are only Mitigating Factors and no aggravating factors exist. Level Five is punishable by a fine up to $200 and a minimum jail sentence of 24 hours and a maximum of 60 days. A judge can suspend the sentence.
All levels of a North Carolina DWI conviction require a revocation of your Driver’s License for a period of at least one year beginning with the date of the DWI conviction. For levels three through 5, the court often suspends jail sentences if the driver agrees to complete community service, submit to a DWI Assessment, complete the level of treatment required by the NC DWI assessment, and pay all fines, fees and court costs related to the DWI arrest and conviction.