Level of Punishment for a North Carolina DWI

Determining the Level of Punishment for a North Carolina DWI (After December 1st 2011)

If you have been charge with and subsequently been found guilty or plead guilty to a DWI charge in Wake County or another part of North Carolina the next issue you will face is the sentencing hearing. The sentencing hearing for a DWI conviction is required by statute § 20 179. A sentencing hearing will focus on the factors that existed when you were originally charged and some factors from your past history. The trial court is required to hear evidence and determine the existence of 3 types of factors for a DWI. They are 1.) Grossly Aggravating Factors 2.) Aggravating Factors and 3.) Mitigating Factors.

As of December 1st of 2011 there are 6 levels of punishment for a DWI conviction. Listed in declining severity of punishment; they are Aggravated Level I, Level I, Level II, Level III, Level IV, and Level V. “Level 5” is the least punitive while “Aggravated Level 1,” which carries a Maximum jail sentence of 36 months, is the most punitive. The difference in punishment can change drastically depending on which DWI punishment level you come under.

How does the Court determine what Level of sentence you should receive?

The Court will weigh the 3 different types of factors and their finding of factors will place you, by statute, in a specific level for punishment. The 3 types are 1.) Grossly Aggravating Factors 2.) Aggravating Factors and 3.) Mitigating Factors. The Court shall consider evidence of Aggravating or Mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists. This means that the State (the Prosecutor or DA) has a higher standard at which to prove aggravating factors.

What are the Factors for DWI Punishment Levels for Sentencing in North Carolina?

Grossly Aggravating Factors

(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. 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
c. 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.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20 28, and the revocation was an impaired driving 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 offense.
(4) Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.
In imposing a Level One or Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) of § 20 179 in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f) of § 20 179.

Aggravating Factors

(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.

Mitigating Factors

(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 Department of Correction.
(7) Any other factor that mitigates the seriousness of the offense.

How does the court determine which Level is appropriate for my DWI conviction?

Determining which Level you are sentenced at depends on what and/or how many Factors the Court finds the existence of.

Aggravated Level 1 Punishment for a DWI- To sentence at this level the Court must find the existence of at least 3 Grossly Aggravating Factors.
Level 1 Punishment for a DWI - To sentence at this level the Court must find the existence of at least 2 Grossly Aggravating Factors or one of the Grossly Aggravating Factors listed in the General Statute § 20 179.
Level 2 Punishment for a DWI- To sentence at this level the Court must find the existence of 1 Grossly Aggravating Factor
Level 3 Punishment for a DWI - To sentence at this level the Court must find that the Aggravating Factors are greater than the Mitigating Factors
Level 4 Punishment for a DWI- To sentence at this level the Court must find that there are no Aggravating Factors or Mitigating Factors, or that the Aggravating Factors offset the Mitigating Factors.
Level 5 Punishment for a DWI- To sentence at this level the Court must find that the Mitigating Factors are greater than the Aggravating Factors

If you or someone you know has been charge with a DWI then you should contact a Wake County DWI lawyer and have them explain your rights and options. Eric Gurney is a former Wake County Magistrate with extensive experience in DWI procedure. If you need a Raleigh DWI lawyer then call Eric Gurney at (919) 930-4027 for aggressive DWI representation. The Gurney Law Firm handles DWI cases in Wake County, Durham County, Apex, Raleigh, Wake Forest, Cary and surrounding areas.

The SBI Crime Lab Gets New Director

October 25, 2011 by  
Filed under Criminal Law

The SBI Crime Lab Gets New Director

Criminal defense attorneys around the state of North Carolina are breathing a little easier after the SBI crime lab named a new director.
The new man in charge is former Greensboro judge Joe Johns.  He has no science background, but has drawn high praise for his management skills over the last year as interim director.  He was appointed by North Carolina Attorney General Roy Cooper and SBI director Greg McLeod.

The News and Observer reported that the previous director, Jerry Richardson, was removed from the position last year after a range of questions about the lab’s work in criminal cases.  Richardson did not have a science background and had struggled to explain lab policies during the scrutiny last year.

The SBI Crime Lab came under fire when two former FBI officials wrote an audit that flagged more than 200 cases in which the lab’s reporting of tests was in question.

As a Criminal defense attorney in Raleigh, NC, I cannot state how glad I am to see the SBI Crime Lab take such a positive turn.  It seemed to
be a real blow to the State of North Carolina and the judicial system when all these initial concerns about integrity of the lab were brought up.

If you have a case that involves the SBI crime lab contact Raleigh criminal defense lawyer Eric Gurney at (919) 930-4027.