Introduction to North Carolina DWI Laws
North Carolina recognizes a privilege, not a right to drive. As a consequence, North Carolina's view of traffic laws and traffic offenses can be harsh. This applies in particular with DWI/DUI and drunk driving cases.
In addition, the policy of most District Attorneys, including the Wake County District Attorney, is that anyone charged with a drunk driving offense either must plead guilty to that offense, or go to trial. The Wake County District Attorney rarely accepts pleas to lesser charges in exchange for dismissal of the charge. At most, if a plea deal is negotiated, it may involve the dismissal of related traffic offenses or other misdemeanors that may have been charged at the same time as the DWI.
As a result, drivers who are stopped and charged with a Driving While Impaired offense in Wake County frequently go to trial, unless the DA agrees to a favorable sentencing recommendation.
These laws are codified at N.C.G.S. 20-138.1 and 20-179. In addition, there are a variety of related statutes that govern the way chemical analysis must be performed, the way in which defenses can be raised, and the certification of various experts (in blood, breath, or HGN testimony) in a DWI context.
A North Carolina prosecutor can prove impairment in one of three ways. Either the prosecutor can prove that the driver had a breath or blood-alcohol concentration of 0.08 or higher (BAC). Or the prosecutor can prove through other evidence that the driver had appreciably impaired faculties at the time he or she was driving. Or the prosecutor can prove that the person had any amount of a Schedule I (heroin, and related drugs) in his system at the time of the offense.
Blowing a 0.08 is legally enough to prove impairment. But it is not necessary. Even if someone blows under a .08, a prosecutor could show, through officer testimony, video or other kinds of witness evidence, that the driver couldn't walk straight, slurred words, had blood shot eyes, failed the horizontal gaze nystagmus test, and was driving the car erratically. This might be enough to prove to the trier of fact (the judge or jury) that the person was impaired while driving.
In addition, North Carolina imposes lower BAC limits in certain cases. If you're under 21, NC has a zero tolerance law that says that a BAC of any amount more than zero is a class two misdemeanor. And those who drive commercial motor vehicles can't have a BAC of .04 or higher. In addition, if the person was driving on a restricted license that allowed him to have no more than .04 BAC in his body while driving, NC may be able to prove an impaired driving offense based on a lower BAC.
Per Se Law: .08 or higher.
Not necessarily. There are many ways to challenge a breathalyzer result that's over .08, and going to trial, rather than accepting a plea agreement, may be the right approach.
First, the police must have a sufficient reason to stop and conduct the exam. Police in this country are not permitted to simply stop drivers at random and give them breathalyzer tests. If you were otherwise driving properly, your car inspection was valid, and so forth, you may be able to challenge the DUI conviction because the police lacked a reason to stop you and test you.
Second, the police must have probable cause to believe an impaired driving offense had occurred in order to arrest you. If the arrest is made without a proper showing of probable cause, a court may rule the arrest invalid, and strike (or suppress) any evidence the police officer collected following the arrest including, but not limited to, the breathalyzer or blood result.
Third, the prosecutor must show that the state's breathalyzer machine was functioning properly and that the testing of the defendant was done in accordance with appropriate procedures.
If a criminal or DUI defense attorney can show one or more of the following elements, he may be able to show that the test was administered incorrectly and the results are scientifically unreliable.
- The person administering the test was not properly trained or qualified.
- The person did not observe the driver long enough prior to the exam to ensure that the driver did not eat or put anything in his or her mouth that would alter the results.
- The driver suffers from a disease, such as diabetes, that may produce artificially high results on a breathalyzer.
- The machine was improperly calibrated
- The breathalyzer exam was given too long after the initial traffic stop.
- The breathalyzer machine was not plugged into a dedicated electrical circuit.
There may be other reasons to challenge the breathalyzer machine's results.
Finally, in certain circumstances, it may difficult for police to prove that the person they think was the driver was, in fact, the actual driver of the vehicle. Or, where there's been a wreck and police show up to the scene some time after the vehicle comes to rest, the police officer may have difficult showing that the person didn't drink after the driving.
DWI Sentencing Levels
If a driver is convicted of a DUI under North Carolina's drunk driving statute, the driver is eligible for one of six levels of punishment. Level Five (5) is the most lenient, least serious level. Aggravated Level One (1) is the most serious, worst level.
Levels are determined following conviction during a brief sentencing hearing.
Level 5 is the least severe level. In order to find a Level 5, the judge must find that there were no grossly aggravating factors, and that the mitigating factors substantially outweigh the aggravating factors.
Punishment for a Level 5 DUI conviction involves a fine of up to $200 (in addition to court costs), and imprisonment for between 24 hours and 60 days. If the sentence is suspended, then judge must impose any combination of 1) an imprisonment for 24 hours or 2) at least 24 hours of community service to be completed within 30 days of the sentencing.
Level 4 is someone more severe than Level 5. In order to find a Level 4, the judge must find that there were no grossly aggravating factors, and that any mitigating factors are balanced by aggravating factors. For instance, if there was a mitigating factor, the judge may also find an aggravating factor, so that they are roughly equal.
Punishment for a Level 4 DUI conviction involves a fine of up to $500 and imprisonment for between 48 hours and 120 days. If sentence is suspended, the judge must impose any combination of 1) imprisonment for 48 hours or 2) at least 48 hours of community service to be completed within 30 days.
Level 3 is more severe than Level 4. In order to find a Level 4, the judge must find that there were no grossly aggravating factors, and that aggravating factors substantially outweigh mitigating factors.
Punishment for a Level 3 DUI conviction involves a fine of up to $1,000 and imprisonment for between 72 hours at 6 months. If the sentence is suspended, the judge must impose any combination of 1) imprisonment for 72 hours, 2) at least 72 hours of community service to be done within 90 days of sentencing.
Level 2 is more severe than Level 3. In order to find a Level 2, the judge must find that there was one grossly aggravating factor. The judge will not weigh aggravating and mitigating factors, except as it might affect the judge's determination of how much punishment he will give under Level 2 sentencing guidelines.
Punishment for a Level 2 conviction involves a fine of up to $2,000 and imprisonment for 7 days to 12 months. If the sentence is suspended, the judge must impose an active term of 7 days in jail.
Punishment for a Level 1 DWI conviction involves a fine of up to $4,000 and imprisonment for at least 30 days and up to two years.
Aggravated Level 1 is the most severe misdemeanor Driving While Impaired level. If a judge finds more than two grossly aggravating factors, the judge will sentence the driver to an Aggravated Level 1 punishment.
Punishment for an Aggravated Level 1 DWI conviction involves a fine of up to $10,000 and imprisonment for between 120 days and 3 years. If the judge suspends the sentence, the driver will be jailed for at least 120 days.
Statutory Factors: Aggravating, Mitigating, and Grossly Aggravating
Levels are determined by weighing aggravating and mitigating factors, or by finding the presence of grossly aggravating factors.
The following are the various statutory factors (N.C.G.S 20-179).
Grossly Aggravating Factors:
- A prior DWI conviction within 7 years of the date of the new DUI offense.
- An intervening DWI conviction.
- The offense was committed while the defendant's license was revoked for a prior DUI.
- The offense resulted in a serious injury to another person.
- A child under the age of 18 was in the car at the time of the offense. (Level 1 must be imposed.)
- A BAC of 0.15 or more.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Two ore more prior convictions of a motor vehicle offense not involving impaired driving for at which 3 points were assigned.
- Attempting to elude apprehension.
- Speeding by at least 30 miles per hour over the legal limit.
- Passing a stopped school bus.
- Or any other aggravating factor that increases the seriousness of the offense.
- Slight impairment, meaning a BAC that did not go over 0.09.
- Driving was otherwise safe at the time of impairment.
- A safe driving record
- Impairment was the result of a lawfully prescribed drug.
- Voluntary submission to a mental health facility for an assessment.
- Completion of a substance abuse assessment, and maintaining 60 days of monitored, abstinence from alcohol.
- Any other factors that mitigate the seriousness of the offense.
Refusal to Submit to a Breathalyzer Test
If the driver refuses to submit to a test of their BAC, the driver may be faced with a separate charge of refusing to submit to a breath test. The penalty for refusal involves an immediate 30 day suspension of a license and an additional one year suspension of of the license. The penalty for refusing to submit to a BAC exam can be imposed even if the driver is never convicted or is found not-guilty of the DWI charge.
A driver who has refused to submit to the exam has a right to a hearing with the DMV prior to the one-year suspension of the license to determine whether the suspension is proper.
At that hearing, the driver can introduce evidence that he or she was not properly notified of his rights, was not notified of the penalties for refusal, was provided with false information about how the evidence would be used, or was provided with false information regarding the presumption of guilty. Finally, the DMV must show that the driver willfully refused the chemical testing.
If you've been convicted of a Level 5, 4 or 3 DWI, the court will require you to perform a number of community service hours as part of your punishment. The judge will decide the exact number of hours, but for Level 5 DWIs the judge usually will impose 24 hours of community service. If you've been convicted and hours have been imposed, then you must perform those hours through a Community Corrections's Community Service supervisor who will assign you a location.
In some cases, particularly DWI cases that are either egregious or likely to result in a conviction because of "bad facts," you might be well advised to perform your community service prior to entering your plea. This will show a judge that you are serious about making up for your mistake and will be much more convenient, especially if you're about to lose your driving privileges or must have an Interlock device installed in your car.
Here is a list of various non-profits around the Research Triangle and in Wake County that are usually in need of volunteers. Remember that they are doing you a service by allowing you to complete your community service at their locations, so be gracious and pleasant and you will have an easier time completing your hours. And make sure you get a letter on letterhead for your lawyer to present to a Court.
If you're convicted of a Level 5, 4, or 3 DWI, you will face at least a one-year license suspension. In most cases, you will be eligible for a Limited Driving Privilege that will allow you to drive to and from work and, in some cases, allow you to drive for household-related purposes, such as food shopping, running errands, and picking up the kids from school. An LDP is not guaranteed, and is in the sound discretion of the sentencing judge. In order to obtain an LDP, you will need to show that you have properly insured (via a DL-123 form from your insurer), you have completed a Substance Abuse Assessment, and you have a Driving Record that indicates no DWI convictions with the past 7 years of the current offense.
If you're convicted of an Aggravated Level One, Level One, or Level Two offense, you will face at least a four-year suspension and no ability to have a Limited Driving Privilege. You may, in certain circumstances, be eligible for a DMV hearing after two years during which you may be able to secure at least a limited driving privilege, depending on that hearing officer's determination.
If you are without a license or a Limited Driving Privilege, your options are very limited in terms of transportation, given that most of North Carolina has very poor public transportation options. One option that may work is the use of a Moped which, in North Carolina, does not require a license or registration to operate. A moped is defined in N.C.G.S. Sec. 105-164.3 as a:
A vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.
Unfortunately there is no way to avoid the license implications of a DWI conviction other than by winning the DWI outright through a not guilty verdict or dismissal. The prosecutor cannot agree to permit you to keep your license in exchange for your guilty plea.
Interlock Ignition Device
Regardless of which level the person is sentenced to, a person who registers a .15 or greater BAC is required to have an Interlock device installed in his or her vehicle for at least one year before ever being validly licensed in North Carolina again. This device must be installed before the person can be granted a Limited Driving Privilege (LDP). In addition, the LDP for someone who registers a .15 or more only permits the person to drive to and from work location for work-related purposes. The person may not have an LDP for household-related purposes during the year. Finally, the person must wait a 45-day period post-conviction before he or she is permitted to drive in this circumstance. In order to have an Interlock device installed on the vehicle, the person must schedule an appointment with Monitech, the sole Interlock provider authorized by the NC DMV. Monitech has a local office in Morrisville, NC.
Effect on Insurance Rates
A DWI can raise insurance rates by 400 percent for the entire experience period (three years) following conviction. This may, in fact, be the most costly result of a DWI conviction. You can help mitigate the increased rates by switching to less expensive insurance or considering reevaluating your comprehensive insurance. Discuss this matter with your insurance agent, because you don't want to be underinsured while at the same time you want to save money.
Effect on Employment
A citation or arrest - including an arrest for a DWI - is a public record, and remains a public record until and unless the case is expunged. As a result, your employer may learn of your arrest. Whether your employer will take action is not a legal question. Since North Carolina is a Right to Work State, employers can fire for any number of reasons that are non-discriminatory, including for having been arrested for a DWI. If you are fired as a result, you likely have no recourse.
The good news is that most people are never fired for a DWI. Whether you wish to tell your employer (supervisor, boss) about your arrest is something you can discuss with your lawyer, but is not really a legal question. You may wish to be upfront with your employer, hoping that being frank and honest will avoid the worst. In some cases, you may be required as part of your employment contract to inform your employer about any criminal matters.
You may also be required to report a DWI to a licensing agency. Lawyers, for instance, must report DWIs to the State Bar. Medical professionals may be required to report pending criminal matters to their licensing agencies. Generally, failure to report is worse than simply reporting and facing the immediate consequences. So if you're require to report, report quickly and fully after consulting with your lawyer.
A DWI in Wake County may take anywhere from two months to two years to resolve. The time it takes depends on many factors, most of which are out of your or your lawyer's control. They involve the availability of the arresting officer and outside witnesses, as well as how quickly tests may be run by the State Bureau of Investigation (SBI) on your blood. You should expect to be at every one of your court appearances, which are more or less each month on the arresting officer's court date.
If you are an out-of-state resident, you may be excused by having your lawyer file a Waiver of Appearance in your case. While DWIs are technically non-waivable offenses, exceptions can be made with the DA's consent and the Judge's permission to waive your presence. The Waiver of Appearance form should state your name, and reason for your absence from court, and your acknowledgement that you're granting your attorney the authority to resolve the case in your absence.
If you win - either through a dismissal because the State can't bring its witnesses to court or after a hearing or trial - then your case will end in District Court.
If you lose, you may, at your option, choose to appeal the case for a brand new de novo trial in Superior Court in front of a jury. This trial de novo is an entirely new trial, and none of the rulings by the District Court judge have any force. In addition, while you wait for your new trial, you are presumed not guilty and the case remains pending, which allows you to keep your driving privileges (if you have them).
A trial de novo in Superior Court may take as long as two years given the sheer volume of appealed cases in Wake County. Other counties may get to your matter more quickly. A typical DWI trial may be two or three days, and will culminate in a verdict by jury that will ultimately decide your fate. One downside of an appeal is that a judge can impose a harsher sentence in Superior Court, including jail time, even for Level 5 DWI convictions. While jail time for Level 5 offenses is rare, it is possible in Superior Court and one reason to talk about the value of the appeal in your case.
Your Criminal Record and Expungements
A DWI can't be expunged if you were over 18 at the time of the offense and you were convicted of the charge. In addition, it will remain on your record for the rest of your life if it is not expunged.
You may, however, be eligible for expungement if you have never had an expungement before in North Carolina, and you either won your DWI and got a "not guilty" or it was voluntarily dismissed.
Old and VL'd DWI's
DWIs that were never fully resolved may be held in a special status called VL - short for "voluntarily dismissed with leave" - that will prevent you from holding a valid driver license in North Carolina (or anywhere else in the United States). These DWIs can be rectified, but will usually require you to plead guilty to the charge in order to convince the District Attorney to reinstate them. If they're not handled, the can perpetually prevent you from being able to obtain a valid driver license. While there's some reason to believe this practice of keeping cases in VL status is unconstitutional, in the practical world raising a constitutional challenge will not get you very far and certainly prolong your ability to get your license back.