Grossly Aggravating Factors
North Carolina's DWI Sentencing Statute is found at N.C.G.S. 20-179. What follows is a plain language translation of the statute.
First, the fact finder (the judge or the jury) will determine whether there are any grossly aggravating factors or aggravating factors. Grossly aggravating factors are really bad factors which cause enhanced punishment.
The following are "grossly aggravating" factors:
- 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).
- A conviction which occurred after the offense date but before or while the current DWI is being sentenced;
- The Driving While Impared occurred while the Defendant's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
- A child under the age of 18 was in the vehicle at the time of the DWI. (Requires Level 1 Sentence)
- 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. 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. Aggravated Level 1 is the harshest sentencing level under the misdemeanor Driving While Impared statute.
Note that the law also changes the way an offense 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 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:
- 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.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Driving by the defendant while his driver's license was revoked (for a non DWI related offense).
- 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 ten years before the date of the offense for which the defendant is being sentenced.
- Conviction under N.C.G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
- Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
- Passing a stopped school bus in violation of G.S. 20-217.
- Any other factor that aggravates the seriousness of the offense.
Aggravating factors are weighed against mitigating factors. Mitigating factors include:
- 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.
- A statutorily safe driving record for the previous five years.
- Safe and otherwise lawful driving at the time of the offense.
- A low BAC reading from the Chemical Analysis (.08 or .09 results are considered low).
- 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.
- Any other factor that mitigates the seriousness of the offense. Many judges will recognize that the person was "polite & cooperative" with the arresting officer as a mitigating factor. In addition, many judges will consider standard N.C.G.S 15A sentencing factors as mitigating factors in a DWI case.
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, your goal will be to stay out of Aggravated Level 1, Level 1 and Level 2, which are the harshest sentencing levels, and to try to get into Level 5, which is the best sentencing level to be in.