Factors in DWI Sentencing

One of the primary questions we get when someone has been charged with a DWI in Raleigh, NC or the surrounding areas is, “Am I going to jail?” While the answer to that question is usually, “No,” it is important to understand how DWI sentencing works in North Carolina.

As has been discussed in other posts, there are six levels of sentencing for DWI in North Carolina. From most severe to least severe, the DWI sentencing levels are: Aggravated Level One, Level One, Level Two, Level Three, Level Four, and Level Five. The DWI sentencing law is outlined in the North Carolina General Statutes (N.C.G.S.) § 20-179. Determining the appropriate sentencing level is based in part on what are called aggravating and mitigating factors.

In terms of aggravating factors, they fall into two categories: Grossly Aggravating Factors and Aggravating Factors. These are factors that a judge considers as negative things when determining sentencing in Raleigh and all of North Carolina.

Grossly Aggravating Factors:

  1. A prior conviction for an impaired driving offense if the conviction occurred within seven years of the offense date of the current offense
  2. The defendant was driving on a revoked license from an impaired driving offense at the time of the current offense
  3. Another person is injured as a result of the impaired driving offense
  4. A person under the age of 18 or with the mental development of someone under 18, or someone with a physical disability is in the car at the time the defendant is driving the car

Aggravating Factors:

  1. Gross impairment with an alcohol concentration of 0.15 or more
  2. Reckless or dangerous driving
  3. Driving while the defendant had a revoked license (for something other than a driving while impaired offense)
  4. Negligent driving resulting in an accident
  5. Feeling to elude conviction
  6. Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned 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.
  7. Conviction of speeding of at least 30 miles per hour over the legal speed limit
  8. Passing a stopped school bus
  9. Any other factor that aggravates the seriousness of the offense

Obviously, #9 is a vague catch all that gives a judge the flexibility to determine that any specific factor be aggravating.

Mitigating Factors:

  1. Slight impairment where the alcohol concentration did not exceed 0.09 or no chemical analysis available
  2. Safe and lawful driving at the time of the offense other than the impairment
  3. A statutorily safe driving record
  4. Impairment resulting from a lawfully prescribed drug taken within the prescribed dosage
  5. Participation in and completion of an alcohol assessment and prescribed treatment
  6. Completion of 60 days of abstinence of alcohol usage, proven by continuous alcohol monitoring system
  7. Any other factor that mitigates the seriousness of the offense

Again, the last factor is vague, but generally, an attorney will mention if a defendant was polite and cooperative with the officer.

A judge would consider all of these factors at the time of sentencing for a DWI conviction in Raleigh, whether the conviction be a result of a plea or a trial. It is a judge’s responsibility to balance all of these factors to determine placement in the six different sentencing levels.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.