DWI: A Serious Offense, A Serious Lawyer

A Driving While Impaired offense is a criminal offense – usually a misdemeanor, where the state is not claiming a habitual DWI or a DWI resulting in the death of another person – where a person has operated a vehicle on a highway, street, or other public vehicular areas while under the influence of an impairing substance or with a Blood Alcohol Concentration (BAC) of .08 or above while driving.

In order to prove that someone has committed a DWI, the prosecutor must prove beyond a reasonable doubt each of the elements listed above.

That is to say, the prosecutor must prove that the person was operating a vehicle upon a public vehicular area while impaired.

Where the state cannot prove that the person was operating or driving the vehicle, the state may fail to prove the DWI. For instance, if the alleged driver was actually not in the vehicle at the time police or witnesses arrived on the scene, the prosecutor may be unable to prove the person was driving the vehicle while impaired.

Note that if the vehicle is running, although not in gear, the state will be able to prove operation.

The state must also prove that the person was operating a “vehicle.” For DWI purposes, a vehicle includes cars, trucks, and the obvious. But NC also includes golf carts, tractors, bicycles, mopeds, and scooters as “vehicles.” Even though the DMV may not require a license for the operation of a moped, if  you are caught driving a moped on a public vehicular area while impaired, the state will be able to prove a DWI.

A public vehicular area does not just include public streets, highways, and roads. A public vehicular area includes “private” roads that are shared by various homes, and parking lots.

A public vehicular area will not include your driveway, however.

The state can prove impairment in either one of two ways. The first way is typically called the “common law” approach to proving a DWI. This includes any observations by the police officer or other witnesses that the driver was “appreciably impaired”. The police officer may observe a strong odor of alcohol, slurred speech, unsteady movement, confusion, swerving of the car or poor or dangerous driving.

In addition, the police officer may conduct NHTSA Standardized Field Sobriety (SFST) Tests. These tests include the walk and turn, the one leg stand, and the Horizontal Gaze Nystagmus tests. The officer will generally point to “clues” of impairment, which include failure to follow instructions, failure to complete the tests according to instructions, unsteadiness, and so forth.

The second way to prove impairment is through the use of a breath or chemical test. A Breath Test involves testing using the Intoxylizer 5000, a machine first developed in the 1980s and early 1990s, that tries to measure the person’s Blood Alcohol Concentration by measuring the amount of alcohol in the person’s breath.

The police officer or chemical analyst will have the subject blow twice into the machine, and take the lower of the two blows.

If the state is able to prove its case beyond a reasonable doubt, the fact finder – either a judge or a jury – will find you guilty of a DWI. The next step in your case will be “sentencing.”

Sentencing involves a weighing of factors in your case, and the imposition of a sentence within one of five (5) sentencing levels.

First, the state may allege grossly aggravating factors. If the state is able to prove two grossly aggravating factors beyond a reasonable doubt, you will be convicted of a Level 1 DWI. A Level 1 DWI is the second most serious conviction level within the Misdemeanor Driving While Impaired law. If the prosecutor proves more than two grossly aggravating factors, an Aggravated Level 1 DWI, the most serious conviction level within a DWI, is imposed.

If the state is able to prove only one grossly aggravating factor beyond a reasonable doubt, you will be convicted of a Level 2 DWI. A Level 2 DWI is the second most serious conviction level within the Misdemeanor Driving While Impaired law.

The reason why Aggravated Level 1, Level 1 and Level 2 are the most serious is for two reasons. First, the judge is required to impose a jail or prison sentence. The judge may not “suspend” the sentence and allow you to serve probation. Second, you are ineligible to get a limited driving privilege during the period of your license suspension.

In addition, Aggravated Level 1, Level 1 and Level 2 are the most serious in terms of fines. Aggravated Level 1 has fines of up to $10,000.

What are the Grossly Aggravating Factors?

1) A prior DWI within the past 7 years measured from the date of your previous conviction to your date of your current offense. So if you were arrested for a DWI offense on November 20, 2002 and convicted of a DWI in January 1, 2003, and were arrested of a DWI on December 25, 2009, you would have one (1) grossly aggravating factor because your new offense date is within 7 years of your prior conviction date.

2) If you are arrested of a DWI and between being sentenced, you receive a second DWI, then you will have one (1) grossly aggravating factor.

3) If you were arrested for a DWI while driving on a revoked license if the license was revoked for a prior DWI, then you will have one (1) grossly aggravating factor.

4) If a child under the age of 18 was in the vehicle at the time of the DWI, then you will have one (1) grossly aggravating factor for which Level 1 punishment must be imposed.

5) If as a result of your DWI, you seriously injured another person, then you will have one (1) grossly aggravating factor.

The judge will count up all of your grossly aggravating factors. If you have two (2) or more grossly aggravating factors, you will be sentenced under Level 1. If you have one (1) grossly aggravating factor, you will be sentenced to Level 2.

If you have no (0) grossly aggravating factors, then the judge looks at aggravating and mitigating fators.

Aggravating factors can include: Gross Impairment (.15 or above BAC), especially reckless or dangerous driving, negligent driving resulting in a reportable accident, driving on a revoked license, two or more prior convictions of a motor vehicle offense not involving a DWI for which at least three (3) points are assigned or for which a license can be revoked if those convictions occurred within five (5) years of the offense for which the person is being sentenced, or one or more prior convictions for a DWI that occurred more than ten (10) years before the date of the offense, conviction under N.C.G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension, speeding in excess of 30 mph, passing a stopped school bus, and “any other factor that aggravates the seriousness of the offense.”

Mitigating factors can include that the Defendant has volunatarily submitted his/herself to an alcohol or drug treatment center for an assessment of potential substance abuse problems, a statutorily safe driving record for the previous five years, safe and otherwise lawful driving at the time of the offense, a low BAC under .10, impairment from lawfully prescribed medicine taken for an existing medical condition, or any other factor that mitigates the seriousness of the offense, including being “polite and cooperative” with the police officer.

If the judge finds that the mitigating factors “substantially” outweigh the aggravating factors, the person will be sentenced to Level 5. If the judge finds that the aggravating factors substantially outweigh the mitigating factors, the judge will sentence the person to Level 3. Otherwise, the judge will sentence the person to Level 4.

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.