DWI/DUI Penalties

Protecting your rights when charged with a DWI / DUI

Everett Law Firm, P.A. is located in Chapel Hill serving Raleigh, Durham and many surrounding counties in North Carolina.  Our attorney’s objective is to evaluate your DWI or DUI case and explain your options while reviewing the various courses of action available based on the specific facts of your situation.

For people found guilty of misdemeanor charges of Driving While Impaired in North Carolina, there are five (5) DWI/DUI punishment levels.  Level One DWI is the most severe while Level Five DWI is the least severe.

Below is a list of the statutory Grossly Aggravating Factors.  Grossly Aggravating Factors cannot be counter-balanced by mitigating factors no matter how many mitigating factors may be present.

• A prior conviction of any impaired driving offense (certain other charges that are not DWI also qualify) within seven years of the offense date of the Driving While Impaired charge constitutes a grossly aggravating factor.  What this means is that the 7-year clock runs starting from the day the offender was found guilty of the old Driving While Impaired charge to the offense date of the new Driving While Impaired charge, not from offense date to offense date.  For example, if James is charged with Driving While Impaired (DWI) on February 12th 2002 and convicted of the offense on January 24th, 2003, then James will have a grossly aggravating factor if he is charged with another DWI on January 20th, 2010.  However, he will not have this grossly aggravating factor if he is charged with another DWI on February 10th, 2010. Please note that each prior conviction constitutes a separate grossly aggravating factor.
• Driving while one’s license is already revoked or suspended for a previous impaired driving offense constitutes another grossly aggravating factor.  This means that if one is drunk driving while their license is already suspended for a previous drunk driving charge, this grossly aggravating factor is present.  One may think that if this grossly aggravating factor is present, then the previous grossly aggravating factor of having an impaired driving offense within 7 years must be present.  This, however, is not entirely true or correct.  For example, Sam picks up a Level 4 DWI on March 11th 1993.  After a year, Sam does not get his license restored.  In fact, he forgot all about the substance abuse classes he was supposed to take for his DWI conviction.  He goes on and keeps on driving without any further incident for 8 years.  Then one night he goes to a bar and drinks too much and drives again.  Sam is caught and charged with DWI again.  This time even though he does not have a prior DWI conviction within 7 years, his license is still suspended for a prior DWI charge.  Thus, he does have this grossly aggravating factor without the other grossly aggravating factor. 
• An accident occurring resulting in serious bodily injury to another person caused by the offender’s impaired driving constitutes another grossly aggravating factor.  This grossly aggravating factor is not entirely clear, but injuries involving broken legs and compressed vertebrae were determined to be serious enough injuries.  Lesser injuries have also been found by the courts to be enough to trigger this grossly aggravating factor.  A few bumps and scratches should not be enough to constitute serious injury.
• The presence of a child under 16 years of age within the vehicle that the offender was operating constitutes another grossly aggravating factor.  The law does not clearly specify if each child counts as an additional grossly aggravating factor if there are multiple children in the vehicle.  However, it is not likely that the legislature intended that to be the case since the language is absent. 

Here is a list of Statutory Aggravating Factors. 

•  A blood alcohol level of 0.16 or higher at any relevant time after driving or gross impairment of the offender's physical or mental faculties is an aggravating factor.  If the person's blood alcohol content is less than 0.16, this aggravating factor may still be present if the defendant exhibits severe impairment including erratic driving, severely slurred speech, vomiting, or unsteadiness walking or standing. However, if a person is proven to have a blood alcohol content of 0.16 or higher, the aggravating factor is automatically present.
• Especially reckless or dangerous driving is another aggravating factor.  If the defendant's driving has been found to be especially dangerous or reckless, another aggravating factor is present. Examples include running into a telephone pole without breaking, driving on the wrong side of the road, and falling asleep at the wheel due to the impairment of the alcohol. 
• Bad driving that causes an automobile accident severe enough that the accident is required by law to be reported to the authorities.  If an automobile collision occurs and either death, personal injury, or property damage totaling over $1000 occurs, this aggravating factor is present.  In other words, if the impairment causes one to get into a wreck other than a slight fender bender, this aggravating factor is most likely present.
• Driving while one's license is already revoked due to a non-impaired driving offense is another aggravating factor.  As mentioned in the grossly aggravating factors section, if one drives while his or her license is already suspended due to a prior impaired driving offense, there is a grossly aggravating factor.  For this standard aggravating factor to be present, the offender's license is suspended due to failure to appear on non-impaired driving related tickets or an accumulation of license points or speeding offenses.
• A poor driving record in the last 5 years would be another aggravating factor.  A poor driving record consists of 1) One or more impaired driving convictions that occurred more than  seven years from the new offense date 2) Two or more convictions of driving offenses that produce 3 driver's license dmv points 3) Two or more convictions of any motor vehicle violations that would, by itself, authorize dmv to suspend one's license, or 4) A combination of one three point ticket and one offense where the dmv would have been authorized to suspend the defendant's driver's license.
•  Attempting to flee or elude arrest while the impaired driving offense was occurring is another aggravating factor.  This aggravating factor is present when the person tries to run from the authorities. Speeding is actually not required in itself.  As long as the offender is attempting to avoid apprehension from the law enforcement authorities, this aggravating factor is present.
• Speeding 30 mph or more while committing the impaired driving offense is another aggravating factor.  For this aggravating impaired driving factor to be present, the defendant must also be convicted of the speeding offense.
• Passing a stopped school bus while driving while impaired is another aggravating factor in impaired driving.  However, the defendant does not have to actually be convicted separately of passing a stopped school bus for this aggravating factor to be present.  All the state has to do is prove this beyond a reasonable doubt at the time of the DWI trial.
• Any other factor that aggravates the impaired driving is the catch-all aggravating factor. This is thrown in to make it flexible for the assistant district attorney to tack on aggravating factors that the North Carolina legislature did not think of.  It is an all-inclusive  tool for the prosecution.

Here is a list of Statutory Mitigating Factors. 

• Slight impairment that resulted solely from the alcohol and a blood alcohol concentration of 0.09 or less is one mitigating factor.  This mitigating factor is present when basically the person drives fine and demonstrates normal mental and physical faculties.  He or she just happened to get caught driving and had a BAC most likely 0.08 or 0.09.  One requirement of this mitigating factor is that the person must NOT have a blood alcohol concentration of 0.10 or higher.
• Very slight impairment of the offender's faculties that result solely from alcohol  when no chemical analysis was readily available to the defendant.  This one only occurs when the defendant for some reason does not blow in the intoxilyzer machine and does not refuse the chemical analyst's test.  In addition, no other controlled substances may be found in the defendant's bloodstream.  This mitigating factor is also mutually exclusive with the previous one.
• Lawful and safe driving except for the impairment of the defendant's faculties is another mitigating factor.  This factor basically deals with the cases where the police officer pulls the person over for expired registration, inspection, or at a road block.  The defendant cannot have been charged with another motor vehicle offense other than the impaired driving.  If the defendant was only charged with driving while impaired at a checkpoint, and drove perfectly and safely, then this mitigating factor is present.
• A statutorily safe driving record is another mitigating factor.  In North Carolina, to have a statutorily safe driving record, one must have no convictions for any four or more point tickets.  These offenses include passing a stopped school bus, careless and reckless driving,  driving on the wrong side of the road, following too closely, and illegal passing .  In addition, the defendant must not have any conviction for any offense that could in itself trigger the DMV to have authority to suspend one's license.   As long as one does not have any of these convictions within 5 years, he or she has a statutorily safe driving record which counts as a driving while impaired mitigating factor.
• Impairment that is solely caused by a lawfully prescribed medical drug that is taken in the properly prescribed dosage is also a mitigating factor.  This means that one must only be taking the lawfully prescribed drug in the exact prescribed dosage and in the manner prescribed. 
• Obtaining a substance abuse assessment voluntarily is another mitigating factor.  When one voluntarily goes and gets an assessment, that will count as a mitigating factor should be person be found guilty at trial.  This is why most attorneys usually recommend that a defendant obtain a substance abuse assessment as soon as possible depending on the factors surrounding the case.
• Any other factor that is mitigating is another mitigating factor. Like the aggravating factors, this is the catchall mitigating factor.  Usually, most judges will find that if the defendant was polite and cooperative, there is another mitigating factor.  Other examples would include situations like the defendant taking his sick father to the hospital and such. 

After seeing how many grossly aggravating, aggravating, and mitigating factors one has, one can determine the likely level of DWI he or she would be facing if convicted of the driving while impaired offense.

Each penalty level for Driving While Impaired is accompanied by certain sentencing guidelines.  They include:

Level One DWI (2 or More Grossly Aggravating Factors): A Level 1 DWI is the most severely punished misdemeanor in the State of North Carolina.  The maximum punishment this DWI includes two years of active prison time served in the North Carolina Department of Corrections and a $4000 fine.  In addition, the mandatory minimum includes 30 days of active time in the county jail.  The thirty days may not be suspended in lieu of probation.  What often occurs is that the District Court Judge will sentence a Level 1 DWI offender to 2 years of imprisonment, suspend the two year sentence and require 30 days of active time be served while on probation.  In addition, the Judge is required to force the Level 1 DWI offender to obtain a substance abuse assessment and proceed with substance abuse treatment for the DWI offense. 


Level Two DWI (1 Grossly Aggravating Factor): A Level 2 DWI is the second most severely punished misdemeanor driving while impaired offense.  The maximum punishment for this impaired driving offense includes one entire year in the North Carolina State Prison or local county jail and a $2000 fine.  The mandatory minimum sentence is 7 days in the county jail.  If the Judge gives the offender a suspended sentence,  7 days of active jail time must still be served as a special condition of probation.  When the offender receives a probationary sentence with the 7 days of active jail time as a condition, the Judge must also order the offender obtain a substance abuse assessment and comply with all recommended treatment for this Driving While Impaired offense.


Level Three DWI (0 Grossly Aggravating Factors – Aggravating Factors Outweigh Mitigating Factors):  Level 3 DWI punishment is used when there are no grossly aggravating factors, but the aggravating factors outweigh the mitigating factors.  The maximum punishment for this DWI that can be imposed includes a $1000 fine and 6 months of active incarceration in the county jail, and in some circumstances, the North Carolina Department of Corrections.  A probationary sentence is available.  When the offender is put on probation, the judge must impose either 72 hours of active time in jail or 72 hours of community service with a community service fee.  Many judges allow the defendant to choose which option he or she prefers.  For a suspended Level 3 DWI sentence, the judge must order that the offender obtain a substance abuse assessment and comply with all recommended treatment.


Level Four DWI (0 Grossly Aggravating Factors – Aggravating Factors Balance Mitigating Factors): Level 4 DWI punishment occurs when the mitigating and aggravating factors substantially balance each other out.  The number of mitigating and aggravating factors do not have to be exactly the same, but just have to counteract each other enough to balance out in the judge’s discretionary opinion.  The maximum punishment for a Level 4 DWI is 120 days of active time in jail and a $500 fine.  If the jail sentence is suspended, the judge must impose either 48 hours in jail or 48 hours of community service as a special condition of probation.  The judge usually allows the offender to choose.  If the community service is chosen, the defendant must be given 60 days to complete the community service requirement for this DWI sentence.


Level Five DWI (0 Grossly Aggravating Factors – Mitigating Factors Outweigh Aggravating Factors): Level 5 DWI is the lowest level Driving While Impaired charge available.  The maximum active sentence is 60 days of imprisonment and a $200 fine.  The minimum sentence is one day in jail.  The sentence is almost always suspended, and the offender is put on probation.  Obtaining a substance abuse assessment and complying with all recommended treatment will be a condition of the probation.  If put on probation, the offender must either do 24 hours of community service and pay a community service fee or spend 24 hours in jail.


If Convicted of a Driving While Impaired offense, one may be eligible for a Limited Driving Privilege under certain circumstances.  Limited Driving Privileges are not available to Level 1 and Level 2 DWI’s (Driving While Impaired Offenses).

In addition to the penalties imposed by the courts, those convicted of drunk driving will face insurance premiums that will increase dramatically. A conviction for DWI / DUI will cause you to receive twelve (12) insurance points. Twelve (12) insurance points will cause the driver’s insurance rates to increase three hundred sixty percent (360%) for a three (3) year period. See the North Carolina Department of Insurance webpage.


In addition to the DWI/DUI penalties listed above, all convictions for DWI/DUI require a minimum revocation/suspension of your drivers’ license for a period of one (1) year. Under certain circumstances, those convicted of drunk driving can obtain a limited driving privilege (LDP). At Everett Law Firm, P.A., we can assist you in determining what level DWI you are for sentencing purposes as well as whether you are eligible to receive a limited driving privilege.  


If at the time of your arrest, you registered a blood alcohol concentration (BAC) of 0.15 or greater, you will be required to place an ignition interlock device on your vehicle as part of any driving privilege that you might receive.  You will only be permitted to legally drive a vehicle with the ignition interlock; otherwise, you may be charged with Driving While License Revoked (DWLR).

Contact Everett Law Firm, P.A. today to set up a free initial consultation about your DWI / DUI charges.  We can be reached by e-mail or call us at (877) NC-DRUNK or (877) 623-7865 today. Se habla Español.