NC DWI Sentencing Factors

When sentencing someone convicted of DWI, the Judge will weigh three sets of factors:

Mitigating Factors, Aggravating Factors, and Grossly Aggravating Factors. The number

of each of these factors will determine at what level the Judge will sentence the

Defendant.


Regardless of what level, if you are convicted of Driving While Impaired you will be

sentenced to:

  • A mandatory minimum 1-year suspension of their driver’s license.
  • You must submit to a Substance Abuse Assessment and complete all

            recommended treatment.

  • You could possible be required to have an Interlock Device (breathalyzer

            wired to the vehicle's ignition) installed on the Defendant’s vehicle depending

  • on their blood/alcohol level.
  • Court costs, fines, and fees. 


AGGRAVATING FACTORS
These are factors that work against the Defendant’s favor. Though not as serious as Grossly Aggravating Factors, they still can result in a higher sentencing level, depending on the Mitigating Factors.

Aggravating Factors include:

  1. Two or more convictions of a driving offense for which at least 3 points were assessed within the five years preceding the DWI offense.
  2. Especially reckless or dangerous driving.
  3. Conviction of a DWI more than 7 years before the current DWI offense.
  4. Conviction of passing a stopped school bus.
  5. Conviction of speeding to elude apprehension.
  6. Conviction of speeding at least 30 miles over the legal limit.
  7. Gross impairment (.15 or more).
  8. Negligent driving leading to a reportable accident.
  9. Driving While License Revoked not related to a prior DWI.
  10. Any other factor that aggravates the seriousness of the offense.


GROSSLY AGGRAVATING FACTORS
These factors are severe strikes against the Defendant. Having Grossly Aggravating Factors will result in being sentenced at a Level 2, Level 1, or Aggravated Level 1.

Grossly Aggravating Factors include:

  1. Driving While License Revoked at the time of the DWI when the revocation was for a prior impaired driving offense.
  2. Serious injury to another caused by the Defendant’s impaired driving.
  3. Prior DWI within the 7 years preceding the current DWI offense.
  4. Having a child under the age of 18 (or having a passenger with a mental development of someone under 18, or someone with a physical disability preventing unaided exit from the vehicle) at the time of the DWI offense. This sentencing factor alone will automatically result in a Level 1 being imposed.


MITIGATING FACTORS
These are factors that work in the Defendant’s favor. The Judge can use these to reduce the sentencing level of the Defendant, so long as there are no Grossly Aggravating Factors.


Mitigating Factors include: 

  1. Statutorily safe driving record for the past five years (meaning no driving offenses that at least 4 points were assigned).
  2. Voluntary submission to a DWI-alcohol assessment and agree to participate in any recommended treatment.
  3. Slight impairment (.09 or less).
  4. Safe and lawful driving at the time of the DWI offense.
  5. Impairment by a lawfully prescribed drug(s) within the prescribed dosage.
  6. Any other factor that mitigates the seriousness of the offense.


 THE SIX LEVELS OF SENTENCING FOR DWI


  • LEVEL 5 (LEAST SEVERE)
    • ​ Applies when no grossly aggravating factors are present, and any mitigating factors substantially outweigh any aggravating factors. 
    • Sentence: Fine up to $200
    • Possible imprisonment between 1 and 60 days. 
    • If the Judge suspends the sentence, they must impose either:
      •  Imprisonment for 24 hours
      • 24 hours of community service (to be completed within a time limit set by the Judge), or
      • Any combination of these.
  • ​LEVEL 4
    • Applies when no grossly aggravating factors are present, and any mitigating factors are balanced by any aggravating factors.
    • Sentence: Fine up to $500
    • Possible imprisonment between 2 and 120 days. 
    • If the Judge suspends the sentence, they must impose either:
      • Imprisonment for 48 hours
      • 48 hours of community service (to be completed within a time limit set by the Judge), or
      • Any combination of these.
  • LEVEL 3
    • ​​Applies when no grossly aggravating factors are present, and any aggravating factors substantially outweigh any mitigating factors.
    • Sentence: Fine up to $1000
    • Possible imprisonment between 3 days and 6 months. 
    • If the Judge suspends the sentence, they must impose either:
      • Imprisonment for 72 hours
      • 72 hours of community service (to be completed within a time limit set by the Judge), or
      • Any combination of these.

  • LEVEL 2
    • Applies when only one grossly aggravating factor is present except for the grossly aggravating factor dealing with a passenger in the vehicle (regardless of any mitigating and aggravating factors).
    • Sentence: Fine up to $2,000
    • Imprisonment between 7 days and 12 months.
    • If the Judge suspends the sentence, they must impose an active sentence of imprisonment for at least 7 days.

​

  •  LEVEL 1
    • ​Applies when two grossly aggravating factors are present (regardless of any mitigating and aggravating factors).
    • Also applies to DWI offenses that occur on or after December 1, 2011 in which a child under the age of 18 is in the vehicle at the time of the offense. 
    • Sentence: Fine up to $4,000
    • Imprisonment between 30 days and 24 months. 
    • If the Judge suspends the sentence, they must impose an active sentence of imprisonment for at least 30 days.


  • AGGRAVATED LEVEL 1
    • Applies when three or more grossly aggravating factors are present (regardless of any mitigating and aggravating factors).
    • Sentence: Fine up to $10,000
    • Imprisonment between 12 months and 36 months.
    • If the Judge suspends the sentence, they must impose imprisonment of at least 120 days.


EXCEPTIONS FOR JAIL SENTENCING 


  • CAM (Continuous Alcohol Monitoring)
    • With the legislative ratification of House Bill 494 (Continuous Alcohol Monitoring Law Changes), the State of North Carolina is poised to reinforce the pre-trial and probationary provisions of CAM in order to mitigate DWI convictions.  The popular, SCRAMx device enables an attorney to advocate court-ordered abstinence in lieu of incarceration, and reassures the judge that the defendant will:
      • Refrain from drinking and be accountable for his or her actions
      • Not pose a threat to public safety
      • Earn credit for time served in North Carolina
      • Continue to work and contribute positively to the community 
      • Improve treatment outcomes and reduce recidivism​​​


Post-trial Level of Conviction  Duration of CAM MandatoryReduced Term

Aggravated Level One

(with prison term)

4 months of post-release supervision YES6 months

Aggravated Level One

(probation in lieu of prison)

Minimum 120 days to maximum term of probationYES6 months
Level OneMinimum of 30 days to maximum terms of probation Judicial Discretion10 days
Level TwoMinimum of 30 days to maximum term of probationJudicial Discretion7 days



  • Credit for Inpatient Treatment
    • The judge may order that a term of imprisonment imposed as a condition of special probation under any level of punishment be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient. The judge may credit against active sentence imposed on a defendant the time the defendant was an inpatient at the treatment facility, provided such treatment occurred after the commission of the offense for which the defendant is being sentenced.