North Carolina DWI Sentencing Guide

North Carolina law provides for a wide range of potential sentences/penatlies for an individual that is convicted of a Driving While Impaired (DWI). On the low end of the spectrum a person would generally receive a sentence that includes a fine up to $200.00 plus court cost, likely probation, which will include the defendant obtaining a substance abuse assessment and the recommended treatment, and 24 hours of community service in order for the defendant to have his driver’s license restored. The suspension of the individual driver’s license would be for a year but the person could obtain a limited driving privilege for work, school, and substance abuse treatment during that time period. Additonally, there could be more penalties from the DMV for a DWI conviction, depending upon your driving record.

Under North Carolina law, if you have been convicted of a DWI, the level of punishment that you will fact is based upon the existence and balancing of grossly aggravating factors, aggravating factors, or mitigating factors.

DWI Sentencing Factors

Grossly Aggravating Factors

The four factors below are the factors that have been determined to be classified as “grossly aggravating”:

(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

PLEASE NOTE: Each prior conviction is a separate grossly aggravating factor.

(2) Driving by the defendant at the time of the offense while his driver's license was revoked pursuant to G.S. 20-28(a1).

(3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.

(4) Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

Aggravating Factors

There are eight specific factors that are listed below in addtion to the catch-all, and these are classified as “aggravating”:

(1) 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. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

(2) Especially reckless or dangerous driving.

(3) Negligent driving that led to a reportable accident.

(4) Driving by the defendant while his driver's license was revoked.

(5) 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 seven years before the date of the offense for which the defendant is being sentenced.

(6) Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.

(7) Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.

(8) Passing a stopped school bus in violation of G.S. 20-217.

(9) Any other factor that aggravates the seriousness of the offense.

PLEASE NOTE: Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.

Mitigating Factors

There are seven specific factors that are listed below in addtion to the catch-all, and these are classified as “mitigating”:

(1) Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.

(2) Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.

(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties.

(4) A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20-16 or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.

(5) 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.

(6) The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.

(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.

(7) Any other factor that mitigates the seriousness of the offense.

PLEASE NOTE: Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.

DWI Sentencing, if convicted of a DWI, consists of six levels in NC. These levels from the less severe to the most severe sentencing level are: Aggravated Level One, Level One, Level Two, Level Three, Level Four, Level Five. The Sentencing for a DWI can be found in the North Carolina General Statutes (N.C.G.S.) § 20-179.

DWI PUNISHMENT LEVELS

Aggravated Level One DWI Punishment: N.C.G.S. § 20-179(f3)

o Imposed if there are three (3) or more grossly aggravating factors present
o Fine: Up to $10,000
o Jail: Minimum of not less than 12 monhs and a Maximum of not more than 36 months – with no eligibility for parole
o However: The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days.
o If the defendant is placed on probation, the judge shall impose as requirements that the defendant
♣ abstain from alcohol consumption for a minimum of 120 days, and
♣ obtain a substance abuse assessment and the education or treatment.

Level One DWI Punishment: N.C.G.S. § 20-179(g)

o Imposed if:
o The Defendant was accompanied by:
♣ A child under the age of 18 years, or
♣ A person with the mental development of a child under the age of 18 years, or
♣ A person with a physical disability preventing unaided ecit from the vehicle at the time of the offense, or
o Any two of the other grossly aggravating factors are present.
o Fine: Up to $4,000
o Jail: Minimum of not less than 30 days and a Maximum of not more than 24 months
o However: The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days
♣ A judge may reduce the minimum term of imprisonment required to a term of not less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, for a period of not less than 120 days
o If the defendant is placed on probation, the jusdge shall impose as requirements that the defendant:
♣ Obtain a substance abuse assessment and the education or treatment, and
♣ Abstain from alcohol consumption for minimum period of 30 days up to the maximum of the term of probation.

Level Two DWI Punishment: N.C.G.S. § 20-179(h)

o Imposed if:
o No minor child (under 18) was present in the vehicle, and
o Only one other grossly aggravating factor is present
o Fine: up to $2,000
o Jail: Minimum of not less than 7 days and a Maximum of not more than 12 months
o However: The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 7 days, or
o The defendant abstains from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety
o Except: If the defendant is subject to Level Two punishment based on a prior DWI conviction or driving or a driver’s license revoked as a result to a prior DWI, AND the conviction for a prior offense involving impaired driving occurred within five years before the date of the offense for which the defendant is being sentenced and the judge suspends all active terms of imprisonment and imposes abstention from alcohol as verified by a continuous alcohol monitory system, then the judge must also impose as an additional condition of special probation that the defendant must complete 240 hours of community service.
o If the defendant is placed on probation, the jusdge shall impose as requirements that the defendant:
♣ Obtain a substance abuse assessment and the education or treatment, and
♣ Abstain from alcohol consumption for minimum period of 30 days up to the maximum of the term of probation.

Level Three DWI Punishment: N.C.G.S. § 20-179(i)

o Imposed If:
o No Grossly Aggravating factors are present, and
o Aggravating Factors substantially outweigh any mitigating factors
o Fine: Up to $1.000
o Jail: Minimum of not less than 72 hours and a Maximum of not more than 6 months
o However: The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 72 Hours, or community service for at least 72 hours, or any combination of the two previosly mentioned items.
o If the defendant is placed on probation, the judge shall impose as requirements that the defendant:
♣ Obtain a substance abuse assessment and the education or treatment, and
♣ Any additonally lawful conditions of the probation the judge should choose to impose.

Level Four DWI Punishment: N.C.G.S. § 20-179(j)

o Imposed If:
o No aggravting or mitigating factors are present, or
o Aggravating factos are substantially counterbalanced by any mitigating factors
o Fine: Up to $500
o Jail: Minimum of not less than 48 hours and a Maximum of not more than 120 days
o However: The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 48 Hours, or community service for at least 48 Hours, or any combination of the two previosly mentioned items.
o If the defendant is placed on probation, the judge shall impose as requirements that the defendant:
♣ Obtain a substance abuse assessment and the education or treatment, and
♣ Any additonally lawful conditions of the probation the judge should choose to impose.

Level Five DWI Punishment: N.C.G.S. § 20-179(k)

o Imposed If:
o Mitigating Factors substantially outweigh any aggravating factors
o Fine: Up to $200
o Jail: Minimum of not less than 24 hours and a Maximum of not more than 120 days
o However: The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 24 Hours, or community service for at least 24 Hours, or any combination of the two previosly mentioned items.
o If the defendant is placed on probation, the judge shall impose as requirements that the defendant:
♣ Obtain a substance abuse assessment and the education or treatment, and
♣ Any additonally lawful conditions of the probation the judge should choose to impose.

Arrested for driving while under the influence? Hall & Dixon PLLC can help. Our attorneys know the ins and outs of North Carolina’s DWI laws. We’ll examine the details of your case carefully and make sure all proper procedure was followed during your arrest. If we find any evidence that can be used in support of your defense, we’ll make note of it and present it in court.

You can rely on us to negotiate with the judge on your behalf and do everything possible to reduce the effects of a conviction. Schedule a consultation for your DWI charge by calling 704-993-6825.


Get in touch with Hall & Dixon to learn more.