North Carolina DWI law says the judge must look at different factors before determining a sentence.  The law says, in part, “The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.”  We will prepare to present the mitigating factors in your case to help reduce the sentence that you could face in your DWI case.

There are three types of factors in DWI cases: grossly aggravating, aggravating, and mitigating factors.  These factors determine your sentencing level.  Let’s look at each type of factor one by one:

Grossly Aggravating Factors in DWI Cases

The law says that, “At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case.”  This is the first step of determining the sentencing level. The simplified list of grossly aggravating factors for DWI are:

  • A prior conviction for impaired driving in the past 7 years.
  • A prior conviction for impaired driving since the date of the offense for which the defendant is being punished.
  • Revoked license because of an impaired driving offense.
  • Serious injury to another person.
  • A child under 18, a person with a mental age of 18, or a disabled person was in the vehicle.

The last factor listed means that a person will get a Level 1 at the least.

Note that each prior conviction for DWI counts as a separate factor.  The presence of three or more grossly aggravating factors results in an Aggravated Level One sentence.  The judge must apply Level One punishment if he or she finds that only the last grossly aggravating factor in the bulleted list above applies, or any two of the other grossly aggravating factors apply.  The presence of one grossly aggravating factor will result in

Aggravating Factors in DWI Cases

There are several aggravating factors in DWI cases:

  • Gross impairment of the defendant, or a blood alcohol concentration of greater than .15
  • Especially reckless or dangerous driving.
  • Negligent driving that led to a reportable accident.
  • Revoked drivers license.
  • A conviction for driving while in impaired greater than 7 years in the past, or two convictions of traffic offenses that are punished by three or more drivers license points in the past five years.
  • Conviction for speeding while fleeing or attempting to elude arrest.
  • Conviction of the defendant for speeding in excess of 30 miles over the legal limit.
  • Passing a stopped school bus.
  • Or any other action which aggravates the seriousness of the offense.

To understand how aggravating and mitigating factors affect sentencing, see the section called “Weighing Aggravating and Mitigating Factors,” which is below.

Mitigating Factors in DWI Cases

These are mitigating factors in DWI cases.

  • Slight impairment of the defendant, solely from alcohol, and a blood alcohol content of .09 or lower.
  • Slight impairment of the defendant, solely from alcohol, and no chemical analysis made available to the defendant.
  • Safe driving at the time of the offense.
  • A safe driving record.
  • A legally prescribed drug caused the impairment.
  • The defendant’s voluntary submission to a substance abuse assessment, and if recommended, the suggested education or treatment.
  • The defendant’s submission to a substance abuse assessment, compliance with its recommendations, while at the same time maintaining an alcohol free lifestyle as verified by a continuous alcohol monitoring system.
  • Any other factor that mitigates the seriousness of the offense.

Weighing Factors in DWI Cases

The law says, “If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors…  If the judge determines that:
(1) The aggravating factors substantially outweigh any mitigating factors, the judge shall [sentence at Level 3]
(2) There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall [sentence at Level 4.
(3) The mitigating factors substantially outweigh any aggravating factors, the judge shall [sentence at Level 5].

How It Actually Works

If there are no grossly aggravating factors, the judge weighs the aggravating and mitigating factors.  First, if the judge determines the aggravating factors substantially outweigh the mitigating factors, then the defendant is sentenced to Level Three punishment.  Next, when the judge determines that the aggravating factors are substantially counterbalanced by mitigating factors, or that there are no aggravating factors and no mitigating factors, the person is sentenced to Level Four Punishment.  Finally, if the judge determines that the mitigating factors substantially outweigh aggravating factors, then the defendant is sentenced to Level Five.