One of the more common questions that I get about DWIs is “what happens if I get convicted and sentenced to jail?” Although it is a common question it can be a tricky one to answer in some of the more serious cases. This is because the sentencing of DWIs is not covered by the Structured Sentencing Act, which addressed the sentencing of every other felony and misdemeanor and sets out a straight forward, reliable and predictable method for determining the sentence for a particular crime. Instead, DWIs are covered by their own statute, N.C.G.S. § 20-179. The Structured Sentencing Act provides a minimum and maximum sentence that must be served while N.C.G.S. § 20-179 allows for DWI defendants to be paroled and to receive one day credit for every infraction free day served in custody. Therefore, in reality, a defendant’s sentence in most DWIs is cut in half the moment they walk into jail on a straight active sentence. Once parole is added in a defendant can, on the more serious offenses, actually serve less than half their original sentence.
In a recent blog by Shea Denning of the North Carolina School of Government, she was able to lay out the statistics compiled by the Sentencing Commission from July 2014 – June 2015. During that time period nearly 60% of the DWIs that were sentenced were adjudicated as Level 5, the lowest level. Additionally 60% of all DWIs that were sentenced were placed on unsupervised probation with only 7% being given an active prison sentence. This 7% does not include the Aggravated Level 1 and the Level 1s and 2s that require the defendant to serve some amount of jail time as a split sentence. On a split sentence, the defendant must serve that time day for day and he is not eligible for parole or a reduction of that time for good behavior. If a defendant is placed on probation for an A1, a 1 or a 2, the minimum split sentences are 120, 30 and 7 days respectively.
This gets us back to the question, what happens to that 7% that are sentenced to a straight active prison term? In the covered years, the average Aggravated Level 1 DWI was sentenced to 13.6 months in jail and served 10.9, the average Level 1 DWI was sentenced to 18.2 months in jail but served only 7.5. Likewise the average Level 2 DWI received 10.3 months and served 4.7. For level 3, 4 and 5 DWIs the numbers were 5.3/2.7, 3.4/1.7 and 1.8/.09.
Looking at the numbers, one of the things that jumps out is that the average Aggravated Level 1 received less of a sentence up front that the average Level 1 (by 4 ½ months) but the individual served on average 3.4 months longer in jail. How can this be? That is due in large part to the fact that Aggravated Level 1s are not entitled to credit for good time and parole but the individual must be released four months prior to the end of their maximum sentence on post release supervision.
As you can see, the sentencing of DWIs can quickly become complicated and it takes the knowledge and experience of seasoned attorney to navigate individuals through these waters. If you have a question regarding a DWI and how our firm can help you, contact us today for a free consultation.