Understanding North Carolina DWI Levels

In North Carolina there are six different levels of misdemeanor punishments for driving while impaired (DWI) convictions. They are level 1A, 1, 2, 3, 4, and 5. Within the six levels, there two distinct categories. The first, and most serious category contains level 1A, 1, and 2 and the less serious category contains levels 3, 4, and 5.

The Factors Affecting DWI Levels in North Carolina

Grossly Aggravating Factors


To determine what level, and therefore what category the DWI is, we first look to see if one or more grossly aggravating factors are present. There are four possible grossly aggravating factors that can be associated with a DWI:

  1. A prior conviction for a DWI if the conviction occurred within seven years of the date of arrest for the present DWI. If there are multiple prior convictions, each prior conviction is a separate grossly aggravating factor.
  2. Driving happened while the defendant’s driver’s license was revoked for an alcohol related offense (prior DWI).
  3. Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
  4. The defendant committed the DWI while he had in his car; (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.
  5. The N.C. General Statute can consider this grossly aggravating factor as two.

Without any other factors being present:

  • One grossly aggravating factor means your DWI is a level 2.
  • Two factors, the DWI is a level 1.
  • Three or more factors, the DWI is a level 1A, the most severe.

Aggravating & Mitigating Factors in a DWI Case

If there are no grossly aggravating factors, the DWI would be a level 3, 4, or 5. To determine which level it is, we now look for aggravation factors and balance them against any mitigating factors. If the aggravating factors outweigh the mitigating factors the DWI is a level 3. If the mitigating factors outweigh the aggravating factors, the DWI is a level 5 and if factors counterbalance each other the DWI is a level 4.

The aggravating factors are:

  1. Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more.
  2. Especially reckless or dangerous driving.
  3. Negligent driving that led to a reportable accident.
  4. Driving by the defendant on a suspended or revoked license.
  5. Two or more prior convictions of a traffic violation not involving impaired driving for which at least three points are assigned under G.S. 20-16. Also, convictions of a motor vehicle offense 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 of speeding by the defendant while fleeing or attempting to elude apprehension.
  7. Conviction of speeding by the defendant by at least 30 miles per hour over the legal limit.
  8. Passing a stopped school bus.
  9. Any other factor that aggravates the seriousness of the offense.

Except for factor 5, the other factors must have occurred during the DWI.

Mitigating factors in a DWI case include :

  1. Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09.
  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 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 being charged with the impaired driving offense for which the defendant is being sentenced, and, if recommended by the facility, 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 and Juvenile Justice of the Department of Public Safety.
  7. Any other factor that mitigates the seriousness of the offense.

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

Contact Our DWI Attorneys in Raleigh Today

Being charged with Driving While Impaired in North Carolina is serious, DWI penalties in Wake County and the surrounding area are severe. Having the experienced, dedicated attorneys at Sandman, Finn, & Fitzhugh by your side means you’ve got an ally who will seek out mitigating factors and fight on your behalf.

If you need a DWI attorney in Wake County, Johnston County, Durham County, or any of the surrounding area, reach out to us today for a free consultation at (919) 887-8040 of fill out our contact form to get started.