Understanding North Carolina DWI Levels

NC DWI Levels

According to the National Highway Traffic Safety Administration (NHTSA), every day in the United States about 32 people die in vehicle crashes involving alcohol, which equates to one person every 45 minutes. In 2020 11,654 people died in alcohol-impaired traffic deaths–an increase of 14% from 2019. 

North Carolina has some of the strictest drinking and driving laws that historically have been adopted in the U.S. If you are drunk and get behind the wheel in North Carolina, you will suffer severe consequences if caught. Driving While Impaired (DWI) is a serious offense. Here at Sandman, Finn, & Fitzhugh, we have a depth of experience in defending DWI cases. In this article, we discuss the different levels of driving under the influence of alcohol as well as aggravating and mitigating factors.

Six Levels of DWI Convictions

North Carolina’s DWI sentencing structure involves a series of levels that denote the degree of the crime. There are six levels of misdemeanor punishments for driving while intoxicated convictions–1A, 1, 2, 3, 4, and 5. Within these six levels, there are two distinct categories. The most serious category contains levels 1A, 1, and 2; the less serious category contains levels 3, 4, and 5. Aggravating and grossly aggravating factors impact you negatively at sentencing. The more aggravating factors in your case result in a more serious level of sentencing from the judge.

The Factors Affecting DWI Levels in North Carolina

In your DWI trial, the prosecution presents any aggravating and grossly aggravating factors that are against you in court. Then, your attorney will present any mitigating circumstances in your defense. The level of your sentence depends on the number of each of the factors and whether the mitigating factors outweigh the aggravating and grossly aggravating factors. Repeat offenders face the possibility of additional and stricter punishment under North Carolina DWI law.

Grossly Aggravating Factors

Grossly aggravating factors are those circumstances that are especially dire. As defined in the N.C. General Statutes, if three or more of these factors are present in your case, you may be facing Aggravated Level 1 (or Level 1A) sentencing, which is the strictest under North Carolina law. Two grossly aggravating factors could result in a Level 1 sentence.

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:

• 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.
• Driving happened while the defendant’s driver’s license was revoked for an alcohol related offense (prior DWI).
• Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
• 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.

Without any other factors being present, one grossly aggravating factor means your DWI is a Level 2. If you have two factors, the DWI is a Level 1. If there are three or more factors, the DWI is a Level 1A, the most severe.

Aggravating Factors in a DWI Case

If there are no grossly aggravating factors, the DWI would be a level 3, 4, or 5. Your sentencing for a DWI is also impacted if the judge or jury decides that there are aggravating factors in your case. Aggravating factors are weighed against mitigating factors in determining the level of conviction. 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.

Aggravating factors include reckless driving or speeding at 30 miles per hour or more above the speed limit or speeding to avoid or escape the police. Prior convictions can also be considered aggravating factors. Specifically, these are considered aggravating factors:

• Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more.
• Especially reckless or dangerous driving.
• Negligent driving that led to a reportable accident.
• Driving by the defendant on a suspended or revoked license.
• 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.
• Conviction of speeding by the defendant while fleeing or attempting to elude apprehension.
• Conviction of speeding by the defendant by at least 30 miles per hour over the legal limit.
• Passing a stopped school bus.
• 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

Although each DWI case is unique, the judge uses a type of formula to determine your sentence when you are convicted of a DWI or if you plead guilty to the charge. When you have more mitigating factors than aggravating ones, you will receive a level 5 conviction. This is the most lenient of the six levels of punishment. If you have the same number of mitigating and aggravating factors, you receive a level 4 punishment. If the aggravating factors outweigh the mitigating factors, a level 3 sentence is charged. If you have no mitigating factors and/or have grossly aggravating factors, you receive the harshest punishment categorized as either level 2, 1, or 1A.

Here are possible mitigating factors:

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 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 is considered a mitigating factor. 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. It is imperative that you have legal representation to handle your defense. The experienced, dedicated attorneys at Sandman, Finn, & Fitzhugh will be by your side as 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 Franklin County please reach out to us today for a free consultation at (919) 845-6688 or fill out our contact form to get started.