Attorneys at our Firm
You cannot reason with the unreasonable,
When it is time to fight, WE FIGHT TO WIN.

Sentencing for Driving While Impaired

Driving while impaired in North Carolina is treated on its own separate sentencing scale within the criminal justice system.

Driving while impaired is a misdemeanor in North Carolina. At sentencing the court can consider proof of any mitigating factors the defense argues, or any aggravating or grossly aggravating factors the prosecution alleges. This could be decided by the judge, or in some circumstances, a jury. Sentencing can be decided as a separate hearing after trial or included at the end of trial. Either way, evidence introduced at trial can be considered at sentencing.

Any one of the following can affect the level at which a person is charged, convicted, and sentenced for driving while impaired:

  • If mitigating factors outweigh the aggravating factors

  • If aggravating factors outweigh the mitigating factors

  • If grossly aggravating factors exist

If you have been charged with a DWI it is crucial to have a good criminal defense attorney experienced with defending against DWI charges.

Mitigating factors can help decrease a person’s sentence and are something argued by the defense. In a DWI sentencing hearing, the court will consider the following factors:

  1. If the defendant was slightly impaired, solely from alcohol, and their blood alcohol concentration did not exceed .09

  2. If the defendant was slightly impaired, solely from alcohol, and no chemical test was available

  3. If the defendant’s driving at the time of the offense was otherwise safe and lawful, besides the impaired driving

  4. A safe driving record with no conviction for a motor vehicle offense:

    1. Which put more than four points on the defendant’s license or

    2. Made their license subject to revocation within the last five years

  5. If the impairment was caused primarily by the defendant’s legally prescribed drug, and the amount of the drug they took was within the prescribed dosage

  6. If the defendant voluntarily submitted themselves to a mental health facility for assessment after being charged with the current impaired driving offense, and their voluntary participation in the facility’s recommended treatment, if any

  7. If the defendant completes a substance abuse assessment, complies with its recommendations, and simultaneously abstains from alcohol. An approved continual alcohol monitoring device will be used to prove sobriety.

  8. Any other factor that tends to mitigate the offense’s seriousness

Factors that will NOT be considered mitigating by the court for determining sentencing level include that the driver was suffering from drug addiction, alcoholism, diminished capacity, or mental disease or defect.

The court also considers any aggravating or grossly aggravating factors in a driving while impaired case. Aggravating factors are circumstances that tend to increase the seriousness of an offense and include:

  1. Alcohol concentration of 0.15 or more. Chemical analysis showing this level of intoxication is presumptively conclusive in court, i.e. it is enough evidence to convict.

  2. Especially dangerous or reckless driving. Reckless behavior is that where the person knew or should have known their conduct was dangerous and acted anyway.

  3. Negligent driving that led to an accident that was or could have been reported

  4. The defendant driving while on a revoked license

  5. Two or more previous convictions for a motor vehicle offense within the last five years that did not involve impaired driving but did: i) put at least 3 points on the person’s license, ii)make the person’s license subject to revocation

  6. One or more previous convictions for an offense involving impaired driving that was more than seven years before the date of the current offense (less than seven years is grossly aggravating)

  7. The defendant is convicted in this case of speeding while fleeing or attempting to flee law enforcement

  8. The defendant is convicted in this case of speeding at least 30 miles per hour above the legal limit

  9. The defendant is convicted in this case of passing a stopped school bus

Meanwhile, grossly aggravating factors are the most serious aggravating factors for a driving while impaired case. These include:

  1. A previous conviction for an offense that involves impaired driving if the other conviction occurred within seven years of the date of the current charged offense

    1. Each prior conviction counts as a separate grossly aggravating factor

  2. An intervening DWI conviction

  3. If for the current offense the defendant was driving with a revoked license that was revoked because of previous impaired driving

  4. If another person was seriously injured by the defendant’s driving for the current offense

  5. If one of the following was in the vehicle with the defendant at the time of the current offense:

    1. A minor under 18 years old

    2. A person with under-18 mental development

    3. A person with a physical disability that prevented them from exiting the vehicle without help

Level of punishment Table

Your defense attorney may be able to negotiate community service for jail time for Levels Five through Three. Higher-level DWIs may be able to negotiate out of jail time if the defendant agrees to certain probationary measures. If you are charged with any Level of a driving while impaired in North Carolina it is extremely important to have skilled legal representation. The defense attorneys of Arnold & Smith, PLLC fight for the rights of individuals accused of DWI almost every single day in Charlotte, Mecklenburg, Cabarrus, Union, Iredell, Gaston and the surrounding counties. Contact us today for a free consultation about your case.