DWI Sentencing Factors?

When an individual has been convicted of a NC DWI, a sentencing hearing will then be held for the determination of grossly aggravating factors. The following is a list of factors that a judge may consider in Sentencing for a DWI-DUI.

From these aggravating and mitigating factors, the judge will determine the appropriate sentence. Due to the numerous extent of factors to consider, it is imperative that an individual contacts a Charlotte DUI Lawyer to guarantee proper representation during a sentencing hearing. Sheehan and a Charlotte North Carolina DWI Lawyer will speak to you the same day.

Three categories, weighed in order

G.S. 20-179 sorts the facts of a case into grossly aggravating factors, aggravating factors and mitigating factors, and it requires them to be considered in that order. The court “shall first determine whether there are any grossly aggravating factors.”

If any exists, the level is set by counting them and the aggravating and mitigating factors never come into play. That is why so much of the work in a DWI case is directed at the grossly aggravating factors specifically.

Grossly aggravating factors, and how they are proved

Each of these is capable of being contested. Whether a prior conviction falls within seven years is a question of dates that is sometimes got wrong. Whether a revocation was an impaired driving revocation, rather than an ordinary one, is a question about the Division’s records. Whether an injury is a “serious injury” is a question of degree, and it is litigated.

A prior conviction for an offense involving impaired driving within seven years of the current offense
Driving at the time on a license revoked for an impaired driving revocation
Causing serious injury to another person through the impaired driving
A child under 18, or a person with a mental or physical disability, in the vehicle

Aggravating factors

An alcohol concentration of 0.15 or more
Especially reckless or dangerous driving
Negligent driving that led to a reportable accident
Driving while the license was revoked, other than for an impaired revocation
Two or more prior convictions of a motor vehicle offense carrying at least three points, within five years
Convictions of speeding while fleeing to elude arrest, or speeding by at least 30 mph over the limit
Passing a stopped school bus

Mitigating factors

Slight impairment, with an alcohol concentration of no more than 0.09
Slight impairment with no chemical analysis available
Driving that was otherwise safe and lawful
A safe driving record, with no convictions carrying at least four points within five years
Impairment caused by a lawfully prescribed drug taken within the prescribed dosage
Voluntary submission to a mental health facility for assessment after being charged, and completion of any recommended treatment
Completion of a substance abuse assessment and compliance with its recommendations

The burdens are not the same

The distinction matters in practice. The State must prove an aggravating factor beyond a reasonable doubt — the same standard as the offense itself. The defendant need only prove a mitigating factor by a preponderance of the evidence.

That asymmetry is why mitigation is the more productive place to spend effort in most cases. Establishing three or four mitigating factors is achievable with documents; defeating an aggravating factor often requires litigating a contested fact.

Building mitigation before the hearing

Almost every mitigating factor is something that can be created rather than merely discovered. A substance abuse assessment can be obtained and the recommended program completed. A driving record can be produced. Treatment can be started voluntarily.

The cases that sentence well are the ones where this work was done before the hearing rather than promised at it. A judge weighing factors responds to a completed certificate very differently from an intention.

What the count actually produces

Counting is decisive, and G.S. 20-179(c) fixes the result. The judge must impose Aggravated Level One punishment where three or more grossly aggravating factors apply; Level One where the child or disabled-passenger factor applies, or where two of the other factors apply; and, where that factor is not found, Level Two where only one of the others applies. Each prior conviction is a separate grossly aggravating factor in its own right, so two qualifying priors reach Level One without anything else.

Only where none applies does weighing begin. Under G.S. 20-179(f) the result is Level Three if the aggravating factors substantially outweigh the mitigating, Level Four if there are no factors or they are substantially counterbalanced, and Level Five if the mitigating substantially outweigh the aggravating.

Convictions that count although they came later

The seven-year window is only one branch of G.S. 20-179(c)(1). A conviction for an offense involving impaired driving also counts if it occurs after the date of the offense being sentenced, provided it comes before or at the same time as that sentencing. A third branch covers a district court conviction that was appealed to superior court where the appeal was withdrawn or the case remanded, and no new sentencing hearing has been held under G.S. 20-38.7.

A charge still pending elsewhere can therefore change the level of a case that has not yet been sentenced, which makes the order in which separate matters are resolved a real consideration.

Notice, and who finds the facts, on appeal

Where a district court conviction is appealed to superior court for trial de novo and the State intends to use factors under subsection (c) or (d), G.S. 20-179(a1)(1) requires the State to give the defendant notice of that intent, listing the factors, no later than 10 days before trial. Factors for which notice was not given may not be used at sentencing, and the Court of Appeals has applied that even to factors the district court had already found.

G.S. 20-179(a1)(2) allows the defendant to admit a factor, which is then treated as though a jury had found it. Without an admission, only a jury may find an aggravating factor in superior court. The exception is the existence of a prior conviction, which the statute leaves to the judge.

Common questions

Can a 0.15 reading be argued down at the sentencing hearing?

No. G.S. 20-179(d)(1) provides that the results of a chemical analysis presented at trial or sentencing are sufficient to prove alcohol concentration, are conclusive, and are not subject to modification by any party, with or without the court's approval. The reading is contested, if at all, through the admissibility of the analysis itself, not by agreement once it is in evidence.

Can the court find a factor that is not on the statutory list?

Yes. G.S. 20-179(d)(9) allows any other factor that aggravates the seriousness of the offense, and G.S. 20-179(e)(7) allows any other factor that mitigates it. There is a limit: except for the prior-convictions factor, the conduct making up an aggravating factor must occur during the same transaction or occurrence as the impaired driving offense.

Is a substance abuse assessment required even at the lowest levels?

Where the defendant is placed on probation, G.S. 20-179 requires the judge to impose, as a condition of probation, a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6 for restoration of a driver's license. That requirement attaches to probationary sentences generally rather than only to the higher punishment levels.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.