Levels of DWI-DUI Conviction in North Carolina

If you are convicted of a DWI also known as a DUI in Charlotte and throughout North Carolina there are five levels that may apply to you for your sentencing.

Level I and II drivers are comprised of repeat offenders, persons whose license has been revoked, impaired drivers who are transporting minor children and impaired drivers who have injured someone in a crash during a DWI or a DUI in another state. An impaired driver must complete a substance abuse assessment and comply with recommendations for treatment as a condition to having their drivers license restored after the revocation period.

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.

How the level is chosen

North Carolina does not sentence impaired driving on the Structured Sentencing grid. It uses a separate scheme under G.S. 20-179, and the level is determined at a sentencing hearing after conviction, by weighing three categories of factor.

The court must “first determine whether there are any grossly aggravating factors.” Those decide the level almost on their own. Only if none is present does the court move on to weigh aggravating factors against mitigating ones.

The six levels

Every level permits the sentence to be suspended, but the suspension comes with a mandatory minimum that must actually be served in some form. At the lower levels that minimum can often be satisfied through community service rather than jail; at Levels One and Two it cannot.

Aggravated Level One — 12 to 36 months, fine up to $10,000
Level One — 30 days to 24 months, fine up to $4,000
Level Two — 7 days to 12 months, fine up to $2,000
Level Three — 72 hours to 6 months, fine up to $1,000
Level Four — 48 hours to 120 days, fine up to $500
Level Five — 24 hours to 60 days, fine up to $200

Grossly aggravating factors

These are the factors that drive a case into the serious levels, and they are largely mechanical — either the fact exists or it does not.

Three or more grossly aggravating factors, or the presence of a child in the vehicle together with a prior conviction, moves a case to Aggravated Level One. Two produce Level One. One produces Level Two.

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

Aggravating and mitigating factors

Where no grossly aggravating factor is present, the court weighs aggravating factors — a blood alcohol concentration of 0.15 or more, especially reckless driving, negligent driving causing an accident, driving while license revoked, prior convictions outside the seven-year window, speeding to elude — against mitigating factors.

Mitigating factors include a low level of impairment, a safe driving record, driving that was otherwise lawful, impairment caused by a lawfully prescribed drug taken within the prescribed dosage, and voluntary submission to a substance abuse assessment and completion of any recommended treatment.

The burdens differ. “The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists.” The defendant must “prove by a preponderance of the evidence that a mitigating factor exists.”

Why the assessment matters before sentencing

Voluntary submission to a substance abuse assessment and completion of the recommended education or treatment is a recognized mitigating factor. Doing it before the sentencing hearing, rather than after, is one of the few things a defendant can actively do to change the outcome.

It also has to be done anyway before a license can be restored, so completing it early costs nothing in the long run and can move a case a full level.

What the level does to your license

The criminal sentence is only half of it. A conviction for impaired driving carries a revocation of at least one year, with longer and in some cases permanent revocation for repeat offenses, and the revocation is administered by the Division separately from the sentence.

Restoration typically requires the assessment and any recommended treatment to be complete, proof of financial responsibility, payment of a restoration fee, and — where the alcohol concentration was 0.15 or more, or on repeat offenses — an ignition interlock device.

Who finds the factors, and what an appeal changes

In district court the judge conducts the sentencing hearing and finds the factors. On appeal to superior court for a trial de novo the position changes. Where the State intends to use aggravating factors, G.S. 20-179 requires it to provide the defendant with notice of its intent, and that notice shall be provided no later than 10 days prior to trial. If the defendant does not admit a factor, only a jury may determine that an aggravating factor is present. Whether a prior conviction exists is a matter for the judge rather than the jury.

An appeal also does not preserve the district court sentence. Under G.S. 20-38.7, where an appeal is withdrawn or the case is remanded, that sentence is vacated and the district court shall hold a new sentencing hearing, unless the prosecutor certifies in writing that there are no new sentencing factors to offer.

Limits on softening the sentence

Once the level is fixed, G.S. 20-179 closes routes that would otherwise reduce it. The defendant shall serve the mandatory minimum period of imprisonment, and good or gain time credit may not be used to reduce that mandatory minimum period. The judge may not give credit for the first 24 hours spent in custody pending trial. Parole is not available until the mandatory minimum has been served and the substance abuse assessment and any recommended treatment are complete.

When the levels stop applying

The six levels govern misdemeanor impaired driving. Where a person drives while impaired and has three or more prior convictions for offenses involving impaired driving within 10 years of the date of the offense, G.S. 20-138.5 makes the charge habitual impaired driving, a Class F felony. It carries a minimum active term of not less than 12 months of imprisonment, which shall not be suspended, and a person convicted under it shall have his license permanently revoked.

Common questions

Does the punishment level affect a limited driving privilege?

Yes. Under G.S. 20-179.3, eligibility after an impaired driving conviction requires that Level Three, Four or Five punishment was imposed. The person must also have held a valid license, or one expired for less than a year, at the time of the offense, must not have been convicted of an offense involving impaired driving in the preceding seven years, must file a substance abuse assessment with the court, and must show proof of financial responsibility.

Can two impaired driving charges be sentenced together?

No. G.S. 20-179 provides that two or more impaired driving charges may not be consolidated for judgment, so each is sentenced separately at its own level. Timing also matters: under the same section a conviction that occurs after the date of the offense being sentenced, but before or contemporaneously with that sentencing, still counts, and each prior conviction is a separate grossly aggravating factor.

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