Weighing Factors to Determine DWI Sentencing
After being convicted of misdemeanor driving while impaired (“DWI”) in North Carolina, a separate DWI sentencing hearing will be held to determine the appropriate punishment level. Sentencing is divided into six different punishment levels: Level 5 up to Aggravated Level 1. The severity is in reverse order, meaning Level 5 is the lowest possible punishment level and Aggravated Level 1 is the highest for sentencing purposes.
Where a defendant falls in the DWI punishment scheme is based on consideration of grossly aggravating factors, aggravating factors, and mitigating factors. In District Court, the judge decides whether any mitigated, aggravated, or grossly aggravating factors apply at sentencing. In Superior Court, a jury decides whether aggravated or grossly aggravating factors apply. Aggravating and grossly aggravating factors must be proven beyond a reasonable doubt by the prosecution. Mitigating factors must be proven by a preponderance of the evidence by the defense.
The punishment level will be Aggravated Level 1, Level 1, or Level 2 when any grossly aggravating factors are found. If no grossly aggravating factors are found, punishment level will be between Level 3 and Level 5, which is determined by the judge after weighing the existence of any aggravating factors against the existence of any mitigating factors.
It is important to note that balancing the aggravating factors against the mitigating factors is not merely a 1 to 1 comparison. Depending on the specific facts and circumstances of the case and the judge on the bench, a single aggravating factor can be found to outweigh three separate mitigating factors. Thus, it is equally important for the attorney to know how a judge will treat your case at sentencing as it is to know how a judge may lean with respect to any motions to dismiss.
With respect to punishment levels Aggravated 1, Level 1, and Level 2, the level is determined by the number of grossly aggravating factors, but the judge has discretion to impose increased punishment if there are aggravating factors and minimal mitigating factors. The take away from all this information is that preparing for sentencing hearings is important and cannot be overlooked when fighting other aspects of a DWI case.
DWI Punishment Levels
Aggravated Level 1 Punishment
- Fine of up to $10,000.00.
- Minimum of 120 days in custody and up to 36 months in custody.
- Abstain from alcohol for a minimum of 120 days as verified by continuous alcohol monitoring system.
- Obtain a substance abuse assessment and complete all recommended treatment.
- Surrender driver license and not drive until properly license by a state’s division of motor vehicles.
- Pay court costs.
- Any other lawful condition of probation.
Level 1 Punishment
- Fine of up to $4,000.00.
- 30 days minimum in custody and up to 24 months in custody;
- Obtain a substance abuse assessment and complete all recommended treatment.
- Surrender driver license and not drive until properly license by a state’s division of motor vehicles.
- Pay court costs.
- Any other lawful condition of probation.
Level 2 Punishment
- Fine of up to $2,000.00.
- 7 days minimum in custody and up to 12 months in custody.
- Obtain a substance abuse assessment and complete all recommended treatment.
- Surrender driver license and not drive until properly license by a state’s division of motor vehicles.
- Pay court costs.
- Any other lawful condition of probation.
Level 3 Punishment
- Fine of Up to $1,000.00.
- 6 months maximum in custody.
- 72 hours minimum of community service.
- Obtain a substance abuse assessment and complete all recommended treatment.
- Surrender driver license and not drive until properly license by a state’s division of motor vehicles.
- Pay court costs.
- Any other lawful condition of probation.
Level 4 Punishment
- Fine of up to $500.00.
- 120 days maximum in custody.
- 48 hours minimum of community service.
- Obtain a substance abuse assessment and complete all recommended treatment.
- Surrender driver license and not drive until properly license by a state’s division of motor vehicles.
- Pay court costs.
- Any other lawful condition of probation.
Level 5 Punishment
- Fine of up to $200.00.
- 60 days maximum in custody.
- 24 hours minimum of community service.
- Obtain a substance abuse assessment and complete all recommended treatment.
- Surrender driver license and not drive until properly license by a state’s division of motor vehicles.
- Pay court costs.
- Any other lawful condition of probation.
Written by Landon White.
