The Aggravating Factors in a North Carolina DWI

What they are and how they are used to punish offenders

Unlike most states, North Carolina has an unusually complex method for sentencing individuals convicted of driving while intoxicated (DWI).

“Aggravating factors are probably the most common questions I get, particularly because it's complicated and the consequences are a big deal. In North Carolina, you can get active jail time even on your first offense,” says Bill Powers, a DWI defense attorney in Charlotte.

Following a DWI conviction, the trial court is required to conduct a sentencing hearing, at which the judge will consider both “aggravating” and “mitigating” factors. These factors are then used to assign one of five punishment levels to the defendant.

What Are the Factors?

As the name implies, aggravated factors are those that may be used to increase a defendant's sentencing level. By law the judge must “weight the seriousness of each aggravating factor in the light of the particular circumstances of the case.” Some of the more common aggravating factors include:

  • the defendant had a blood-alcohol concentration (BAC) of 0.15 percent or higher
  • driving that was considered “especially reckless or dangerous”
  • driving on a previously revoked driver's license
  • driving that was negligent to the point where it caused a “reportable accident”
  • prior to the DWI, the defendant had two or more prior traffic violations that resulted in demerits of at least three points on their driver's license
  • the defendant had a prior conviction in North Carolina for speeding at least 30 miles per hour over the posted speed limit
  • the defendant had a prior conviction in North Carolina for “fleeing or attempting to elude apprehension” by law enforcement
  • the defendant had a prior conviction in North Carolina for “[p]assing a stopped school bus”

This is not an exhaustive list, as the judge may consider “[a]ny other factor that aggravates the seriousness” of the DWI conviction. And in addition to these aggravating factors, the court must also consider a separate list of “grossly aggravating factors,” which are as follows:

  • the defendant had a previous DWI conviction within the past 7 years
  • the defendant's license to drive was previously revoked specifically due to a DWI conviction
  • the defendant's current DWI resulted in “[s]erious injury to another person”
  • any of the following people were in the defendant's care at the time of the DWI: a minor, an adult with the “mental development” of a minor, or a person with a “physical disability” that prevented them from exiting the vehicle without assistance

“In every DWI case, the first four questions I ask involve the aggravating factors,” Powers says. “Have you had a prior DWI within seven years? Was your license revoked in this offense due to a prior driving while impaired offense? Were you involved in a wreck where there was serious bodily injury? Was there a child under the age of 18 in the vehicle at the time?”

Calculating the Sentencing Level

As noted above, there are six distinct sentencing levels for DWI in North Carolina. Levels 3 thru 5 are reserved for cases where no “gross aggravating” factors exist. Basically, Level 3 means the aggravating factors outweigh any mitigating factors presented by the defense, Level 4 means the factors are about equal, and Level 5 means the mitigating factors outweigh any aggravating factors.

“The most serious is level A1. That stands for aggravated level one sentencing, and you can get up to three years in prison and a $10,000 fine,” Powers explains. “The way you get an A1 is if you have three or more of the grossly aggravating factors. If you have two grossly aggravating factors, it's a level one DWI which carries a minimum of 30 days in jail, up to 2 years in prison. And if you have one grossly aggravating factor, it's a level two DWI which is a minimum of seven days and up to one year.”

However, the court may waive the jail term if the defendant completes drug or alcohol treatment and meets certain other conditions. These are known as “mitigating factors,” and can be a huge boon to your case.

“There is an argument and a balancing process if you're a level three, four or five, where you're trying to get the mitigating factors to substantially outweigh the aggravating factors,” Powers says. “The problem is they don't tell the judge how much the factors weigh. So there is a fair amount of arguing on the balancing factors. Because if the aggravating factors as substantially outweighed by the mitigating factors, that's a level five. If the aggravating factors and the mitigating factors balance out, that's a level four.”

Building a case for your defense it’s particularly difficult in North Carolina, not to mention risky given the consequences, so it’s advisable to contact a qualified North Carolina DWI defense lawyer.  Another arrow in their quiver, for example, is arguing definitions such as “extremely reckless or dangerous.”

“That, to me, is a little bit more nebulous,” Powers says. “Some would say that just driving while impaired is reckless or dangerous. Others, maybe not.”

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