There are a lot of questions about what exactly qualifies for drunk driving or driving while impaired (DWI).

We answer some frequently asked questions here. This information, however, does not replace a free consultation with one of our experienced attorneys – and we recommend you call us immediately if you are charged with a DWI. Understanding the specifics of your situation ensures we offer legal counsel that may reduce your penalties and help negotiate driving privileges.

  1. What is DWI?
  2. If I’m convicted, what is the punishment?
  3. What aggravating factors could increase my punishments?
  4. Is there any way to avoid going to jail?
  5. Will I be able to drive at all?
  6. Will I my license be revoked?
  7. How much will a DWI cost me?
  8. What do I need to do next?

1. What is a DWI?
For you to be found guilty of impaired driving, the State must prove three things beyond a reasonable doubt:

First, that you were driving a vehicle.

Second, that you were driving that vehicle upon a street, highway, or public vehicular area within the State.

Third, that at the time you were driving that vehicle:

A) — You were under the influence of an impairing substance.  A person is under the influence of an impairing substance when he/she has consumed a sufficient quantity of an impairing substance to cause his/her to lose the normal control of his/her bodily or mental faculties, or both, to such an extent that there is an appreciable impairment (however slight) of either or both of these faculties.

OR

(B) — You had consumed sufficient alcohol that at any relevant time after the driving you had an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath.  A relevant time is any time after the driving, that you still have in your body, alcohol consumed before or during the driving.

2. If I’m Convicted, What Are the Punishments?
The punishment for DWI depends upon a number of factors.  Generally, there are 5 sentencing levels.  Level A1 being the most serious, and Level 5 being the least serious.  Your sentencing level is dependent upon the existence of grossly aggravating factors, aggravating factors and mitigating factors.

Determining Your Punishment Level:

LEVEL A1:  This is an aggravated Level 1 sentence, and requires the Court to find 3 or more Grossly Aggravating Factors as defined by statute.

LEVEL 1:  Requires the Court to find 2 or more Grossly Aggravating Factors as defined by statute. Grossly Aggravating Factors include, but are not limited to:

  1. The conviction of a prior DWI within 7 years from the offense date of the current DWI (each prior conviction within 7 years counts individually as a grossly aggravating factor)
  2. Driving on a revoked driver’s license due to a prior DWI conviction or revocation at the time of the offense
  3. Having a child under the age of 18 in the car at the time of the offense
  4. Causing serious injury to a person as a result of the impaired driving.

LEVEL 2: Requires the Court to find only 1 Grossly Aggravating factor, as described above.

LEVELS 3, 4 and 5: require the Court to find the existence of Aggravating Factors and Mitigating Factors, and then use a balancing test to arrive at an appropriate sentence.

  • Level 3 – Aggravating Factors outweigh Mitigating Factors
  • Level 4 – Aggravating Factors are even with Mitigating Factors
  • Level 5 – Mitigating Factors outweigh Aggravating Factors

3. What aggravating factors could increase my punishments?
Aggravating factors can increase the type and amount of punishments you face. These factors include, but are not limited to:

A BAC level of 0.15 or more

A prior conviction of DWI that occurred more than 7 years before the date of this offense

Especially reckless or dangerous driving

Negligent driving that led to property damage of $1,000.00 or more or personal injury

Driving by the defendant while his driver’s license was revoked for Non-DWI related reason

Two or more prior convictions of a motor vehicle offense for which at least 3 points are assigned within 5 years of the date of this offense OR one or more prior convictions of an offense involving impaired driving that occurred more than 7 years before the date of this offense

Conviction of speeding while fleeing or attempting to elude apprehension

Conviction of speeding by the defendant by at least 30 miles per hour over the legal limit

Passing a stopped school bus

Any other factor that aggravates the seriousness of the offense.

Mitigating Factors include, but are not limited to:

Slight impairment solely from alcohol and the alcohol concentration did not exceed 0.09

Safe and lawful driving, except for the impairment

Safe driving record, having no 4 point offenses within the last 5 years

Impairment was caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount taken was the prescribed dosage

Completing a Substance Abuse Assessment

4. Can I Avoid Going to Jail?

LEVEL A1:  Mandatory minimum of 120 days in jail (maximum of 3 years); A fine of up to $10,000.00 (this does not include other costs that will be required – see “How Much Will This Cost Me?” below)’ and revocation of your license.

LEVEL 1:  Mandatory minimum of 30 days in jail (maximum of 2 years); A fine of up to $4,000.00 (this does not include other costs that will be required – see “How Much Will This Cost Me?” below); and revocation of your license.

LEVEL 2:  Mandatory minimum of 7 days in jail (maximum of 1 year); A fine of up to $2,000.00 (this does not include other costs that will be required – see “How Much Will This Cost Me?” below); and revocation of your license.

LEVEL 3:  The Court is authorized to impose a suspended sentence (or a maximum of 6 months in jail) and a fine of up to $1,000.00 (this does not include other costs that will be required – see “How Much Will This Cost Me?” below).  Normally, the judge will impose a suspended sentence and require 72 hours of Community Service OR 72 hours in jail (your choice).  Your license will be revoked as well.

LEVEL 4:  The Court is authorized to impose a suspended sentence (or a maximum of 120 days in jail) and a fine of up to $500.00 (this does not include other costs that will be required – see “How Much Will This Cost Me?” below).  Normally, the judge will impose a suspended sentence and require 48 hours of Community Service OR 48 hours in jail (your choice).  Your license will be revoked as well.

LEVEL 5:  The Court is authorized to impose a suspended sentence (or a maximum of 60 days in jail) and a fine of up to $200.00 (this does not include other costs that will be required – see “How Much Will This Cost Me?” below).  Normally, the judge will impose a suspended sentence and require 24 hours of Community Service OR 24 hours in jail (your choice).  Your license will be revoked for a period of 1 year (usually – see “License Revocation Period” below).

An exception for going to jail exists for defendants who, prior to being sentenced, voluntarily submit to inpatient treatment for alcohol addiction.  In 1987, Alex Hall, while a member of the North Carolina House of Representatives, introduced legislation that allowed the sentencing judge, in his discretion, to give credit for the days spent in an inpatient treatment facility licensed by the State.  That bill passed and the judge now has the option to give a defendant credit for the time spent in treatment.

Note:  Inpatient treatment must be completed BEFORE your case is disposed of (either plead guilty or found guilty).

5. Will I be able to drive at all?
If you are convicted of a Level 3, 4, or 5 DWI, and you have a valid North Carolina Driver’s License at the time of conviction, you may be eligible for a Limited Driving Privilege.  This limited driving privilege will normally allow you to drive for school, work, and household purposes (no “household purpose” driving if you blew .15 or above), during standard hours of 6AM – 8PM, Monday through Friday.

However, if you have work or school that falls outside of those hours, exceptions can be noted on your limited privilege.  If you are eligible for a Limited Driving Privilege, you will need to have proof of

  1. Your Substance Abuse Assessment AND
  2. Insurance in the form of a DL-123.

NOTE:  If you were under the age of 21 when you received your DWI, you are NOT eligible for a Limited Driving Privilege.  If you are only charged with Driving After Consuming Under the Age of 21, you may be eligible for a Limited Driving Privilege if you are 18, 19 or 20.
Learn more about DWI as a Minor

6. Will I my license be revoked?
The NC DMV will revoke your license for DWI offenses based on the following guidelines:

1st Offense This means you’ve never had a prior DWI conviction.  Your license will be revoked by DMV for 1 year.

2nd Offense:  If you have 2 DWI convictions within a 3 year period, DMV will revoke your license for 4 Years.  If your second offense is outside of this 3 year period, your revocation will be for 1 year.

3rd Offense:  If you have 3 DWI convictions within a 10 year period (the 2nd and 3rd of which occurred within 5 years of each other), DMV will permanently revoked your license.  However, you may be eligible for a hearing to get your license back after a 3 year period.

7.  How Much Will a DWI Cost?
All of the fines listed above will not all of the fees you must pay. These are only court related fees. If you’re found guilty the following is the most likely amount you will be required to pay:

Court Costs: $290

Fines: Depends on Level of Punishment (see above)

Community Service Fee: $250 (This is only a choice for Levels 3, 4 and 5)

Jail: $40 per day

Limited Driving Privilege: $100 (If applicable)

Note: Court Costs may increase at any time – we will do our best to inform you if this happens.

8. What Do I Need To DO Next?

Keep your court dates: You should always keep up with your court dates. You can check pending dates by visiting: http://www1.aoc.state.nc.us/www/calendars/CriminalQuery.html

Complete your alcohol assessment: As mentioned above, completing an Alcohol Assessment before conviction is considered a mitigating factor and may help with your sentencing.  However, this will only help if you are a Level 3, 4, or 5.  After completing the Alcohol Assessment, you will be recommended to sign up for a series of Alcohol Classes.  There is a cost associated with both the Alcohol Assessment and the Alcohol Classes.

  1. If you are convicted, you will be required to complete the recommended classes as a part of your Judgment.
  2. If you are found not guilty, or your case is dismissed, you will not be required to complete the classes.The trick is, you only have only 6 months from the date of your Alcohol Assessment to sign up for the recommended Alcohol Classes before you must complete another Alcohol Assessment.  It is up to you to decide whether you want to go ahead and complete the recommended Alcohol Classes, or if you want to risk your case being continued further than 6 months and have to complete another Alcohol Assessment.
Prepare a summary: Our memories fade with time.  As such, we recommend preparing a summary of events regarding your DWI stop and arrest.  It is helpful to break down your summary into the following sections:

  1. The Stop – Everything that happened up to the Stop of your vehicle.  What did you do earlier that day?  Where were you going right before you were pulled?  Where were you coming from?  Why did the officer stop your vehicle.
  2. The Arrest – In as much detail as possible, what happened from the time the officer approached your vehicle, to the time you were placed under arrest and transported to the jail.  This would include any Field Sobriety Tests, any questions asked, and any statements you remember making to the Officer.
  3. Back at the Station – Write about what happened back at the station.
  4. Witnesses – Write down any witnesses who saw you that night, either during the DWI stop, right before, or right afterwards.  List their name, contact information, and the information they would testify to in court.

Take Pictures: It can be very helpful to have pictures of the area where the officer stopped you, and where you may have completed Field Sobriety Tests.  Try to get landmarks (i.e., street signs, recognizable buildings) in the frame so that the Court can tell where your picture was taken.

Contact us today for a free consultation