Driving While Impaired (“DWI”) sentencing in North Carolina is generally distinct from other types of misdemeanor sentencing and is governed by its own sentencing statute, North Carolina General Statute § 20-179. The law flat-out requires that after a DWI conviction, the court must hold a hearing and determine the existence of so-called aggravating and mitigating factors, which will affect what “Level” you are for sentencing, and what sentence you consequently receive.

DWI sentencing classifications in this state range from Level 1 to Level 5—and they may not mean what you think. A Level 5 is actually the lightest level of punishment, while Level 1 is the most severe. What level you will be entirely depends upon how many “grossly aggravating” (if any), aggravating and mitigating factors you have.

Examples of grossly aggravating factors include if you have a prior conviction for an impaired driving offense in the seven years before the date of offense of the instant conviction (for which you’re being currently sentenced); or, if during the instant offense: your impaired driving caused serious injury to another person; you had a child under the age of 18 in the vehicle; or your driver’s license was revoked for another impaired driving offense. Meanwhile, simple aggravating factors include having a Blood Alcohol Content (“BAC”) of 0.15 or higher, negligent driving that led to an accident that could be reported, or driving while your license was revoked for any other reason.

Mitigating factors include if your BAC was 0.09 or lower, having what qualifies as a “safe driving record,” or if your impairment was due to a legally prescribed controlled substance as long as you were within the legally prescribed range.

The State has the burden of proving to the court that any of the grossly aggravating factors (if any) or aggravating factors exist, by a “preponderance” of the evidence (which means “more likely than not,” a burden much lesser than the “beyond a reasonable doubt” standard required for a criminal conviction). Because of this and the many other intricacies involved in these types of charges, it is extremely important to have the assistance of an experienced criminal defense attorney who handles DWI offenses regularly.

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