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How it Starts
A DWI case begins on the road. Someone may call 911 to report bad driving, or maybe there is a wreck and EMS or police think someone was impaired before the crash. Or a routine traffic stop leads to law enforcement smelling alcohol, marijuana, or they see pills or another substance that gives them reason to think a driver may be impaired.
Breath Alcohol Content / Blood Alcohol Content
Everyone has heard that the legal limit for alcohol is .08. And that’s true. However, not all DWIs involve alcohol. And not all cases that involve alcohol have a specific BAC measurement. North Carolina law allows a driver to be prosecuted based on an officer’s opinion that a driver is impaired by any impairing substance while driving on a public road or parking lot.
But most cases that involve alcohol result in some sort of test for a driver’s BAC level. The first type of test is typically the Portable Breath Test, or PBT, that is administered by law enforcement on the side of the road. The results of this test are not admissible in Court, but are allowed to be used by law enforcement to help build the probable cause they need to charge DWI. The other way law enforcement tests for BAC is with a machine usually housed at the county jail. Typically, the Intoxilyzer machine is one where, after an observation period, an officer has a driver blow into a device to measure BAC. This typically requires two blows and the BAC result is the lower of the two blows. There are a lot of procedures and intricacies to this process, and knowing how to defend against an improper use of the machine can be critical for a DWI defense.
Some drivers refuse the breath machine at the jail, which is their right. This, however, will be treated by DMV has a willful refusal and cause a year-long suspension of a license.
If someone refuses a test, or a driver is taken to the hospital where no breath test can be performed, then law enforcement may ask a driver to provide a blood sample for BAC testing at the North Carolina State Crime Lab. If this blood draw is refused, law enforcement may seek a search warrant to obtain a driver’s blood regardless of the driver’s wishes.
Field Sobriety Tests
North Carolina law is not very strict about field sobriety tests. They are supposed to be a series of tests, tied to clinical testing data, showing a correlation between failure of the field sobriety tests and a high BAC or impairment. But for most cases, field sobriety tests are just an opportunity for law enforcement to observe a driver’s coordination to help build the DWI case against the driver.
The typical field sobriety tests are the Horizontal Gaze Nystagmus test, the Walk and Turn test, and the One-Leg Stand test. For the HGN test, an officer holds a small light or pen up for the driver’s eyes to follow. This is supposed to show the officer involuntary eye twitching that occurs when someone has been drinking alcohol. The Walk and Turn is where a person is instructed to walk, heel-to-toe and then swivel back around and return to their original position. The One-Leg Stand is where the driver is instructed to stand on one leg and count to a number. The officer is looking for lack of coordination and an impaired sense of time.
A driver may refuse these test, but you can expect an officer to be suspicious of someone who doesn’t want to participate. The results of these field sobriety tests are usually documented on a standard form used by police, called the Driving While Impaired Report, or DWIR.
Driving While Impaired Report (DWIR)
To assist the officer in collecting incriminating information from a driver, law enforcement will use a DWIR form. The form allows the officer to document answers to questions like these:
- When was your last drink?
- How many did you have?
- On a scale of 0 to 10, with 0 being completely sober and 10 being completely drunk, where do you fit?
The full form can be found here. The driver does not have to answer any of these questions, but more often than not people tend to talk to police and provide them with the evidence they need to charge a DWI.
Frequently Asked Questions
Driving While Impaired (DWI) and Driving Under the Influence (DUI) are the same thing in North Carolina. In our courts, however, the term DWI is universally used. North Carolina Generate Statute § 20-138.1 includes driving “under the influence of an impairing substance”, driving with an “alcohol concentration of 0.08 or more”, and driving with “any amount of a Schedule I controlled substance” in the driver’s blood or urine.
A conviction for DWI in North Carolina typically results in a 340% increase in insurance premiums.
A first-time conviction for DWI in North Carolina will result in a one-year revocation of a drivers’ license. Some individuals may be able to obtain a limited driving privilege to continue driving of work and household-related purposes during that year of revocation. Second or subsequent DWI convictions can lead to longer, or permanent, license revocations.
While rare, it is very possible to be charged with a DWI even if a person’s BAC was under .08. There are a few reasons for this. First, a person could be impaired by a combination of alcohol and other substances. Second, some individuals may be “appreciably” or noticeably impaired before they hit .08 on a breath or blood test.
Even taking prescription medication, exactly as a doctor prescribed, can lead to a DWI charge. If the prescription is an “impairing substance” and it causes impairment to the driver, that could lead to law enforcement charging DWI.
North Carolina law states that for someone to be charged for a DWI, the driving had to have occurred on a highway. However, the term “highway” in North Carolina law has a specific definition:
“The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic. The terms “highway” and “street” and their cognates are synonymous The terms “highway” and “street” and their cognates are synonymous”. (emphasis added). NCGS 20-4.01(13).
Driving While Impaired charges can also come from driving in a Public Vehicular Areas, or PVAs, like parking lots.
Being charged with a DWI, with a BAC of .08 or higher triggers a thirty-day revocation of your license. Sometimes the 30 days starts at the beginning of the charge, or in the case of a blood draw, might start when DMV gets the results of a blood test that is .08 or higher.
A DWI conviction will cause a separate suspension. First time DWIs typically result in a one-year suspension of a drivers’ license (with most people being eligible to drive for work/school on a limited privilege during the suspension period). Multiple DWI convictions can lead to longer terms of suspensions and even a permanent revocation of a license to drive.
A Guide to DWI Sentencing in North Carolina
When someone is convicted of a DWI, the judge balances a series of factors based on a particular case and a person’s criminal record. There are “grossly aggravating” factors, “aggravating factors” and “mitigating” factors. As you can guess, Grossly aggravating and Aggravating factors make for a harsher DWI sentence. Mitigating Factors lessen the sentence a judge can impose. Depending on how these factors are balanced can greatly affect the outcome of a case. Here are the current factors that affect a DWI case:
Grossly Aggravating Factors
- The Driver has a prior DWI conviction within 7 years
- Two or more prior DWI convictions within 7 years
- A DWI conviction that occurred after the current case’s date of offense
- Two or more of these prior convictions
- A DWI conviction was appealed and is being remanded back to district Court, but sentencing on that other offense has not yet occurred
- The Driver’s License was revoked for a prior Impaired Offense at the time of this DWI
- The DWI caused serious injury to another person
- There was a child in the car during the DWI (or a person with the mental development of a minor)
- A person with a physical disability was unable to exit the Defendant’s vehicle unaided because of the DWI
Aggravating Factors
- The Driver’s faculties were grossly impaired
- The Driver’s BAC was 0.15 or greater
- Driving was especially reckless or dangerous
- Driver caused property damage of $1000 or more
- DWI caused an injury
- The driver’s license was revoked at the time of the DWI
- Driver has prior non-DWI serious traffic convictions
- Driver has a prior DWI conviction more than 7 years old
- The Driver has prior convictions for attempting to elude police or of driving in excess of 30 mph over the speed limit.
- Driver passed a stopped school bus
Mitigating Factors
- Driver’s impairment was slight, only from alcohol, and remained under a BAC of .09 (or no chemical test was performed)
- Driver’s driving was safe and lawful besides being impaired
- Driver has a good driving record
- The impaired driving was primarily from lawfully prescribed medication
- Driver has completed a mental health assessment
- Driver has completed a substance abuse assessment
DWI Sentencing Levels
Once a judge has decided how to balance the case factors in a DWI, they impose a sentence based on the chart below (based off a North Carolina School of Government Publication):
Aggravated Level 1 Sentence
G.S. 20-179(f3)
Three or more grossly aggravating factors
- Incarceration for 12 months minimum to 36 months maximum
- If incarceration term is suspended (meaning probation is imposed instead of jail), then Court must order:
- Imprisonment of at least 120 days as a condition of special probation
- Requirement that defendant abstain from alcohol consumption for a minimum of 120 days to a maximum of the term of probation, as verified by continuous alcohol monitoring (CAM) system
- Requirement that defendant obtain a substance abuse assessment and education or treatment required by G.S. 20-17.6
Level 1 Sentence
G.S. 20-179(g)
Grossly aggravating factor in G.S. 20-179(c)(4) or two other grossly aggravating factors
- Incarceration 30 days minimum to 24 months maximum
- If incarceration term is suspended (meaning probation is imposed instead of jail), then Court must order:
- Special probation requiring (1) imprisonment of at least 30 days or (2) imprisonment of at least 10 days and alcohol abstinence and CAM for at least 120 days
- Requirement that defendant obtain a substance abuse assessment and education or treatment required by G.S. 20-17.6
- Up to a $4,000 fine
Level 2 Sentence
G.S. 20-179(h)
One grossly aggravating factor, other than the grossly aggravating factor in G.S. 20-179(c)(4)
- Incarceration 7 days minimum to 12 months maximum
- If incarceration term is suspended (meaning probation is imposed instead of jail), then Court must order:
- Special probation requiring (1) imprisonment of at least 7 days or (2) alcohol abstinence and CAM for at least 90 days
- If Level Two based on prior conviction or DWLR for an impaired driving revocation and prior conviction occurred within five years, sentence must require 240 hours of community service if no imprisonment imposed
- Special probation requiring (1) imprisonment of at least 7 days or (2) alcohol abstinence and CAM for at least 90 days
- Requirement that defendant obtain a substance abuse assessment and education or treatment required by G.S. 20-17.6
- Up to $2,000 fine
Level 3 Sentence
G.S. 20-179(i)
Aggravating factors substantially outweigh any mitigating factors
- Incarceration 72 hours minimum to 6 months maximum
- If incarceration term is suspended (meaning probation is imposed instead of jail), then Court must order:
- Must require one or both of the following:
- Imprisonment for at least 72 hours as a condition of special probation
- Community service for a term of a at least 72 hours
- Must require one or both of the following:
- Requirement that defendant obtain a substance abuse assessment and education or treatment required by G.S. 20-17.6
- Up to $1,000 fine
Level 4 Sentence
G.S. 20-179(j)
No aggravating factors and mitigating factors or aggravating factors are substantially counterbalanced by mitigating factors
- Incarceration 48 hours minimum to 6 months maximum
- If incarceration term is suspended (meaning probation is imposed instead of jail), then Court must order:
- Must require one or both of the following:
- Imprisonment for 48 hours as a condition of special probation
- Community service for a term of 48 hours
- Must require one or both of the following:
- Requirement that defendant obtain a substance abuse assessment and education or treatment required by G.S. 20-17.6
- Up to $500 fine
Level 5 Sentence
G.S. 20-179(k)
Mitigating factors substantially outweigh aggravating factors
- Incarceration 24 hours minimum to 60 days maximum
- If incarceration term is suspended (meaning probation is imposed instead of jail), then Court must order:
- Must require one or both of the following:
- Imprisonment for 24 hours as a condition of special probation
- Community service for a term of 24 hours
- Must require one or both of the following:
- Requirement that defendant obtain a substance abuse assessment and education or treatment required by G.S. 20-17.6
- Up to $200 fine
Felony DWI
Felony DWI charges involve a typical DWI plus some other aspect of the case that elevates the crime to a felony. For example, Habitual DWI is a felony person has been convicted of 3 or more prior DWI offenses within a 10 year period. See NCGS 20-138.5. A conviction requires a judge to impose a mandatory minimum prison sentence of 12 months. Other felony DWI offenses in North Carolina typically involve an injury or death that resulted from impaired driving, but those are not commonly charged and are not the focus of this guide.
License and Insurance Fallout
A DWI conviction will result in 12 insurance points, which will make the driver considered high risk. This can cause serious rate increases, currently a 340% increase in premiums. For your license, a DWI conviction will result in a one-year revocation of your license. It can be possible to obtain a Limited Driving Privilege to allow legal driving during this period of revocation. Repeat DWI convictions will result in multi-year license revocations or a permanent revocation, and a Limited Driving Privilege is not possible.
What Now?
Your case will go to court. You will have to decide on counsel. An experienced attorney can help you navigate the strengths and weaknesses of your case to either fight the DWI charge or help lessen the impact of a DWI conviction. DWI cases are typically handled more slowly than other misdemeanor cases in District Court, so be prepared for continuance court dates. Perhaps your case is waiting on a blood test, or there are issues with witnesses that need to be addressed. Don’t waste your court dates and be proactive about your defense.
There are several strategies and approaches to handling a DWI case, and having a lawyer with a deep background in DWI cases and trials will go a long way to preventing a bad outcome.