Since this Raleigh DWI Attorney Blog deals with all facets of a North Carolina DWI Defense, in addition to the greater area of North Carolina Criminal Defense, it only makes sense that we review the factors which the court considers when setting a DWI Defendant’s sentence.
In a previous post I reviewed North Carolina DWI Sentence Structure this article will be dedicated to explaining the three factors which the Judge considers for the purposes of setting a DWI Defendant’s sentence within North Carolina DWI Sentencing Structure.
To start with, this blog will discuss Aggravating Factors and Mitigating Factors. These two factors are used when a Judge is considering setting a Defendant’s sentence at a level 3, 4 or 5. That’s not to say that these ‘factors’ can’t be considered when setting a sentence at level 2, 1, or aggravated level 1, but these are set statutorily for the Judge to use for the purpose of setting sentences within level 3, 4, and 5. For these three levels, if a Defendant’s aggravating factors greatly outweigh their mitigating factors, they are set at a level 3. If these two levels are even, the Defendant is set at a level 4. If the Defendant’s mitigating factors greatly outweigh the aggravating factors, they are set at a level 5.
Aggravating Factors include: conviction of a prior DWI more than 7 years before the instant offense, two or more prior convictions for 3-point driving offenses within the preceding 5 years before the offense, gross impairment (.15 or above), especially reckless or dangerous driving, negligent driving leading to a reportable accident, passing a stopped school bus, conviction of speeding to elude apprehension, conviction of speeding at least 30 miles over the legal limit, or any other factor that aggravates the seriousness of the offense.
Mitigating factors include: voluntary submission to a Substance Abuse Assessment and participation in the recommended treatment, slight impairment (.09 or less), safe and lawful driving at the time of the offense, impairment which was caused by lawfully prescribed drugs within prescribed dosage, a statutorily safe driving record (no offense for which at least 4 points are assigned within 5 years of the date of the offense), or any other factor that mitigates the seriousness of the offense.
The other factor which is used by the court is referred to as Grossly Aggravating Factors. If any of these factors apply, then the Defendant is facing a DWI Sentence of Levels 2, 1 or Aggravated Level 1 (for stops from December 1, 2011 on). If the Defendant only has one Grossly Aggravating Factor, they will be sentenced at a level 2, if there are 2 Grossly aggravating Factors, the Defendant will be sentenced to a Level 1. If there are three or more Grossly Aggravating Factors and the Defendant was stopped prior to December 1, 2011, they will be sentenced to Level 1, but if the Driver was stopped December 1 or there after, they will be sentenced at the Aggravated Level 1.
Grossly Aggravating Factors include: a Driving While License Revoked charge at the time of the current charge and where the license was suspended for a prior DWI, serious injury to another caused by the Defendant’s impaired driving, a prior DWI conviction within the preceding 7 years, and having a child under 16 years of age in the vehicle at the time of the offense (as of December 1, the age is moved to passengers under 18 years old).
For a review of each North Carolina DWI Sentence Level, click on North Carolina DWI Sentence Structure.