211 E Six Forks Rd Suite 106

Raleigh, NC 27609

Call Us

919-724-7974

DWI Law 

If you have been charged with a Driving While Impaired (DWI) offense in Raleigh, Durham or Chapel Hill, North Carolina, it is imperative that you understand your options and the potential consequences you are facing. It is equally important that you gain some perspective about the legal process itself. It takes some time to investigate the facts and circumstances surrounding your case and to determine potential defenses to your charge. We will help you navigate your way through the Court system and determine the best course of action at each step of the way. The Law Corner attorneys will provide you with the knowledge, assistance and expertise critical to achieve the best possible outcome in your case. In North Carolina, DWI laws have become increasingly severe over the last several years. With organizations like M.A.D.D. pushing for convictions and frequent media coverage of motor vehicle accidents and deaths attributed to drug and alcohol use, the State is able to summon considerable resources to secure your conviction. Now more than ever you need someone in your corner.

One thing is certain: an arrest for DWI in North Carolina must be taken very seriously. Even for a first-offender, the days of receiving a “slap on the wrist” are long gone. The charge itself carries serious consequences. If convicted, your driver’s license will be revoked. You will pay a substantial fine, court costs, lab fees, possibly probation fees, fees for evaluations and substance abuse treatment, and fees to have your license restored. You will be ordered to submit to a substance abuse assessment and complete all recommended treatment or education requirements. You may be ordered to install an Interlock Device on any car you own or operate.  You can face time in prison.  The entire process from arrest to conviction may take a year or more.  Here is an overview of what you can expect if you get arrested for a DWI in North Carolina:

After Your Arrest

The arresting officer will issue you a Uniform Citation informing that he or she has probable cause to believe that you committed a DWI offense. You will then be taken before a judicial official—typically a Magistrate—who will confirm that there is probable cause for your arrest and Order your detention in jail. The Magistrate will determine the conditions of your release pending trial and you will be Ordered and required to attend all scheduled Court dates. In a typical DWI case the Magistrate will authorize your release in exchange for your written promise to appear at all scheduled court dates or the posting of a cash bond.

Statutory Civil Drivers License Revocation

Your driver’s license will be automatically and immediately revoked by Order of the Magistrate upon the arresting officer’s report that you were arrested with a tested blood-alcohol content (“BAC”) of 0.08 or higher (0.04 or higher if you were driving a commercial motor vehicle), or you are under age 21 and your tested BAC is above 0.04. This automatic and immediate revocation of your driver’s license is called a statutory “civil revocation” and lasts for 30 days. (Depending on your circumstances you may petition the court for a limited driving privilege after 10 days following your arrest).

Discovery and Defenses

The discovery process begins immediately following your arrest; it is imperative that you retain an attorney as soon as possible to guide you through the process.  As mentioned herethere are many facts that an attorney needs to find out from you and from the officer to determine what, if any, defenses apply to your case.  The initial consultation is the first step.  In addition to obtaining the facts as you remember them, the attorney will file motions for discovery asking for materials and evidence including but not limited to dash cam video, the police report, the Alcohol Incident Report (AIR) form, and proof that all equipment was properly calibrated.   All of this information will determine whether there are facts to support and defenses and/or suppression motions.  For example, voluntary intoxication is not a defense to DWI (nor is your lack of memory regarding the DWI due to voluntary intoxication), however, involuntary intoxication may be used as a defense.  The discovery process may take a month or more, it takes time for the information to be compiled by the officer and turned in to the District Attorney’s Office.

Motions, Plea, and Trial

The motion/plea/trial phase of the case can take months.  Following the discovery process, there are motions that can be filed based on all the facts.  In some cases, a motion to dismiss can be made due to the officer’s failure to obtain probable cause to arrest you.  Suppression motions can be filed in an attempt to prevent evidence from being testified to (for example, a suppression motion can prevent the Intoxilyzer results from being entered into evidence if given improperly).

Depending on the facts (and the outcome of the motions) one has to decide whether to plead guilty to DWI or take the case to trial.  In the event of pleading guilty, the judge will sentence you according to the North Carolina DWI Sentencing Guide, which can be found below.  If one decides trial, then the state must prove all the elements of DWI beyond a reasonable doubt.  The judge (or jury) will determine guilt or innocence based on the facts.  Most DWI cases start in District Court (the judge is the fact finder), however, if convicted, the case can be appealed and tried before a jury.

Limited Driving Privilege

Below you will find the sentencing factors and the sentencing levels of a DWI conviction, but one thing is certain in any DWI conviction, your license will be suspended for at least one (1) year.  In many cases a person convicted of DWI is eligible for a Limited Driving Privilege (LDP).  With an LDP, a person is allowed to drive for work purposes and/or for the maintenance of one’s household during specific hours of specific days of the week.  As mentioned above, you can also obtain a LDP during your civil revocation after ten (10) days.  Make sure to speak with your attorney regarding your eligibility for a LDP.

The Potential Consequences: North Carolina DWI Sentencing Guide

DWI sentencing in North Carolina is fairly complicated and structured into six levels; from most severe to least severe, the DWI sentencing levels are: Aggravated Level One, Level One, Level Two, Level Three, Level Four, and Level Five. The level of punishment is determined by balancing certain facts and circumstances involved with your particular case. These are known as “sentencing factors” and are divided into specific categories: grossly aggravating factors, aggravating factors, and mitigating factors.

DWI Sentencing Factors

 

Grossly Aggravating Factors:

These are the least helpful to your case:

(1) A prior conviction for an offense involving impaired driving if:

  1. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

  2. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

  3. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20‑38.7.

NOTE: Each prior conviction is a separate grossly aggravating factor.

(2) Driving by the defendant at the time of the offense while his or her driver’s license was revoked for impaired driving.

(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.

(4) Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

Aggravating Factors:

These are the second least helpful to your case:

(1) Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

(2) Especially reckless or dangerous driving.

(3) Negligent driving that led to a reportable accident.

(4) Driving by the defendant while his driver’s license was revoked.

(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20‑16 or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.

(6) Conviction under G.S. 20‑141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.

(7) Conviction under G.S. 20‑141 of speeding by the defendant by at least 30 miles per hour over the legal limit.

(8) Passing a stopped school bus in violation of G.S. 20‑217.

(9) Any other factor that aggravates the seriousness of the offense.

NOTE: Except for the factor in (5), the conduct constituting the aggravating factor must have occurred during the same incident as the impaired driving offense.

Mitigating Factors:

These are helpful factors for your case:

(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.

(2) Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.

(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.

(4) A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20‑16 or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.

(5) Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.

(6) The defendant’s voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.

(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.

(7) Any other factor that mitigates the seriousness of the offense.

DWI Punishment Levels

Following are the Sentencing Levels that determine the range of potential consequences that may be imposed by the Court:

Aggravated Level One DWI Punishment:

  • Imposed if three or more grossly aggravating factors are present

  • Fine: Up to $10,000

  • Jail: Minimum of 12 months, maximum of 36 months — with no eligibility for parole

    • But: Imprisonment term can be suspended only if a condition of special probation is imposed requiring a minimum term of imprisonment of at least 120 days

    • If probation is imposed, it must include the condition that the defendant abstain from alcohol for at least 120 days and undergo a substance abuse assessment and related treatment or education

Level One DWI Punishment:

  • Imposed if either:

    • The defendant was accompanied by a minor child (under 18) the time of the offense, or

    • Any two of the other grossly aggravating factors are present

  • Fine: Up to $4,000

  • Jail: Minimum of 30 days, maximum of 24 months

    • Imprisonment term may be suspended only if a condition of special probation is imposed including a minimum term of imprisonment of 30 days

    • BUT: A judge may reduce the minimum term of imprisonment required to a term of not less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, for a period of not less than 120 days. Pre-trial credit of up to 60 days may be given for alcohol monitoring prior to judgment, toward the 120-day period.

    • If probation is imposed:

      • Probation will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education

      • Probation may include a requirement of abstaining from alcohol, monitored by a continuous alcohol monitoring system, for anywhere between a minimum period of 30 days, up to the maximum of the term of probation

Level Two DWI Punishment:

  • Imposed if:

    • No minor child (under 18) was present in the vehicle, and

    • Only one other grossly aggravating factor is present

  • Fine: Up to $2,000

  • Jail: Minimum of 7 days, maximum of 12 months

    • Imprisonment term may be suspended only if a condition of special probation is imposed including a minimum term of imprisonment of 7 days,

    • OR: If the individual is ordered to abstain from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety. Up to 60 days of pretrial credit may be granted against the 90-day requirement, for voluntary alcohol monitoring prior to judgment.

    • BUT: If the defendant is subject to Level Two punishment as a result of a prior DWI conviction or driving on a license revoked as a result of a prior DWI, AND the conviction for a prior offense involving impaired driving occurred within five years before the date of the offense for which the defendant is being sentenced and the judge suspends all active terms of imprisonment and imposes abstention from alcohol as verified by a continuous alcohol monitory system, then the judge MUST also impose as an additional condition of special probation that the defendant must complete 240 hours of community service.

    • If probation is imposed:

      • Probation will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education

      • Probation may include a requirement of abstaining from alcohol, monitored by a continuous alcohol monitoring system, for anywhere between a minimum period of 30 days, up to the maximum of the term of probation, along with any other lawful conditions of probation the judge should choose to impose.

Level Three DWI Punishment:

  • Imposed if:

    • No grossly aggravating factors are present, and

    • Aggravating factors substantially outweigh any mitigating factors

  • Fine: Up to $1,000

  • Jail: Minimum of 72 hours, maximum of 6 months

    • Term of imprisonment may be suspended, but the suspended sentence must include:

      • Imprisonment for a term of at least 72 hours as a condition of special probation; OR

      • Community service for at least 72 hours; OR

      • Any combination of the above

  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

  

Level Four DWI Punishment:

  • Imposed if:

    • No aggravating or mitigating factors are present, or

    • Aggravating factors are substantially counterbalanced by any mitigating factors

  • Fine: Up to $500

  • Jail: Minimum of 48 hours, maximum of 120 days

    • Term of imprisonment may be suspended, but the suspended sentence must include:

      • Imprisonment for a term of at least 48 hours as a condition of special probation; OR

      • Community service for at least 48 hours; OR

      • Any combination of the above

  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

Level Five DWI Punishment:

  • Imposed if:

    • No aggravating or mitigating factors are present, or

    • Mitigating factors substantially outweigh any aggravating factors

  • Fine: Up to $200

  • Jail: Minimum of 24 hours, maximum of 120 days

    • Term of imprisonment may be suspended, but the suspended sentence must include:

      • Imprisonment for a term of at least 24 hours as a condition of special probation; OR

      • Community service for at least 24 hours; OR

      • Any combination of the above

  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

Conclusion

We trust that it is clear that the potential consequences of being charged with a DWI in North Carolina are severe. The good news is that you still have rights under the laws of this State and the Constitution of the United States of America. We are here to protect those rights and ensure that you are treated fairly and granted the due process you are entitled to under the law. There are a number of possible defenses to a DWI charge. If there is a viable defense to your case, we will find it. In the alternative, we can help you minimize the negative effects of a conviction. You need somebody in your corner at this time. That’s what we’re here for.

Contact US

Testimonials

I want to convey my sincere thanks and gratitude to you, Brian and the rest of your staff for doing a great job on my case and getting what is truly a favorable outcome for me. While involved in my case, you performed exceptionally and demonstrated a great deal of professionalism. I appreciate the hard work you all have put into my case and would recommend you to anyone. Thank you again.

– S.L

Defense Team

Brian Demidovich

Dan O’Malley

Blog

No Results Found

The page you requested could not be found. Try refining your search, or use the navigation above to locate the post.

Raleigh DUI Lawyers

211 E. Six Forks Road
Building C, Suite 106
RaleighNC 27609

Copyright © 2019 The Raleigh DUI Lawyers. All Rights Reserved.