DWI is one of the most complicated areas of law to practice. It requires a mastery of DMV regulations, caselaw, as well as scientific principles and technology. You will need an experienced lawyer who is fully-versed in all aspects of DWI, who can fully investigate all these aspects, and who can build effective defenses based on the details of your situation.
Remember, just because you have been charged with a DWI does not mean that you will be convicted. As an accused in our criminal justice system, you are presumed innocent until proven guilty. It is the state’s burden to prove every element of the charge beyond a reasonable doubt. In preparing your defense, we will explore all viable options you have to fight your charge. Some of the different issues we will explore include whether the state can prove you were driving, whether the officer had a valid reason to pull you over, whether there was probable cause that you were impaired, whether the field sobriety tests were administered properly, among other things.
Driving While Impaired in North Carolina is defined as:
Driving with a blood alcohol concentration (BAC) measuring .08 percent or higher;
Driving while your mental and physical faculties are appreciably impaired;
Driving with any amount of a Schedule I controlled substance in your system.
SENTENCING:
In North Carolina, there are six (6) different sentencing levels for a DWI—the least serious being a level 5 and the most serious being an Aggravated Level 1. Please see our resources section for a quick reference guide to DWI sentencing.
What level you will be for sentencing depends on what factors are present for your case. There are three (3) types of factors that the judge will consider in determining your level for sentencing: mitigating factors, aggravating factors, and grossly aggravating factors.
Mitigating factors are things about your case that make it less serious. Aggravating factors are things about your case that make it more serious. Grossly aggravating factors are very serious things about your case that require mandatory jail time.
However, even if your case carries mandatory jail time, you can often reduce or in some cases completely offset your jail time with in-patient treatment or a verified period of sobriety using the continuous alcohol monitoring bracelet (SCRAM). For further information about these providers, please see our resource section.
Here is a list of some of the most common factors for sentencing:
GROSSLY AGGRAVATING FACTORS:
PRIOR DWI CONVICTION WITHIN 7 YEARS
LICENSE REVOKED FOR DWI AT TIME OF OFFENSE
SERIOUS INJURY TO ANOTHER PERSON CAUSED BY IMPAIRED DRIVING AT TIME OF OFFENSE
PASSENGER UNDER AGE OF 18 AT TIME OF OFFENSE
AGGRAVATING FACTORS:
GROSS IMPAIRMENT
BLOOD ALCOHOL CONTENT OF 0.15 OR MORE
ESPECIALLY RECKLESS/DANGEROUS DRIVING
NEGLIGENT DRIVING THAT LED TO AN ACCIDENT
DRVING WHILE LICENSE IS REVOKED (NOT IMPAIRED)
UNSAFE DRIVING HISTORY OR PRIOR DWI BUT OUTSIDE 7 YEARS
CONVICTION OF SPEEDING 30+MPH OVER SPEED LIMIT
PASSING STOPPED SCHOOL BUS
ANY OTHER FACTOR THAT AGGRAVATES THE OFFENSE
MITIGATING FACTORS:
SLIGHT IMPAIRMENT SOELY FROM ALCOHOL AND BLOOD ALCOHOL CONTENT DID NOT EXCEED 0.09
SAFE AND LAWFUL DRIVING, OTHER THAN IMPAIRMENT
SAFE DRIVING RECORD
OBTAINING A SUBSTANCE ABUSE ASSESSMENT AND ENROLLING IN TREATMENT
COMPLETING 60 DAYS OF CONTINUOUS ABSTINENCE FROM ALCOHOL (SCRAM DEVICE)
ANY OTHER FACTOR THAT MITIGATES THE OFFENSE (BEING POLITE AND COOPERATIVE, BEING GAINFULLY EMPLOYED OR IN SCHOOL)
Here is a list of the different levels and their maximum punishments and fines:
(For DWI Offenses Committed On or After 12/01/2011)
MINIMUM 24 HOURS (COMMUNITY SERVICE /JAIL) – MAXIMUM 60 DAYS (JAIL) / FINE UP TO $200
SUBSTANCE ABUSE ASSESSMENT:
One of the most important things you can do to prepare your defense for a DWI is to obtain a substance abuse assessment and to comply with recommended treatment. This is true regardless of whether you are going to plead guilty or go to trial. Please note, if you plead guilty or are found guilty at trial, you must complete this requirement in order to get your license reinstated. The assessment also expires, so make sure that when you obtain it, you enroll in treatment, otherwise, you will be required to pay for a whole new assessment and start the process all over again. Here is a link to a list of accepted substance abuse assessment providers in your area.
LIMITED DRIVING PRIVILEGE:
A limited driving privilege is an order from a judge, allowing you to drive in a limited capacity during your revocation period. Your driving privilege will be limited in terms of geographic scope (where you can drive in NC), time (when you can drive), and purpose (why you can drive). While driving with a limited driving privilege, you cannot have any alcohol in your system whatsoever and you must carry a copy of your limited driving privilege with you at all times.
Failure to adhere to these restrictions could result in you being charged with Driving While License Revoked (Impaired). Please see below for more information on this.
The standard hours of operation that you will be permitted to drive are Monday – Friday, 6AM to 8PM. This can include for work, school, or maintenance of the household (buying groceries, picking up your children from school, etc.), among other reasons. If you need to drive outside those standard hours, you must provide us with a letter from your employer confirming the days and times that you work. It is also advised that you carry a current copy of your work schedule to provide an officer if you were to be pulled over.
There are essentially two (2) kinds of limited driving privileges for DWI’s: a pre-trial limited driving privilege and a post-trial limited driving privilege.
PRE-TRIAL LIMITED DRIVING PRIVILEGE:
When you are arrested for DWI and have provided a blood alcohol content sample of .08 or higher, the state will commonly issue you a 30-day civil revocation. If you are otherwise eligible, you can petition the court for a pre-trial limited driving privilege after serving out a ten (10) day waiting period for your 30-day civil revocation. This privilege is only good for the remaining twenty (20) days of your 30-day civil revocation.
To petition the court for a pre-trial limited driving privilege, you must provide us with the following documentation:
Copy of Substance Abuse Assessment (see our resources section for a list of providers in your area);
DL-123 form (proof of auto-insurance);
Current Driving Record
Letter from employer confirming work days and hours;
$100 money order or certified check for filing fee.
Assuming you were issued a 30-day civil revocation, on the 30th day of your revocation, you will need to go to the clerk of court’s office in the county where you were charged, pay the clerk $100 for your civil revocation fee, and sign an acknowledgment. Your license will then be returned to you. Out of an abundance of caution, you should call the DMV’s automated system (919-715-7000) to verify that your license is active before you drive. If the status of your license is “suspended,” you cannot drive.
POST TRIAL LIMITED DRIVING PRIVILEGE:
Having a conviction for a DWI will result in a mandatory suspension of your NC driving privilege. However, if you’re eligible, we can petition the court for a limited driving privilege, so you can drive during your revocation period. For most first-time offenders sentenced as a level 3, 4, or 5, your revocation period will likely be one (1) year.
Please note, one of the many requirements for a limited driving privilege is that you must be sentenced as a level 3, 4, or 5. If you are sentenced as a level 2 or lower, you are not eligible for a limited driving privilege or any kind and cannot drive during your revocation period. The only exception to this would be if you were to have a DMV hearing for a conditional reinstatement. This is only possible after a waiting period without driving.
To petition the court for a post-trial limited driving privilege, you must provide us with the following documentation:
Copy of Substance Abuse Assessment (see our resources section for a list of providers in your area);
DL-123 form (proof of auto-insurance);
Current Driving Record;
Letter from employer confirming work days and hours;
$100 money order or certified check for filing fee.
Following your revocation period, you must pay a reinstatement fee to the DMV to get your license back. Please see our FAQ and resources page for further instructions.
DRIVING WHILE LICENSE REVOKED (IMPAIRED):
If you unlawfully drive during your revocation period, you could be charged with Driving While License Revoked (Impaired), a class 1 misdemeanor that carries a maximum punishment of 120 days in jail. Not only could you be placed on supervised probation or go to jail, but a conviction for Driving While License Revoked (Impaired) will further suspend your license so you’ll have to wait even longer to get it back. By statute, it also carries a 195% increase in insurance over a three (3) year period. It might even result in a probation violation of your suspended sentence for your DWI charge, if applicable.
INSURANCE INCREASE:
The statutes and regulations provide that a DWI carries 12 NC driver’s license points and 12 NC insurance points—a 340% increase in insurance rates over a three (3) year period. For a full evaluation of your insurance rates, you must speak with an adjustor for your policy.