What is a DWI?
In simple terms, a person is guilty of Driving While Impaired if they (a) operate (b) a vehicle (c) on a highway, street, or public vehicular area (d) while under the influence of an impairing substance or with an alcohol to blood concentration of 0.08% or more at any relevant time after driving. N.C.G.S.20-138.1
What does it take to be convicted of DWI?
In order to convict, the state must prove beyond a reasonable doubt, each of the four following elements.
While the terms themselves may sound self explanatory, make sure that before you enter a courtroom charged with DWI that your Durham DWI lawyer fully understand that nature of each element and what the State will need to show to convict you.
1. Operation – What does it mean to operate a vehicle?
The legal term operation means much more than a vehicle in motion. Suppose you are behind the wheel of a car and the engine is running but you haven’t even put the car in gear. That, under North Carolina law, is operation.
2. Vehicle – Aren’t DWIs just for cars?
Under North Carolina Law, it is possible to be charged and convicted of DWI on a boat, scooter, lawnmower, or even a bicycle!
3. Highway Street or PVA – What is a Public Vehicular Area?
Some motor vehicle laws apply only to state maintained streets or highways, but DWI law covers just about every square foot of public space there is. You can get a DWI for driving through an empty parking lot.
4. Impairment – Does it matter if I wasn’t Drunk?
Impairment is the most often the issue on which a DWI will hinge. It’s interesting to note that there are two ways that the state can prove this element.
1. First, they can offer testimony that the defendant was appreciably impaired. They use things like strong odor of alcohol, unsteady on their feet, red glossy eyes, slurred speech, and the like to bolster their opinions of impairment. More to the point are the NHTSA (National Highway Traffic Safety Administration) Standardized Field Sobriety Tests. These tests include the walk and turn, the one leg stand, and the HGN (Horizontal Gaze Nystagmus). These tests are often the most important part of a DWI trial and it is essential that your Durham DWI attorney understand the way these tests are administered.
2. The popular way to satisfy this element is with the use of the Intoxalizer 5000. This is the “breathalyzer” machine that the officer asks defendants to blow into down at the station. This machine is spits out a number for each blow which measures the Defendant’s BrAC (Breath Alcohol Content). If the blow is higher than .08, in many cases the State’s work is done. A competent attorney however, may be able to find ways to suppress this number from being admitted into evidence. Even when a motion to suppress is unsuccessful for one reason or another, the Intoxalizer 5000 is susceptible to error, despite what the State’s experts may tell you.
What happens if I get convicted?
Aside from the loss of one’s driver’s license which accompanies every Durham DWI, the punishment for DWI can range from a fine and some community service to two years in prison depending on the facts of the case and on the defendant’s prior record.
There are three kinds of factors considered by the judge before he or she imposes a sentence:
Grossly Aggravating Factors
These mandate jail time. One grossly aggravating factor in a case dictates a Level 2 punishment. Two or more grossly aggravating factors dictate Level 1 punishment. Grossly Aggravating Factors include the following:
1. A prior conviction for DWI within the past 7 years (the past 7 years measured from the date of prior conviction to the date of offense).
2. A DWI conviction which occurred after the offense date but before or while the current DWI is being sentenced;
3. The DWI occurred while the Defendant’s license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
4. A child under the age of 16 was in the vehicle at the time of the DWI.
5. The driving caused an accident involving serious injury to another person.
These factors can be (but are not required to be) used by the judge to enhance a sentencing level.
1. Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.16 or more within a relevant time after the driving.
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 (for a non DWI related offense).
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 ten years before the date of the offense for which the defendant is being sentenced.
6. Conviction under N.C.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.
These factors are offered by the defendant and can be (but aren’t required to be) used by the judge to mitigate a sentencing level:
1. The Defendant has voluntarily submitted his/herself to an alcohol or drug treatment center for an assessment of potential substance abuse problems.
2. A statutorily safe driving record for the previous five years.
3. Safe and otherwise lawful driving at the time of the offense.
4. A low BAC reading from the Intoxalizer 5000 (.08 or .09 results are considered low).
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. Any other factor that mitigates the seriousness of the offense.
The presumptive punishment for a DWI is Level 4 punishment. One grossly aggravating factor mandates Level 2 punishment. Two or more aggravating factors mandate level 1 punishment. If no grossly aggravating factors exist in a case, the judge weighs all aggravating and mitigating factors to decide between levels 3, 4, and 5. If the mitigating factors substantially outweigh the aggravating factors, then level 5 punishment is appropriate. Conversely, if the aggravating factors outweigh the mitigating factors in a case, level 3 punishment is appropriate.
Levels of Punishment for a DWI
Punishable by a fine up to $200 and a minimum jail sentence of 24 hours and a maximum of 60 days. A judge can suspend the sentence but upon completion that the driver spend 24 hours in jail or performs 24 hours of community service.
Punishable by a fine up to $500 and a minimum jail sentence of 48 hours and a maximum jail sentence of 120 days. A judge can suspend the sentence but upon completion that the driver spend 48 hours in jail or perform 48 hours of community service.
Punishable by a fine up to $1,000 and a minimum jail sentence of 72 hours and maximum of six months. A judge can suspend the sentence only upon completion that the driver spend at least 72 hours in jail or perform 72 hours of community service.
Punishable by a fine up to $2,000 and a minimum jail sentence of seven days and a maximum of one year. A judge CANNOT suspend the minimum sentence.
Punishable by a fine up to $4,000 and a minimum jail sentence of 30 days and a maximum of two years. A judge CANNOT suspend the minimum sentence.
What happens after sentencing?
Defendants who are convicted of DWI (regardless of the level of punishment) lose their driver’s license. These defendants must complete a substance abuse assessment and comply with any recommended treatment as a condition for having their drivers license restored at the end of the revocation period.
During the revocation period, defendants convicted under Levels 3, 4, or 5 may receive a limited driving privilege provided certain conditions are met.