What follows is a brief discussion of some of the issues we run into regularly in our extensive DWI practice. Much of this article discusses the differencebetween aggravating and grossly aggravating factors. For a detailed explanation of these differences see our article Charlotte DWI Sentencing Factors. The consequences of a second DUI DWI in Charlotte are often severe and should be discussed at length with an experienced DWI DUI attorney. Please note that a special set of circumstances applies to those people who are convicted of four DWI’s in a ten year period. This often leads to a felony charge for habitual impaired driving. That is a separate issue and one that requires immediate contact with an competent DWI DUI attorney.
The import of a prior DWI office is based on timing. An offense that falls outside of seven years does not qualify as a grossly aggravating factor which leads to mandatory jail time. The offense date is measured from the conviction date of the older offense to the arrest date of the later offense. For example, if a person is cited seven-and-a-half years ago, but convicted six-and-a-half years before the arrest on the current charge, he would be sentenced with a grossly aggravating factor. Each conviction within seven years is an additional grossly aggravating factor so two prior offenses requires an even more serious sentence.
One grossly aggravating factor results in minimum of seven days active jail time with a maximum of up to a year. Two grossly aggravating factors result in a minimum of thirty days in jail up to two years. Recent legislation has created a more severe sentence if there are three or more grossly aggravating factors or if there is a minor is in the car.
We often encounter a situation where a client also had a suspended license at the time of the offense. Depending on the specific circumstances of the suspension this can also be used as a grossly aggravating factor by the Court in determining the sentence.
There are possible options outside of incarceration. In any case where the client is facing active time for a second or subsequent Charlotte DWI or DUI we counsel the client about the possibility of participating in an in-patient (overnight) treatment program. Under certain circumstances our DWI attorney can move the court to use this time as a substituted for jail
time. This is a highly specific process and anyone who is seeking to substitute treatment time for jail time should review the process with a Charlotte DWI attorney.
The burden of proof remains with the state. As such, like any other grossly aggravating factor a prior conviction must be proven beyond a reasonable doubt. This is especially relevant if the conviction was an out-of-state conviction. This is because the specific statute from the other state becomes an issue. Our Charlotte DUI attorney will explain to you how we can fight an out-of-state conviction.
A second conviction also means that a person is not eligible for a limited driving privilege during the time of driver’s license suspension. If a second DWI occurs within three years of a prior conviction there is a mandatory four year suspension.
All of the consequences discussed are contingent upon a conviction. It is our policy to fight each element of the charge and we will not act like your conviction is a foregone conclusion. The policy at Rosensteel Fleishman is to pursue all avenues to win your Charlotte DUI case. During our initial meeting we will discuss acquittal and how we will approach your case.
Our DWI attorneys are in Charlotte courts every day of the week representing our client’s interests. We thank you for your time and invite you to contact us to discuss your case.
Published by Matthew Fleishman