DWI with a Child in the Car

A person charged with a DWI who was driving with a child in the car at the time of the violation faces a significantly more serious punishment than he would have if the child had not been in the car. After a person is convicted of DWI in North Carolina, his sentence is determined based upon the balancing of grossly aggravating factors, aggravating factors, and mitigating factors. North Carolina statute G.S. 20-179(c) states that “[a]t the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case.”

Subdivision (4) of G.S. 20-179(c) goes on to define one of the grossly aggravating factors as:

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.

There are six sentencing levels for dwi offenses, and the top three levels are imposed only when the judge or jury finds one or more grossly aggravating factors. The judge is required to impose a Level One punishment if the grossly aggravating factor in subdivision (4) (driving with a minor in the car) is found or if two other grossly aggravating factors are found. Therefore, any person convicted of DWI who was driving with a minor in the car at the time of the violation will face a Level One punishment at the minimum, regardless of the person’s prior record or the presence of other aggravating or mitigating factors. Under subsection (g), Level One punishment is a fine of up to $4,000 and a term of imprisonment between 30 days and 24 months.  The sentence may be suspended only if the defendant serves 30 days in prison.  The judge may reduce the term served to 10 days if the defendant is subject to an alcohol monitoring system for at least 120 days, as well as goes to substance abuse treatment.

By contrast, a person convicted of DWI with no aggravating or mitigating factors present or with aggravating and mitigating factors that substantially balance each other would receive a Level Four punishment. Under subsection (j), a Level Four punishment is a fine of up to $500 and a term of imprisonment between 24 hours and 60 days. The sentence may be suspended if the defendant serves 48 hours in prison or performs 48 hours of community service.

These provisions have changed quite a bit over the past few years. In 2011, the North Carolina legislature passed Laura’s Law which created the Aggravated Level One punishment. Prior to Laura’s Law, the highest level of punishment was a Level One punishment. The current statute requires the judge to impose an Aggravated Level One punishment if three or more grossly aggravating factors are found. Under subsection (f3), Aggravated Level One Punishment is a fine of up to $10,000 and a term of imprisonment between 12 months and 36 months.  The sentence may be suspended only if the defendant serves 120 days in prison and is subject to an alcohol monitoring system for at least 120 days, as well as goes to substance abuse treatment.

That same year, the legislature passed another law which changed the subsection addressing the grossly aggravating factor of driving with a minor in the car. Previously, this grossly aggravating factor was “[d]riving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.” The new law raised the age to include any child under the age of 18 years and also added to this section people who might be biologically older than 18 years but have a mental development of a child under the age of 18 years, as well as people with a physical disability which keeps them from getting out of a vehicle without assistance.

The change to the law also changed the weight given to this grossly aggravating factor. Under the previous version of the statute, driving with a minor was treated just as any other grossly aggravating factor. A person convicted of DWI who was driving with a minor in the car at the time of the violation would have faced a Level Two punishment at the minimum. Under subsection (h), Level Two punishment is a fine of up to $2,000 and a term of imprisonment between 7 days and 12 months.  The sentence may be suspended if the defendant serves 7 days in prison or is subject to an alcohol monitoring system for at least 90 days.

As stated above, however, the current version of the statute provides that a person convicted of DWI who was driving with a minor in the car at the time receive at least a Level One punishment. The Level One punishment has twice the fine limit and the sentencing limit as the Level Two punishment. Furthermore, a person who receives Level Two punishment can avoid jail time altogether by abstaining from alcohol for a period of 90 days as verified by an alcohol monitoring system, while a person who receives Level One punishment does not have this option.

What about a person convicted of DWI who was driving with two children in the car at the time of the violation - does this count as two separate grossly aggravating factors? While G.S. 20-179(c) specifies that each prior conviction under subdivision (1) is a separate grossly aggravating factor, it does not specify whether driving with multiple minors in the car would create more than one grossly aggravating factor under subdivision (4). One could argue that the lack of specification under subdivision (4) would indicate that multiple minors do not create more than one grossly aggravating factor since the statute explicitly states in subdivision (1) the creation of separate grossly aggravating factors. Furthermore, the statute refers to the subdivision (4) aggravating factor in the singular, stating “[i]f the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies.”

It is possible, however, that driving with a minor in the car and driving with “a person with a physical disability preventing unaided exit from the vehicle” would create two separate aggravating factors because these are two separate categories in subdivision (4). The DWI sentencing factors form provides separate boxes to check for each category in subdivision (4), which acknowledges, but does not resolve, this interpretation.

If you have been charged with DWI, call Rosensteel Fleishman for legal help.