For those convicted of a NC DWI at the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge must first determine whether there are any grossly aggravating factors in the case. The grossly aggravating factors are:
(1) A prior conviction for an offense involving DWI if:
a. The dwi conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The DWI 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.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the DWI offense while his driver’s license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).
(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the DWI 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.
The presence of one or more of these grossly aggravating factors will lead to the most severe punishments available to the judge under the law.
If none of the grossly aggravating factors apply, the judge must weigh a list of aggravating and mitigating factors in determining a punishment. The aggravating factors to be weighed are:
(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.
(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(4) Driving by the defendant while his driver’s license was revoked.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.
The judge must also weigh the seriousness of each of the aggravating factors. Similarly, the judge must weigh the mitigating factors that apply in a case, and the judge must weigh the degree of mitigation of each factor in light of the particular circumstances of the case. The factors are:
(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.
(7) Any other factor that mitigates the seriousness of the offense. Except for the factors in subdivisions (4), (6) and (7), the conduct constituting the mitigating factor must occur during the same transaction or occurrence as the impaired driving offense.
These factors determine what category the defendant falls into for sentencing. Each category has maximum and minimum punishments which guide the judge in determining a sentence for the defendant.
The full statute is available at: https://www.ncga.state.nc.us/gascripts/Statutes/StatutesTOC.pl
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