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DWI Sentencing Look at Idlewild Accidents

The Charlotte Observer reports that the driver responsible for multiple car accidents on Idelwild Road on Tuesday evening was subsequently arrested for DWI.  During that incident, the driver rear-ended one car, turned around and then hit two more cars, and ended the affair with a head-on crash with a fourth car which caused the fourth car to flip and land on its roof.  The driver of the fourth car and the allegedly impaired driver were taken to the hospital with serious injuries.  In the event that the allegedly impaired driver is found guilty of DWI (and putting aside other criminal charges that might be brought against him), how will the details of the crashes affect his sentencing?

First, we look at the impaired driving statute G.S. 20-138.1(d):

Impaired driving as defined in this section is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge shall hold a sentencing hearing and impose punishment in accordance with G.S. 20-179.

So we turn to G.S. 20-179(a), which directs that the sentencing hearing for DWI is separate from the guilt hearing.  In determining the sentence for DWI, the judge or jury is to weigh aggravating and mitigating factors.  A defendant can admit to guilt and then have a sentencing hearing to determine the existence of aggravating or mitigating factors.

Aggravating factors are listed under subsection (d) of the statute.  They 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. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

(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(4)        Driving by the defendant while his driver's license was revoked.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.

Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.

Mitigating factors are listed under subsection (e) of the statute.  They 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.

(6a)      Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.

(7)        Any other factor that mitigates the seriousness of the offense.

Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.

If aggravating factors outweigh the mitigating factors, the defendant is subject to Level Three Punishment.  Subsection (i) of the statute states that Level Three Punishment is a fine of up to $1000 and a term of imprisonment between 72 hours and 6 months.  The term of imprisonment may be suspended if the defendant serves a sentence of at least 72 hours or performs at least 72 hours of community service.

If the aggravating factors are equal to the mitigating factors, the defendant is subject to Level Four Punishment.  Subsection (j) of the statute states that Level Four Punishment is a fine of up to $500 and a term of imprisonment between 48 hours and 120 days.  The term of imprisonment may be suspended if the defendant serves a sentence of at least 48 hours or performs at least 48 hours of community service.

If the mitigating factors outweigh the aggravating factors, the defendant is subject to Level Five Punishment.  Subsection (k) of the statute states that Level Five Punishment is a fine of up to $200 and a term of imprisonment between 24 hours and 60 days.  The term of imprisonment may be suspended if the defendant serves a sentence of at least 24 hours or performs at least 24 hours of community service.

However, there are not only aggravating factors and mitigating factors.  Subsection (c) of the statute also lists grossly aggravating factors.  They are:

(1)        A prior conviction for an offense involving impaired driving if:

a.         The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.         The 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; or

c.         The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

(2)        Driving by the defendant at the time of the 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 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.

Subsection (c) states that if three or more grossly aggravating factors apply, then the judge must impose the Aggravated Level One Punishment.  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.

If there are two grossly aggravating factors found or if the grossly aggravating factors in subdivision (4) of the subsection applies, then the judge must impose Level One Punishment.  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.

If only one of the grossly aggravating factors is found (other than the grossly aggravating factor in subdivision (4)) is found, then the judge must impose Level Two Punishment.  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 only if the defendant serves 7 days in prison or is subject to an alcohol monitoring system for at least 90 days, as well as goes to substance abuse treatment.

Okay, that was a lot of information.  How does it apply to Tuesday accidents?  The most relevant provision in this case is the grossly aggravating factor listed in G.S. 20-179(c)(3): “Serious injury to another person caused by the defendant's impaired driving at the time of the offense.”  It seems likely that if the allegedly impaired driver had prior DWI convictions, a revoked license or a minor in his car, the news reports would contain this information.  So we’ll assume that there is only one grossly aggravating factor found.  This would mean that if found guilty of DWI, he would receive the Level Two Punishment – a fine of up to $2,000 and a term of imprisonment between 7 days and 12 months.

If you have been charged with a DWI, it is important to contact a lawyer as soon as possible; visit www.rflaw.net to get legal help.

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