Since this Raleigh DWI Attorney Blog deals with all facets of a North Carolina DWI Defense, in addition to the greater area of North Carolina Criminal Defense, it only makes sense that we review the factors which the court considers when setting a DWI Defendant's sentence.
In a previous post I reviewed North Carolina DWI Sentence Structure this article will be dedicated to explaining the three factors which the Judge considers for the purposes of setting a DWI Defendant's sentence within North Carolina DWI Sentencing Structure.
To start with, this blog will discuss Aggravating Factors and Mitigating Factors. These two factors are used when a Judge is considering setting a Defendant's sentence at a level 3, 4 or 5. That's not to say that these 'factors' can't be considered when setting a sentence at level 2, 1, or aggravated level 1, but these are set statutorily for the Judge to use for the purpose of setting sentences within level 3, 4, and 5. For these three levels, if a Defendant's aggravating factors greatly outweigh their mitigating factors, they are set at a level 3. If these two levels are even, the Defendant is set at a level 4. If the Defendant's mitigating factors greatly outweigh the aggravating factors, they are set at a level 5.
Aggravating Factors include: conviction of a prior DWI more than 7 years before the instant offense, two or more prior convictions for 3-point driving offenses within the preceding 5 years before the offense, gross impairment (.15 or above), especially reckless or dangerous driving, negligent driving leading to a reportable accident, passing a stopped school bus, conviction of speeding to elude apprehension, conviction of speeding at least 30 miles over the legal limit, or any other factor that aggravates the seriousness of the offense.
Mitigating factors include: voluntary submission to a Substance Abuse Assessment and participation in the recommended treatment, slight impairment (.09 or less), safe and lawful driving at the time of the offense, impairment which was caused by lawfully prescribed drugs within prescribed dosage, a statutorily safe driving record (no offense for which at least 4 points are assigned within 5 years of the date of the offense), or any other factor that mitigates the seriousness of the offense.
The other factor which is used by the court is referred to as Grossly Aggravating Factors. If any of these factors apply, then the Defendant is facing a DWI Sentence of Levels 2, 1 or Aggravated Level 1 (for stops from December 1, 2011 on). If the Defendant only has one Grossly Aggravating Factor, they will be sentenced at a level 2, if there are 2 Grossly aggravating Factors, the Defendant will be sentenced to a Level 1. If there are three or more Grossly Aggravating Factors and the Defendant was stopped prior to December 1, 2011, they will be sentenced to Level 1, but if the Driver was stopped December 1 or there after, they will be sentenced at the Aggravated Level 1.
Grossly Aggravating Factors include: a Driving While License Revoked charge at the time of the current charge and where the license was suspended for a prior DWI, serious injury to another caused by the Defendant's impaired driving, a prior DWI conviction within the preceding 7 years, and having a child under 16 years of age in the vehicle at the time of the offense (as of December 1, the age is moved to passengers under 18 years old).
For a review of each North Carolina DWI Sentence Level, click on North Carolina DWI Sentence Structure.
Monday, December 5, 2011
Friday, December 2, 2011
Laura's Law Takes Affect | A Review of North Carolina's Sentencing Structure
Since this is a blog about North Carolina DWI Defense, written by a Raleigh DWI Attorney it would only make sense that I review North Carolina's Sentencing Structure. This is additionally important because, as of yesterday, North Carolina DWI Sentencing Structure has changed. I have previously written about Laura’s Law which not only adds a new, more serious sentencing level to North Carolina DWI Law, but also made a change to one of the factors which are presented by the North Carolina Assistant District Attorney, and will impact which level a Defendant will be sentenced.
Though this post will not address the three factors which determine where a Defendant will fall in North Carolina's DWI Sentencing Structure (a future post will cover them), quickly they are referred to as Mitigating Factors, Aggravating Factors, and Grossly aggravating Factors.
As of yesterday,December 1, 2011, North Carolina now has six sentencing levels for a Defendant convicted of Driving While Intoxicated. The breakdown for each is as follows:
Level 5 carries with it a fine up to $200, imprisonment for 24 hours to 60 days. If the sentence is suspended, the Judge must impose either 24 hours in jail or 24 hours of community service (or a combination of both).
- In order to be sentenced at a Level 5, the Defendant's Mitigating Factors must outweigh their Aggravating Factors and cannot have any Grossly Aggravating Factors.
Level 4 carries with it a fine up to $500, imprisonment for 48 hours to 120 days. If the sentence is suspended, the Judge must impose either 48 hours in jail or 48 hours of community service (or a combination of both).
- In order to be sentenced at a Level 4, the Defendant's Mitigating Factors must equal their Aggravating Factors and cannot have any Grossly Aggravating Factors.
Level 3 carries with it a fine up to $1,000, imprisonment for 72 hours to 6 months. If the sentence is suspended, the Judge must impose either 72 hours in jail or 72 hours of community service (or a combination of both).
- In order to be sentenced at a Level 3, the Defendant's Mitigating Factors must be outweighed by their Aggravating Factors and cannot have any Grossly Aggravating Factors.
Level 2 carries with it a fine up to $2,000, imprisonment for 7 days to 12 months. If the sentence is suspended, the judge must impose an active term of at least 7 days.
- In order to be sentenced at a level 2, the Defendant must have no more than 1 Grossly Aggravating Factors.
Level 1 carries with it a fine up to $4,000, imprisonment for 30 days to 24 months. If the sentence is suspended, the judge must impose an active term of at least 30 days.
- In order to be sentenced at a Level 1, the Defendant must have 2 Grossly Aggravating Factors.
Aggravated Level 1 carries with it a fine up to $10,000, imprisonment for 12 months to 36 months. Additionally, if the sentence is suspended, the Judge must impose an active term of at least 120 days and will not be eligible for early release from any jail sentence sooner then 4 months before the maximum range that the Defendant was sentenced. During those 4 months from release, the Defendant must not consume any alcohol and is required to wear an alcohol monitoring devise, paid for by the Defendant.
As you can see, any conviction of of a DWI in North Carolina, carries with it serious ramifications, those in the upper ranges can face jail time and serious fines. This is why a DWI should never be handled pro se (Defending yourself), rather you should hire a qualified DWI Defense Attorney to handle your case.
Though this post will not address the three factors which determine where a Defendant will fall in North Carolina's DWI Sentencing Structure (a future post will cover them), quickly they are referred to as Mitigating Factors, Aggravating Factors, and Grossly aggravating Factors.
As of yesterday,December 1, 2011, North Carolina now has six sentencing levels for a Defendant convicted of Driving While Intoxicated. The breakdown for each is as follows:
Level 5 carries with it a fine up to $200, imprisonment for 24 hours to 60 days. If the sentence is suspended, the Judge must impose either 24 hours in jail or 24 hours of community service (or a combination of both).
- In order to be sentenced at a Level 5, the Defendant's Mitigating Factors must outweigh their Aggravating Factors and cannot have any Grossly Aggravating Factors.
Level 4 carries with it a fine up to $500, imprisonment for 48 hours to 120 days. If the sentence is suspended, the Judge must impose either 48 hours in jail or 48 hours of community service (or a combination of both).
- In order to be sentenced at a Level 4, the Defendant's Mitigating Factors must equal their Aggravating Factors and cannot have any Grossly Aggravating Factors.
Level 3 carries with it a fine up to $1,000, imprisonment for 72 hours to 6 months. If the sentence is suspended, the Judge must impose either 72 hours in jail or 72 hours of community service (or a combination of both).
- In order to be sentenced at a Level 3, the Defendant's Mitigating Factors must be outweighed by their Aggravating Factors and cannot have any Grossly Aggravating Factors.
Level 2 carries with it a fine up to $2,000, imprisonment for 7 days to 12 months. If the sentence is suspended, the judge must impose an active term of at least 7 days.
- In order to be sentenced at a level 2, the Defendant must have no more than 1 Grossly Aggravating Factors.
Level 1 carries with it a fine up to $4,000, imprisonment for 30 days to 24 months. If the sentence is suspended, the judge must impose an active term of at least 30 days.
- In order to be sentenced at a Level 1, the Defendant must have 2 Grossly Aggravating Factors.
Aggravated Level 1 carries with it a fine up to $10,000, imprisonment for 12 months to 36 months. Additionally, if the sentence is suspended, the Judge must impose an active term of at least 120 days and will not be eligible for early release from any jail sentence sooner then 4 months before the maximum range that the Defendant was sentenced. During those 4 months from release, the Defendant must not consume any alcohol and is required to wear an alcohol monitoring devise, paid for by the Defendant.
As you can see, any conviction of of a DWI in North Carolina, carries with it serious ramifications, those in the upper ranges can face jail time and serious fines. This is why a DWI should never be handled pro se (Defending yourself), rather you should hire a qualified DWI Defense Attorney to handle your case.
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