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.
Thursday, November 17, 2011
What Not to Say in the Courtroom
This morning I was in Criminal Court in Durham, North Carolina and observed something that I have seen many times and decided to write an blog about it. I heard a criminal defendant, represented by a Criminal Defense Attorney speak directly to the Judge when he was addressing counsel. And before that, I observed a young law student who was in court on a misdemeanor larceny first-time offenders program try and talk his way out of having his status in the program revoked and face the original larceny charge. As a Raleigh Criminal Lawyer, Raleigh Traffic Attorney and a Raleigh DWI Attorney practicing in Durham, North Carolina and Raleigh, North Carolina, and formerly an Assistant District Attorney in Harnett County, North Carolina I have seen many Defendants speak up when they shouldn't have. Below, this article will stress why it is important to limit what you say and/or hire an attorney to speak for you.
The first incident that I saw today, where the Defendant spoke directly to the Judge was met immediately by an admonishment by the Judge. The Judge explained that she was represented by a quality Durham Criminal Attorney from the Public Defender's Office and should let her attorney do all the speaking for her. Afterwards, I observed the Public Defender express the same to the Defendant. She explained to the Defendant to not speak in court unless directly spoken to. I know this may sound belittling, and somewhat parent/childish, but it's true. Attorneys go through three years of law school, incur HUGE amounts of student loans, and ultimately face the bar exam to learn the law and learn how to be a lawyer. One of the many skill sets that attorneys learn is what should be said in court and what should not. If you have an attorney representing you in court, whether it's a Criminal Case, DWI Case, or a Traffic Case, let the Attorney do all the speaking for you, unless the agree that it is okay for you to speak up or you are called to testify.
This brings me to my second point. If you are facing a Criminal Charge, DWI Charge, or a Traffic Charge you should always try and find a way to have an attorney at your side to represent you. Whether you request the court to appoint you an attorney, you ask an attorney who is your friend to help, or you hire a private criminal attorney, you need their expertise in making it through the case. Now, I'm not saying that there have not been successful Pro Se Defendants (that is the term used for Defendants who represent themselves). There have been successful cases, as an Assistant District Attorney, I observed a Defendant get a not guilty verdict in an assault case brought by the Defendant's Dad. But, if you are playing the percentages, you have a MUCH greater chance of being successful, and not making a mistake, if you have an attorney at your side. The young man today who was representing himself was saved when a local attorney stepped in and assisted him, for free. See, not all attorneys are blood-suckers!
Friday, November 4, 2011
North Carolina DWI: The Role of the Assistant District Attorney
Today's Raleigh DWI Attorney blog is going to deal with the roll of the Assistant District Attorneys in the prosecution of Criminal Defendants. Though today's Raleigh DWI Attorney blog deals in the area of Driving While Intoxicated, this blog applies to all criminal prosecution; including traffic.
First, don't think this blog will be used to bash those who are Assistant District Attorneys. Though I am currently a DWI Lawyer Raleigh and DWI Lawyer Durham, I was actually sworn in as an Assistant District Attorney before and prosecuted cases for the State of North Carolina. Many fine attorneys have before, and are currently, quality Prosecutors. I can tell you from experience, the job is hard, tedious, and often thankless. No, today's blog will be used to advice you as to the roll they play in the prosecution of your case (hint: it's not normally to assist you).
First, a brief explanation of the U.S. Justice System as it applies to courts. Our trials are what are known as "adversarial proceedings." Basically, both sides do their best for the side they represent, and through that effort, the truth is suppose to come out. Basically, the Assistant District Attorney does their best to represent the State by prosecuting criminal defendants to the best of their ability. Defendant, either by themselves or with the assistance of counsel, present their best defense. Many people have discussed the flaws inherent in our system, unfortunately this is the system we have to work within.
So, the Assistant District Attorneys are there to prosecute your case. If you are your attorney's client, then the Assistant District Attorney's client would be the State. So, when an Assistant District Attorney is dealing with the facts, as well as dealing with Defendants, their main goal is to serve the needs of the State by prosecuting those cases. For that reason, the Assistant District Attorney IS NOT normally working in your best interest. Now, as a caveat, I will acknowledge that certainly there are those Prosecutors who recognize a mistake by the State, and will work to overcome it. If the evidence is poor, the arrest is flawed, or the case is meritless, the Assistant District Attorney should do what is right and dismiss the case. Unfortunately, though the Prosecutor may do the right thing, you cannot count on it when it comes to the defense of your case.
First, the Defendant should never acknowledge anything to the Assistant District Attorney with regards to the facts of the case. Again, they are working for the State, so admitting anything can AND WILL come up in trial or at least in their decision in how to handle your case.
Second, the Assistant District Attorney CAN NOT and WILL NOT provide you with legal advice, so don't ask. In fact, it would violate Ethical Rules of the North Carolina Bar if they were to advice you. As mentioned before, they represent the State, they are the adverse party, they cannot advice you as to how to handle your case, whether to accept a plea, or what could happen if you go to trial. I can recount many-a-times when I was a Prosecutor, where I knew what the Defendant should do, but couldn't tell them. This is why it is ALWAYS a good idea to speak with a Cary Criminal Attorney, Apex Criminal Attorney, Raleigh Criminal Attorney or Durham Criminal Attorney about your case. If you are considering representing yourself, consider the fact that most attorney's fees are reasonable when compared to the potential consequences that a Defendant could face. Though no outcome should ever be guaranteed by a Criminal Defense Attorney, it's always a good idea to hedge your bets.
First, don't think this blog will be used to bash those who are Assistant District Attorneys. Though I am currently a DWI Lawyer Raleigh and DWI Lawyer Durham, I was actually sworn in as an Assistant District Attorney before and prosecuted cases for the State of North Carolina. Many fine attorneys have before, and are currently, quality Prosecutors. I can tell you from experience, the job is hard, tedious, and often thankless. No, today's blog will be used to advice you as to the roll they play in the prosecution of your case (hint: it's not normally to assist you).
First, a brief explanation of the U.S. Justice System as it applies to courts. Our trials are what are known as "adversarial proceedings." Basically, both sides do their best for the side they represent, and through that effort, the truth is suppose to come out. Basically, the Assistant District Attorney does their best to represent the State by prosecuting criminal defendants to the best of their ability. Defendant, either by themselves or with the assistance of counsel, present their best defense. Many people have discussed the flaws inherent in our system, unfortunately this is the system we have to work within.
So, the Assistant District Attorneys are there to prosecute your case. If you are your attorney's client, then the Assistant District Attorney's client would be the State. So, when an Assistant District Attorney is dealing with the facts, as well as dealing with Defendants, their main goal is to serve the needs of the State by prosecuting those cases. For that reason, the Assistant District Attorney IS NOT normally working in your best interest. Now, as a caveat, I will acknowledge that certainly there are those Prosecutors who recognize a mistake by the State, and will work to overcome it. If the evidence is poor, the arrest is flawed, or the case is meritless, the Assistant District Attorney should do what is right and dismiss the case. Unfortunately, though the Prosecutor may do the right thing, you cannot count on it when it comes to the defense of your case.
First, the Defendant should never acknowledge anything to the Assistant District Attorney with regards to the facts of the case. Again, they are working for the State, so admitting anything can AND WILL come up in trial or at least in their decision in how to handle your case.
Second, the Assistant District Attorney CAN NOT and WILL NOT provide you with legal advice, so don't ask. In fact, it would violate Ethical Rules of the North Carolina Bar if they were to advice you. As mentioned before, they represent the State, they are the adverse party, they cannot advice you as to how to handle your case, whether to accept a plea, or what could happen if you go to trial. I can recount many-a-times when I was a Prosecutor, where I knew what the Defendant should do, but couldn't tell them. This is why it is ALWAYS a good idea to speak with a Cary Criminal Attorney, Apex Criminal Attorney, Raleigh Criminal Attorney or Durham Criminal Attorney about your case. If you are considering representing yourself, consider the fact that most attorney's fees are reasonable when compared to the potential consequences that a Defendant could face. Though no outcome should ever be guaranteed by a Criminal Defense Attorney, it's always a good idea to hedge your bets.
Monday, October 31, 2011
North Carolina Limited Driving Privileges| What is Needed for the Petition
In today's DWI Blog, I will be focusing on North Carolina's Limited Driving Privilege. Though a Limited Driving Privilege applies to more situation then a DWI, today's blog will only focus on it's function in the DWI world.
First, the Petition is just that, a petition. The Privilege must be agreed to by a District Court Judge, there are no guarantees that you will be given a privilege. Second, the Privilege is normally only for Monday through Friday, 6:00 A.M. until 8:00 P.M. If you need to drive outside of those time for school or work, it can be requested with additional documentation.
There are two areas of a DWI case where the Limited Driving Privilege applies, first is after being charged with a DWI, you will have your license suspended for 30 days. Most likely, the Police Officer took your license. In those situations the Privilege can not be granted for the first 10 days, therefore if granted, the Privilege will only be for the remaining 20 days. If convicted of a DWI or if you plead guilty to a DWI, you will have your license suspended for 12 months. Depending on how high your blood/alcohol level was at the time of your arrest will dictate when you can petition the court for a Limited Driving Privilege for those 12 months. The petition requires several things before a Judge will consider it. Below, I have listed those things that are necessary.
1. A certified 7-year driving record from the DMV
2. A Limited Driving Privilege Petition (Form AOC-CVR-9)
3. Fully completed Limited Driving Privileges (Form AOC-CVR-10 or AOC-CVR-11) (3 copies of each)
4. Valid proof of driving insurance (called a 'DL-123 form')
5. Proof of Substance Abuse Assessment
6. Letter from an employer or school if requesting more time outside of the standard hours.
7. $100 cost for the privilege.
This process can seem a bit complicated, but it can be done. If you feel overwhelmed, speak with a local Durham DWI Attorney or Raleigh DWI Attorney or a DWI Attorney in your area for assistance. Some may be willing to assist you without handling your DWI case.
First, the Petition is just that, a petition. The Privilege must be agreed to by a District Court Judge, there are no guarantees that you will be given a privilege. Second, the Privilege is normally only for Monday through Friday, 6:00 A.M. until 8:00 P.M. If you need to drive outside of those time for school or work, it can be requested with additional documentation.
There are two areas of a DWI case where the Limited Driving Privilege applies, first is after being charged with a DWI, you will have your license suspended for 30 days. Most likely, the Police Officer took your license. In those situations the Privilege can not be granted for the first 10 days, therefore if granted, the Privilege will only be for the remaining 20 days. If convicted of a DWI or if you plead guilty to a DWI, you will have your license suspended for 12 months. Depending on how high your blood/alcohol level was at the time of your arrest will dictate when you can petition the court for a Limited Driving Privilege for those 12 months. The petition requires several things before a Judge will consider it. Below, I have listed those things that are necessary.
1. A certified 7-year driving record from the DMV
2. A Limited Driving Privilege Petition (Form AOC-CVR-9)
3. Fully completed Limited Driving Privileges (Form AOC-CVR-10 or AOC-CVR-11) (3 copies of each)
4. Valid proof of driving insurance (called a 'DL-123 form')
5. Proof of Substance Abuse Assessment
6. Letter from an employer or school if requesting more time outside of the standard hours.
7. $100 cost for the privilege.
This process can seem a bit complicated, but it can be done. If you feel overwhelmed, speak with a local Durham DWI Attorney or Raleigh DWI Attorney or a DWI Attorney in your area for assistance. Some may be willing to assist you without handling your DWI case.
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