DUI Penalties in North Carolina
North Carolina imposes a system of penalties that is based on Offense Level and the number of DUI convictions. The levels range from 1-5, with 1 being the most serious offenses receiving the harshest punishment. Even first time offenders can be guilty of a Level 1 offense, and it is possible that they receive jail time of up to 2 years, as well as other penalties. Enhanced penalties for DUI offenses in North Carolina are determined during the sentencing phase of trial after the driver has already been convicted of the offense. NC’s enhanced penalty DUI’s are based on a system of statutory factors, the presence of which may enhance the defendant’s sentence as a result of a conviction.
Enhancing the Sentence
If the prosecutor contends any grossly aggravating or aggravating factors exist, he is required to prove those factors beyond a reasonable doubt. When the defendant contends that mitigating factors are present, he need only show this by the greater weight of evidence. This raises the burden of proof level for the state and makes it easier to for the defense to prove mitigating factors than for the state to prove aggravating factors.
Level One punishment is considered to be the most severe. A judge must impose a Level One punishment if he or she finds that two or more grossly aggravating factors exist but must only impose a Level Two punishment if only one grossly aggravating factor exists. The grossly aggravating factors are, by statute, as follows:
(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c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not yet been held.
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(2) Driving by the defendant at the time of the offense while his driver’s license was revoked due to an impaired driving offense.
(3) Serious injury to another person caused by the defendant’s impaired driving
(4) Defendant had a passenger under the age of 16
If the judge or jury finds that no grossly aggravating factors are present, they must next determine if any aggravating or mitigating factors are present. The presence of these factors largely determines the punishment level that will be imposed on the defendant; however the judge does retain some discretion in the matter. By statute, there are nine aggravating factors, which are as follows:
(1) Gross Impairment (excessive BAC, 0.15% or more)
(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 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 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus.
(9) Any other factor that aggravates the seriousness of the offense.
While the statute technically allows for nine possible aggravating factors, factor number nine actually opens the door for the prosecution to argue that aggravating factors not included in the statute are present in the case. The following is a list of the statutory mitigating factors that may be proved by the defense:
(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and a BAC that did not exceed 0.09%
(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 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 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 Department of Correction.
(7) Any other factor that mitigates the seriousness of the offense.
Much like the aggravating factors, the final mitigating factor would allow the defense to prove any other fact that mitigates, or reduces the seriousness, or the conviction for which the driver is being sentenced.
Penalties Based on Offense Level and Number of Convictions
The following is a list of the possible sentences or penalties that may be imposed by under each offense level in North Carolina. These penalties are in addition to the penalties imposed based upon the defendant’s history of DUI convictions.
Level One – A Level One offense requires a period of incarceration between 30 days and 2 years, which is determined by either the sentencing judge or jury. The defendant may also be fined up to $4,000.
Level Two – A Level Two offense requires a minimum jail term of at least 7 days but not more than 1 year. If the jail term is for more than 7 days, the defendant must serve 7 days but the rest of the jail term may be suspended if appropriate probation is imposed. The defendant may also be fined up to $2,000.
Level Three – A Level Three offense requires a minimum jail term of 3 days. The jail term may not exceed 6 months. Any portion of this sentence may be suspended but the defendant must, as a condition of receiving the suspended sentence, serve 72 hours of jail time or perform 72 hours of community service, or any combination of the two. If the defendant is given probation, the judge must require him to assessment and education or treatment. The driver may also be fined up to $1,000.
Level Four – A Level Four offense requires a minimum jail term of 2 days. The jail term may not exceed 120 days. Any portion of this sentence may be suspended but the defendant must, as a condition of receiving the suspended sentence, serve 48 hours of jail time or perform 48 hours of community service, or any combination of the two. If the defendant is given probation, the judge must require him to assessment and education or treatment. The driver may also be fined up to $500.
Level Five – A Level Five offense requires a minimum jail term of 1 day. The jail term may not exceed 60 days. Any portion of this sentence may be suspended but the defendant must, as a condition of receiving the suspended sentence, serve 24 hours of jail time or perform 24 hours of community service, or any combination of the two. If the defendant is given probation, the judge must require him to assessment and education or treatment. The driver may also be fined up to $200.
The offenses listed above will be in addition to the penalties given based on the number of convictions the defendant has on his or her record. There may be additional conditions placed on some of the penalties listed below. For example, after the term of license revocation is over and a license is restored, there may be requirements placed on the license, such as driving only with a BAC level under 0.04% or only with no alcohol in the driver’s system. Every impaired driving offense, including the first offense, will require alcohol assessment and possibly treatment.
First Offense – A first offense for DUI is generally a misdemeanor charge, and the driver a mandatory one year license suspension is required to be imposed. Generally, first offenses will result in punishment within Levels Three through Five. However, with grossly aggravating factors, a first offense may rise to Level One or Level Two, meaning that a driver could receive jail time of up to two years for a first offense.
Second Offense – A second DUI is generally a misdemeanor charge. If the previous DUI was within three years of the second conviction, it will be mandatory to suspend the defendant’s license for a period of 4 years. In order to have the license restored, the person will be required to have an ignition interlock device installed in his or her vehicle(s). While second offenses are generally punished within Levels Three through Five, the driver could easily be subject to punishment within Levels One or Two.
Third Offense – In the event of a third DUI conviction, and the other convictions were within the previous ten years, the offense will be a Class F Felony under the Habitual Impaired Driving statute. The defendant must be sentenced to a minimum of 12 months of incarceration. If the last previous DUI was within 5 years of the current conviction, the defendant will have his or her license permanently revoked. If the license is not permanently revoked, the defendant will be required to install an ignition interlock device for 7 years upon restoration of the license. The Habitual Impaired Driving statute also makes it possible that the defendant will be required to forfeit his or her vehicle.
Fourth Offense – Punishment for a fourth DUI conviction is the same as that proscribed for a third offense, with one possible difference. If the defendant’s three previous convictions were within seven years of the current conviction, the defendant will have his or her license permanently revoked.
It is important to note that the punishments listed above will not be given in all situations. These are merely what is required for convictions of these types and do not represent the maximum punishment available. Also, if the impaired driving results in death or serious injury of another, North Carolina statute (GS § 20-141.4) allows for charges up to a Class D felony. However, punishment under this statute is different than punishment for impaired driving charges and is not discussed here.
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