Enhanced Penalty BAC for DUI in North Carolina
North Carolina does allow for sentence enhancements for excessive BAC levels in some circumstances. A blood-alcohol concentration of .15% or more within a relevant time after driving is considered an aggravating factor under NC Gen. Stat. § 20-179. The statute also states that the results of a chemical analysis are sufficient to prove the person’s alcohol concentration. However, this testing must be done within a relevant amount of time after the alleged offense. Waiting too long to administer a test will render the test inadmissible. Under the North Carolina statutes, an excessive BAC level should be weighed (though, in application, may not be) the same as any other aggravating factor found by the court.
When no grossly aggravating factors are present, the judge must weigh all aggravating and mitigating factors (both listed in § 20-179). If the judge finds that the aggravating factor(s) substantially outweigh any mitigating factor(s), he must note the factors and the defendant is subject to the Level Three punishment, and then impose punishment within that level. If the judge finds that the aggravating factor(s) are substantially counterbalanced by mitigating factors, he must note the factors found in the judgment and impose a sentence within the limits of those punishments available for Level Four. Finally, if the judge finds that the mitigating factors substantially outweigh any aggravating factors, he must note the factors found and the defendant will be subject to penalties for the lowest level, Level Five, and the judge must impose a sentence within that level.
Although North Carolina has five punishment levels, ranging from Level One (most severe) to Level Five (most lenient), a conviction for driving with a BAC level of .15% or more will, at most, subject a defendant to a punishment under Level Three. If any grossly aggravating factors also apply to the case, the defendant will be subject to sentencing under Level One or Level Two, essentially making the excessive BAC level irrelevant in determining the severity of the punishment.
This system of sentencing, while specifically articulating all available aggravating and mitigating factors that can be taken into account by the judge, allows the judge discretion in balancing those factors and proscribing a sentence. Due to this fact, cases with substantially similar facts and circumstances may lead to varying penalties depending on the judge who presides over the case. This may lead to attempts by both the prosecution and defense counsel to maneuver through the proceedings to bring the case in front of a judge they believe will favor their position.
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