| What is a DWI? | | | | 1. Gross impairment of the defendant's faculties while |
| In simple terms, a person is guilty of Driving While | | | | driving or an alcohol concentration of 0.16 or more |
| Impaired if they (a) operate (b) a vehicle (c) on a | | | | within a relevant time after the driving. |
| highway, street, or public vehicular area (d) while | | | | 2. Especially reckless or dangerous driving. |
| under the influence of an impairing substance or with | | | | 3. Negligent driving that led to a reportable accident. |
| an alcohol to blood concentration of 0.08% or more | | | | 4. Driving by the defendant while his driver's license |
| at any relevant time after driving. N.C.G.S.20-138.1 | | | | was revoked (for a non DWI related offense). |
| What does it take to be convicted of DWI? | | | | 5. Two or more prior convictions of a motor vehicle |
| In order to convict, the state must prove beyond a | | | | offense not involving impaired driving for which at |
| reasonable doubt, each of the four following | | | | least three points are assigned under G.S. 20-16 or |
| elements. | | | | for which the convicted person's license is subject to |
| While the terms themselves may sound self | | | | revocation, if the convictions occurred within five |
| explanatory, make sure that before you enter a | | | | years of the date of the offense for which the |
| courtroom charged with DWI that your Durham DWI | | | | defendant is being sentenced, or one or more prior |
| lawyer fully understand that nature of each element | | | | convictions of an offense involving impaired driving |
| and what the State will need to show to convict you. | | | | that occurred more than ten years before the date |
| 1. Operation - What does it mean to operate a | | | | of the offense for which the defendant is being |
| vehicle? | | | | sentenced. |
| The legal term operation means much more than a | | | | 6. Conviction under N.C.G.S. 20-141.5 of speeding by |
| vehicle in motion. Suppose you are behind the wheel | | | | the defendant while fleeing or attempting to elude |
| of a car and the engine is running but you haven't | | | | apprehension. |
| even put the car in gear. That, under North Carolina | | | | 7. Conviction under G.S. 20-141 of speeding by the |
| law, is operation. | | | | defendant by at least 30 miles per hour over the |
| 2. Vehicle - Aren't DWIs just for cars? | | | | legal limit. |
| Under North Carolina Law, it is possible to be | | | | 8. Passing a stopped school bus in violation of G.S. |
| charged and convicted of DWI on a boat, scooter, | | | | 20-217. |
| lawnmower, or even a bicycle! | | | | 9. Any other factor that aggravates the seriousness |
| 3. Highway Street or PVA - What is a Public Vehicular | | | | of the offense. |
| Area? | | | | Mitigating Factors |
| Some motor vehicle laws apply only to state | | | | These factors are offered by the defendant and can |
| maintained streets or highways, but DWI law covers | | | | be (but aren't required to be) used by the judge to |
| just about every square foot of public space there is. | | | | mitigate a sentencing level: |
| You can get a DWI for driving through an empty | | | | 1. The Defendant has voluntarily submitted his/herself |
| parking lot. | | | | to an alcohol or drug treatment center for an |
| 4. Impairment - Does it matter if I wasn't Drunk? | | | | assessment of potential substance abuse problems. |
| Impairment is the most often the issue on which a | | | | 2. A statutorily safe driving record for the previous |
| DWI will hinge. It's interesting to note that there are | | | | five years. |
| two ways that the state can prove this element. | | | | 3. Safe and otherwise lawful driving at the time of |
| 1. First, they can offer testimony that the defendant | | | | the offense. |
| was appreciably impaired. They use things like strong | | | | 4. A low BAC reading from the Intoxalizer 5000 (.08 |
| odor of alcohol, unsteady on their feet, red glossy | | | | or .09 results are considered low). |
| eyes, slurred speech, and the like to bolster their | | | | 5. Impairment of the defendant's faculties caused |
| opinions of impairment. More to the point are the | | | | primarily by a lawfully prescribed drug for an existing |
| NHTSA (National Highway Traffic Safety | | | | medical condition, and the amount of the drug taken |
| Administration) Standardized Field Sobriety Tests. | | | | was within the prescribed dosage. |
| These tests include the walk and turn, the one leg | | | | 6. Any other factor that mitigates the seriousness of |
| stand, and the HGN (Horizontal Gaze Nystagmus). | | | | the offense. |
| These tests are often the most important part of a | | | | The presumptive punishment for a DWI is Level 4 |
| DWI trial and it is essential that your Durham DWI | | | | punishment. One grossly aggravating factor mandates |
| attorney understand the way these tests are | | | | Level 2 punishment. Two or more aggravating |
| administered. | | | | factors mandate level 1 punishment. If no grossly |
| 2. The popular way to satisfy this element is with the | | | | aggravating factors exist in a case, the judge weighs |
| use of the Intoxalizer 5000. This is the "breathalyzer" | | | | all aggravating and mitigating factors to decide |
| machine that the officer asks defendants to blow | | | | between levels 3, 4, and 5. If the mitigating factors |
| into down at the station. This machine is spits out a | | | | substantially outweigh the aggravating factors, then |
| number for each blow which measures the | | | | level 5 punishment is appropriate. Conversely, if the |
| Defendant's BrAC (Breath Alcohol Content). If the | | | | aggravating factors outweigh the mitigating factors in |
| blow is higher than .08, in many cases the State's | | | | a case, level 3 punishment is appropriate. |
| work is done. A competent attorney however, may | | | | Levels of Punishment for a DWI |
| be able to find ways to suppress this number from | | | | Level 5: |
| being admitted into evidence. Even when a motion to | | | | Punishable by a fine up to $200 and a minimum jail |
| suppress is unsuccessful for one reason or another, | | | | sentence of 24 hours and a maximum of 60 days. A |
| the Intoxalizer 5000 is susceptible to error, despite | | | | judge can suspend the sentence but upon completion |
| what the State's experts may tell you. | | | | that the driver spend 24 hours in jail or performs 24 |
| What happens if I get convicted? | | | | hours of community service. |
| Aside from the loss of one's driver's license which | | | | Level 4: |
| accompanies every Durham DWI, the punishment for | | | | Punishable by a fine up to $500 and a minimum jail |
| DWI can range from a fine and some community | | | | sentence of 48 hours and a maximum jail sentence |
| service to two years in prison depending on the | | | | of 120 days. A judge can suspend the sentence but |
| facts of the case and on the defendant's prior | | | | upon completion that the driver spend 48 hours in jail |
| record. | | | | or perform 48 hours of community service. |
| There are three kinds of factors considered by the | | | | Level 3: |
| judge before he or she imposes a sentence: | | | | Punishable by a fine up to $1,000 and a minimum jail |
| Grossly Aggravating Factors | | | | sentence of 72 hours and maximum of six months. A |
| These mandate jail time. One grossly aggravating | | | | judge can suspend the sentence only upon |
| factor in a case dictates a Level 2 punishment. Two | | | | completion that the driver spend at least 72 hours in |
| or more grossly aggravating factors dictate Level 1 | | | | jail or perform 72 hours of community service. |
| punishment. Grossly Aggravating Factors include the | | | | Level 2: |
| following: | | | | Punishable by a fine up to $2,000 and a minimum jail |
| 1. A prior conviction for DWI within the past 7 years | | | | sentence of seven days and a maximum of one |
| (the past 7 years measured from the date of prior | | | | year. A judge CANNOT suspend the minimum |
| conviction to the date of offense). | | | | sentence. |
| 2. A DWI conviction which occurred after the | | | | Level 1: |
| offense date but before or while the current DWI is | | | | Punishable by a fine up to $4,000 and a minimum jail |
| being sentenced; | | | | sentence of 30 days and a maximum of two years. |
| 3. The DWI occurred while the Defendant's license | | | | A judge CANNOT suspend the minimum sentence. |
| was revoked under G.S. 20-28, and the revocation | | | | What happens after sentencing? |
| was an impaired driving revocation under G.S. | | | | Defendants who are convicted of DWI (regardless |
| 20-28.2(a). | | | | of the level of punishment) lose their driver's license. |
| 4. A child under the age of 16 was in the vehicle at | | | | These defendants must complete a substance abuse |
| the time of the DWI. | | | | assessment and comply with any recommended |
| 5. The driving caused an accident involving serious | | | | treatment as a condition for having their drivers |
| injury to another person. | | | | license restored at the end of the revocation period. |
| Aggravating Factors | | | | During the revocation period, defendants convicted |
| These factors can be (but are not required to be) | | | | under Levels 3, 4, or 5 may receive a limited driving |
| used by the judge to enhance a sentencing level. | | | | privilege provided certain conditions are met. |