The Basics
Impaired Driving, also called DUI/DWI or drunk driving, is a serious misdemeanor offense. In fact, many lawyers specialize in only DUI law because it is such a unique subdivision of criminal defense. Finding a criminal defense attorney that can adequately represent you and defend your rights is particularly crucial. Why?
DUI defense is its own world. It is a charge where the political landscape forces the District Attorney to have a "no drop" policy. In other words, you either plead to DUI or you have a trial. There is no reduction of the charge nor will a DA dismiss the charge even if the facts show that your rights were violated or that you may not be guilty. They will try the case and force the Judge to throw it out in order to save political face (the DA is an elected position after all).
This post is aimed at providing the reader with a basic introduction to DUI law - the process, the sentencing scheme, driving privileges and the like...
Most people accused of impaired driving were pulled over for a traffic violation, like speeding or crossing the center line. When the officer approaches the vehicle he may "smell the odor of alcohol", see that you have red/glassy eyes, hear slurred speech or see other factors that may lead the officer to expect that you are a drunk driving. Ordinarily the officer will ask the driver to exit the vehicle and then perform field sobriety tests (note: you do not have to perform these tests and can refuse). The officer may also ask you to blow into a portable breath test (PBT). (note: you do not have to blow into a PBT). If you fail the tests or blow a .08 or higher (or refuse to take the tests - which can be admissible against you) then you will be arrested for DUI and taken down to the police station for the official breath test. If you refuse to blow at the station then your license will be revoked for 12 months. The police may also force a blood draw if you refuse as well. You have certain rights down at the station, like the right to have a witness watch you blow but they will only have 30 minutes to get there. You should never make any statements to the police without a lawyer, other than basic questions such as your name.
The DUI Law
A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90‑89, or its metabolites in his blood or urine.
Sentencing
The sentencing scheme for a DUI conviction is different than other crimes. The punishment is first determined by the level of DUI you are by determining grossly aggravating factors, aggravating factors and mitigating factors. There are six levels of offenders and I will start with the least severe:
Level Five: This is the least serious DUI offender. To be found as a level 5 offender, the judge must find that the mitigating factors outweigh the aggravating factors. The punishment is a $200 fine, at least 24 hours in jail (max 60 days) and probation. The offender can choose to do 24 hours of community service instead of an active jail sentence.
Level Four: To be found as a level 4 offender, the judge must find that the mitigating factors equal the aggravating factors. The punishment is a $500 fine, at least 48 hours in jail (max 120 days) and probation. The offender can choose to do 48 hours of community service instead of an active jail sentence.
Level Three: To be found as a level 3 offender, the judge must find that the aggravating factors outweigh the mitigating factors. The punishment is a $1,000 fine, at least 72 hours in jail (max 6 months) and probation. The offender can choose to do 72 hours of community service instead of an active jail sentence.
Level Two: To be found as a level 2 offender, the judge/jury must find one grossly aggravating factor. The fine is $2,000 and a minimum jail sentence of 7 days and maximum sentence of 12 months. There is no community service option. You must go to jail for a minimum of 7 days.
Level One: Two grossly aggravating factors. The fine is $4,000 and at least 30 days in jail with a maximum sentence of 24 months. No community service option.
Aggravated Level One: Three grossly aggravating factors. This is the most severe punishment for any misdemeanor and is more than most felony punishments. The fine is $10,000 and a minimum jail term of 12 months with a max of 36 months.
With these sentences also run other consequences such as having to submit to a substance abuse assessment and comply with any treatment and driver license suspensions for at least 12 months or longer and substantial increases in insurance rates.
What are grossly aggravating factors, aggravating factors and mitigating factors used to determine the offense level above?
Grossly Aggravating Factors
A prior conviction for DUI within 7 years of the date of the offense.
Has been convicted of a DUI after this offense but before sentencing for this offense.
Driving while license was revoked due to a DUI.
Serious injury to another person caused by the driving under the influence.
Driving while a child under 18 is in the car or person with mental development of a child under 18 or person with physical disability preventing exit from vehicle.
Aggravating Factors
Gross Impairment of faculties.
BAC of .15 or higher.
Reckless driving.
Dangerous driving.
Property damage of $1,000 or more.
Accident causing personal injury.
Driving while license revoked (not due to DUI).
Two prior convictions of a motor vehicle offense not involving DUI within 5 years and those convictions were each worth 3 points or subject the driver to revocation.
DUI more than 7 years ago.
Conviction for speeding while fleeing or attempting to elude apprehension.
Speeding of at least over 30 mph.
Passing a stopped school bus.
Or the catchall: additional factors that aggravate the seriousness of the offense.
Mitigating Factors
Slight impairment (.08 or .09).
Slight impairment from alcohol only and no chemical test was available.
Defendant's driving was lawful except for the DUI.
Defendant has a safe driving record. (no convictions for traffic tickets worth 4 points within 5 years)
Impairment was due to a lawfully prescribed drug for a medical condition.
Voluntary submission to a mental health facility for assessment and complied with any treatment.
Defendant completed a substance abuse assessment, complied with recommendations and maintained 60 days of abstinence proven by a continuous alcohol monitoring system.
Catchall: additional factors mitigating the seriousness of the offense.
For the actual sentencing worksheet that the Judge fills out see here.
Driving Privileges
If you have been convicted of DUI and found to be a level 3, 4 or 5 offender, then you may seek limited driving privileges from the Judge that sentenced you. Driving privileges are not guaranteed but are in the discretion of the Judge. Driving privileges can allow you to drive even on a revoked license so that you may go to work, school, maintenance of the household (grocery shopping), etc.
Conclusion
DWIs are tough. If you are cited for drunk driving, please consult an experienced criminal defense lawyer. While this blog was meant to provide an overview of the law, it is no substitute for having a lawyer review your case. Please don't go it alone. Criminal lawyer Kurt Willems would be happy to speak with you about your case.
