No Good Time to Be Had for Level A1 DWI Inmates

(Editor’s note: Jamie Markham is a co-author of this post.)

Level A1 DWI.  The General Assembly created Aggravated Level One sentencing for misdemeanor impaired driving in 2011. See S.L. 2011-191 (enacting G.S. 20-179(f3)). Level A1 sentences require a term of imprisonment that includes a minimum term of 12 months and a maximum term of not more than 36 months. Unlike defendants sentenced for lower levels of impaired driving, a defendant sentenced under Level A1 is not eligible for parole. Such defendants are instead subject to a term of post-release supervision to commence four months before the end of the maximum imposed term of imprisonment. They also are subject to the general provision in G.S. 20-179(p)(2) that requires a defendant to “serve the mandatory minimum period of imprisonment.”

Back when the law was passed, we wrote (here and here) about the difficulties associated with applying each of these sentencing requirements to Level A1 sentences while at the same time awarding good time credit pursuant to Division of Adult Correction policy. For sentences of certain durations, we noted that it would be a challenge to square the early release for post-release supervision with the law’s mandatory minimum period of incarceration—especially if good time credit would effectively cut the sentence in half. Given these ambiguities, we weren’t sure how DAC would administer the sentences.

Today, more than 200 inmates are serving Level A1 sentences. We thought we’d share what we know about how those sentences are playing out in practice.

Good Time Credit. Good time credit is not being applied to reduce Level A1 sentences. That’s a departure from the rule that generally applies to misdemeanor DWI sentences, which may be reduced for good behavior pursuant to regulations adopted by the Secretary of Public Safety. G.S. 148-13(b).

The regulations, which were last amended before the enactment of Aggravated Level One sentencing, provide that inmates “convicted of Driving While Impaired” are awarded good time “at the rate of one day deducted for each day served in custody for good behavior and/or without an infraction of inmate conducts [sic] rules.” Though the regulations do not specify their applicability only to certain punishment levels, the Division of Adult Correction has determined that they do not apply to Level A1 sentences.

The absence of this credit is significant. A defendant sentenced to 24 months imprisonment for a Level A1 DWI will be released to post-release supervision after 20 months of imprisonment. In contrast, a defendant sentenced to 24 months imprisonment for a Level One DWI who receives good time credit for each day served will be released outright after serving 12 months.

Moreover, in many circumstances, a defendant may serve a longer term of imprisonment for a Level A1 DWI than for habitual impaired driving, a Class F felony. A defendant who receives the maximum term for a Level A1 DWI will be released to post-release supervision after serving 32 months of imprisonment. In contrast, a Prior Record Level II habitual DWI defendant sentenced at the high end of the presumptive range will be released after 23 months at the latest.

Post-release supervision. In earlier posts we said we were unsure what DAC would do if the four-month early release for post-release supervision for Level A1 DWI sentences caused a defendant to dip below the 12-month mandatory minimum sentence of imprisonment for the crime.   It turns out DAC will give full effect to the early release. So, for example, a Level A1 defendant who receives a 12 month sentence will be released onto post-release supervision after serving 8 months of imprisonment. The person will be on post-release supervision for four months with the remaining four months of imprisonment hanging over his or her head.