DWI sentencing

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To Prove Aggravating Factors for DWI in Superior Court, State Must Provide Notice

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One person convicted of misdemeanor impaired driving may be placed on probation and ordered to complete 24 hours of community service. Another may receive an active sentence of three years’ imprisonment. The severity of the sentence depends largely on the presence of aggravating factors, which must be proved by the State.

When a misdemeanor impaired driving conviction entered in district court is appealed for trial de novo in superior court, the State must notify the defendant no later than ten days before trial that it intends to prove one or more aggravating factors. G.S. 20-179(a1)(1). If the State fails to provide that notice, the factors may not be used by the superior court to determine the defendant’s sentence. The court of appeals recently affirmed in State v. Hughes, ___ N.C. App. ___ (April 16, 2019), that there is no exception to this rule for aggravating factors that were found by the district court below.

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Jail Credit in DWI Cases

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Last week I got drawn into a discussion about a North Carolina local government official convicted of DWI. The question was whether he was getting “special treatment” when his 60-day sentences were cut in half to 30 days. As most readers of this blog know, there’s nothing special about that: most active DWI sentences (except for aggravated level one) are effectively cut in half by Good Time, pursuant to N.C. Department of Public Safety administrative policy. Today’s post considers a related wrinkle: when a DWI defendant has jail credit, should that credit be applied before or after the sentence is “cut in half”?

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Driving While Impaired with Children in the Car

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When you can’t find what you’re looking for in North Carolina, you may have to extend your search out of state. Case in point: I’ve just discovered an opinion from the Minnesota Court of Appeals that answers the elusive question of how many aggravating factors apply if a person drives while impaired with more than one child in the car. And unlike some things you can only find in another state–like major league baseball and pot-laced gummy bears–you can bring this one home to the Old North State.

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Hurry Up and Have that DWI Expunged

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If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast.  Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws.

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You Get What You Get and You Don’t Throw a Fit

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My daughter is awfully fond of this expression (when applied to one of her brothers, of course). Turns out it also is apropos for this week’s court of appeals decision in State v. Shaw. Facts. The defendant in Shaw pled guilty to misdemeanor DWI in superior court. The trial court found one grossly aggravating factor, … Read more

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Sentencing the Worst Kind of DWI

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Most impaired drivers arrive at their destinations without harming themselves or anyone else.  And few such drivers are actually stopped by police.  That may explain why eight percent of people nationwide who were over 16 years old reported riding in a vehicle with a driver they thought may have consumed too much alcohol to drive … Read more

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Convicted of DWI?  Go Directly to Jail.

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The General Assembly just made it a whole lot easier to determine whether a defendant imprisoned for a misdemeanor DWI conviction will serve his or her sentence in jail or prison.  Defendants sentenced to imprisonment for misdemeanor impaired driving on or after January 1, 2015 will spend that time in a local confinement facility—a jail—rather … Read more

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Top 3 Questions About Level A1 DWI Sentences

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The most serious level of misdemeanor DWI is Aggravated Level One, which I generally refer to as Level A1.  A defendant convicted of driving while impaired is subject to sentencing at Level A1 if three or more grossly aggravating factors apply.  G.S. 20-179(c). Typically, defendants sentenced at this level are repeat offenders, though it is … Read more

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Aggravating Factors in Felony Speeding to Elude Statute Are Elements for Purposes of Double Jeopardy

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The North Carolina Court of Appeals in State v. Mulder, 233 N.C. App. 82 (2014), held that punishing a defendant for felony speeding to elude based upon the aggravating factors of speeding and reckless driving while also punishing him separately for those same misdemeanor traffic offenses violated double jeopardy. Facts. The facts in Mulder are disturbing. … Read more