We are putting the final touches on the new edition of the North Carolina Sentencing Handbook – publication date forthcoming! As part of revising and updating the DWI Sentencing portion, three updates stood out to me as warranting some more discussion. First, the legislature has expanded delegated authority for probation officers to include probationers sentenced for impaired driving under G.S. 20-179. Second, the Court of Appeals further clarified the presumption for unsupervised probation and requirements for transferring a probationer from supervised to unsupervised probation. Third, a new mitigating factor was added for voluntary pretrial installation of an ignition interlock device. Read on for more details.
1. Delegated authority. Delegated authority permits a probation officer to impose additional, pre-defined conditions of probation on a probationer without judicial approval. When it was first introduced as part of Structured Sentencing in 1994, a probation officer only had delegated authority if a judge expressly authorized it during sentencing or a subsequent hearing. In 1997, the legislature gave probation officers delegated authority by default in all Structured Sentencing cases. This meant that unless a contrary finding was made during sentencing or a subsequent hearing, probation officers could impose additional conditions. The conditions are enumerated in G.S. 15A-1343.2. There are two sets of conditions: G.S. 15A-1343.2(e) lists seven conditions that may be imposed in cases where the defendant is sentenced to community punishment, and G.S. 15A-1343.2(f) lists eight conditions that may be imposed in cases where the defendant is sentenced to intermediate punishment. Until 2023, delegated authority did not apply in impaired driving matters because it was limited to misdemeanor and felony sentencing under Structured Sentencing.
What it means for impaired driving probation. Effective for offenses committed on or after December 1, 2023, delegated authority applies in impaired driving cases sentenced to supervised probation pursuant to G.S. 20-179. Because impaired driving probation is not divided between community punishment and intermediate punishment, the legislature included one list of conditions in G.S. 20-179(k5). The list is the same as the community punishment subset in 15A-1343.2(e):
- Perform up to 20 hours of community service and pay the fee prescribed by law for this supervision.
- Report to the offender’s probation officer on a frequency to be determined by the officer.
- Submit to substance abuse assessment, monitoring, or treatment.
- Submit to house arrest with electronic monitoring.
- Submit to a period or periods of confinement in a local confinement facility for a total of no more than 6 days per month, imposed in 2-day or 3-day consecutive periods, during any three separate months during the period of probation.
- Submit to a curfew which requires the offender to remain in a specified place for a specified period each day and wear a device that permits electronic monitoring of the offender’s compliance with the condition.
- Participate in an educational or vocational skills development program, including an evidence-based program.
The probation officer may only impose an additional condition from the list, except for condition (5), upon a determination that 1) the defendant has failed to comply with the regular conditions in some way, or 2) if the defendant is considered high risk based on the results of a validated risk assessment. Condition (5) may only be imposed after a violation of one or more probation conditions, and the defendant is entitled to a written violation report, a hearing on the alleged violation with counsel and the opportunity to present and challenge evidence. These provisions also mirror the procedure for imposing additional conditions in community punishment cases under G.S. 15A-1343.2(e). Notably, a number of these conditions, such as performing community service and completing a substance abuse assessment and the recommended education or treatment, are already commonly required in impaired driving cases. By specifically including these conditions in the grant of delegated authority in G.S. 20-179(k5), it appears the legislature is authorizing the additional, or potentially repeated, imposition of like conditions of probation.
2. Transfer from supervised to unsupervised probation. If a person sentenced at a Level 3, 4, or 5 has not been convicted of a DWI within seven years of the date of offense for which they are being sentenced and has obtained a substance abuse assessment and completed the recommended treatment, they must be placed on unsupervised probation. G.S. 20-179(r). A judge may only place such a defendant on supervised probation if they find in their discretion that supervised probation is necessary, include in the record that they have received evidence, and include in the record and the judgment that supervised probation is necessary.
When a judge makes this determination to place a person on supervised probation, they must authorize the probation officer to modify the probation by placing the person on unsupervised probation upon 1) the completion of community service, 2) the payment of any fines, court costs, and fees, or 3) “any combination of these conditions.” G.S. 20-179(r). The Court of Appeals considered this limited list of criteria for transferring probation from supervised to unsupervised probation in State v. Adams, 882 S.E.2d 150 (2022,).
State v. Adams. In December of 2019, Thomas Adams pled guilty to driving while impaired. The court found one aggravating factor, that his blood alcohol content was more than .15 at the time of the offense, and one mitigating factor, that he had a safe driving record. Finding that they balanced each other, the court sentenced Adams at a Level 4 to 120 days imprisonment, suspended for 18 months of supervised probation. The court required Adams to complete 48 hours of community service; pay court costs, fines, and fees; and obtain a substance abuse assessment within 60 days. The court then added that if Adams was in compliance with the terms of probation after 12 months, he could be transferred to unsupervised probation. Adams appealed, arguing the court violated G.S. 20-179(r) by requiring him to remain on supervised probation for at least 12 months before being eligible for transfer to unsupervised probation.
The Court of Appeals agreed with Adams. Looking at the text of G.S. 20-179(r), the Court noted the judge “shall authorize the probation officer to modify the defendant’s probation by placing the defendant on unsupervised probation until the completion” of community service, payment of any fines, court costs, or fees, or a combination of those conditions. The statute does not include conditioning transfer from supervised to unsupervised probation on passing a certain amount of time on supervised probation. The Court therefore found that this condition was outside of the sentencing judge’s authority. The Court found that adding this special condition was an error, and remanded the case for resentencing.
It’s important to note that G.S. 20-179(r) does not apply to every Level 3, 4, or 5 sentence imposed for impaired driving. This presumption for unsupervised probation and mandatory transfer to unsupervised probation upon the completion of limited conditions only applies when the defendant has not been convicted of impaired driving in the prior seven years and has completed a substance abuse assessment and recommended treatment. In Level 3, 4, or 5 sentences imposed on defendants who have not met these conditions, there is no mandatary transfer process from supervised probation to unsupervised. The defendant may be sentenced to supervised probation for the entire term of probation, or for a certain portion, such as the first 12 months.
3. New mitigating factor. There is a new statutory mitigating factor that will be effective for offenses committed on or after December 1, 2025. Enacted by S.L. 2025-71, the new subsection G.S. 20-179(e)(6b) provides that the voluntary pretrial installation and use of an ignition interlock device in certain cases is a mitigating factor.
As a brief reminder, when no grossly aggravating factors are present, an offense sentenced pursuant to G.S. 20-179 must be sentenced at a Level 3, 4, or 5. The sentencing judge must weigh the presence of any aggravating and mitigating factors in determining the sentencing level, and in determining the particular conditions of the sentence. If there are no mitigating factors or aggravating factors, or if the presence of both aggravating and mitigating factors counterbalance each other, the court must sentence the defendant at a Level 4. If there are only aggravating factors, or if the aggravating factors substantially outweigh any mitigating factors, the court must sentence the defendant at a Level 3. If there are only mitigating factors, or if the mitigating factors substantially outweigh any aggravating factors, the court must sentence the defendant at a Level 5. If contested, aggravating factors must be shown beyond a reasonable doubt, and mitigating factors must be shown by the greater weight of the evidence.
There are eligibility limits for the new mitigating factor:
- The offense must not have resulted in the serious injury or death of a person.
- The defendant must have either held a valid driver’s license or a license that had been expired for less than one year.
- The defendant must not have had another unresolved impaired driving charge or conviction within the prior five years.
- The defendant must not have had an alcohol concentration of .15 or more.
Further, the defendant must:
- install the ignition interlock device no later than 45 days after being charged with the underlying offense, for a period of at least 6 months, and
- must only operate the designated motor vehicle with an active, valid driver’s license or a limited driving privilege that is valid in North Carolina without operating the vehicle with an alcohol concentration greater than .02 or otherwise violating the terms of the interlock device.
Defendants that meet these requirements but who may not be able to afford an ignition interlock device are now also included in G.S. 20-179.5 “Affordability of ignition interlock system.” This permits the defendant to apply to an authorized interlock vendor for a waiver of a portion of the costs pursuant to G.S. 20-179.5(b). G.S. 20-179(e)(7) continues to permit sentencing judges to find as a mitigating factor “any other factor that mitigates the seriousness of the offense.” What qualifies for this “catch-all” factor varies depending on the judge and the case. Demonstrating eligibility and compliance with the ignition interlock mitigating factor by a greater weight of the evidence is now another way defendants may be more assured that a judge will find a mitigating factor in their favor.
These updates to the law of DWI Sentencing since 2018 will be included in the forthcoming edition of the North Carolina Sentencing Handbook. As always, feel free to reach out to me with any related questions or comments. I can be reached at elrahal@sog.unc.edu.