Two-Timing on the Weekends is Allowed  . . . and Other Rules for DWI Sentences

Spring is upon us, and today’s post addresses the top five DWI sentencing questions of the season. 

1. Defendant is sentenced on the same day for two DWIs. May the sentences run concurrently?

 

Yes. Contrary to popular belief, there is no requirement that sentences for misdemeanor impaired driving in violation of G.S. 20-138.1 run consecutively to one another. Indeed, if the judgment does not specify how the sentences are to be served, DWI sentences, like Structured Sentencing sentences, run concurrently.  G.S. 15A-1354(a).

Misdemeanor impaired driving convictions may not, however, be consolidated with one another for judgment. G.S. 20-179(f2). Thus, a separate judgment must be entered for each DWI conviction.  A misdemeanor DWI conviction may be consolidated with a conviction for an offense that carries greater punishment.  Id.

2. Defendant is sentenced for DWI. How long may his period of probation be?

 

Five years. And no special findings are required to impose a sentence of that length. G.S. 15A-1342(a). This rule differs from the length-of-probation rules that apply to Structured Sentencing offenses, and which require special findings to impose longer or shorter periods of punishment.  Cf. 15A-1343.2(d).  No particular minimum period of probation is required, but probation imposed for a DWI must be long enough to allow the defendant to satisfy the minimum requirements for a suspended DWI sentence.

3. Defendant is sentenced for Level A1 DWI. His sentence is suspended on condition that he serve 120 days imprisonment and that he abstain from alcohol for 120 days as monitored by a continuous alcohol monitoring system. May the defendant serve the 120 days on weekends?

 

Yes. A period of imprisonment imposed as a condition of “special probation” for any criminal offense may be served in nonconsecutive periods, such as on weekends. G.S. 15A-1351(a).  While all special probation confinement for Structured Sentencing convictions must be completed within two years, there is no such limitation on special probation for DWI sentences. DWI defendants must, however, serve this time in 48-hour increments—a requirement that does not apply to Structured Sentencing sentences.  G.S. 20-179(s).

An active term of imprisonment for misdemeanor DWI also may be served in nonconsecutive periods, but must, like periods of special probation, be served in 48-hour increments.  G.S. 20-179(s).

4. Where are DWI sentences served?

 

In a jail or treatment facility. Beginning with sentences imposed January 1, 2015, all active sentences for misdemeanor DWI are served through the Statewide Misdemeanant Confinement Program. G.S. 15A-1352(f). Thus, defendants serving active terms of imprisonment will be imprisoned in a county jail, though it may not be the jail in the county of conviction. Imprisonment imposed as a condition of special probation for DWI must be served in a local confinement facility or a treatment facility designated by the judge. G.S. 15A-1351(a). G.S. 20-179(k1) permits a judge to order that a term of imprisonment imposed as a condition of special probation be served as an inpatient in a facility operated or licensed by the State for the treatment of alcoholism or substance abuse where the defendant has been accepted for admission or commitment as an inpatient.

5. Does good time apply?

 

Yes . . . and no.  DWI defendants sentenced to active terms of imprisonment are awarded good time at the rate of one day deducted from their term of imprisonment for each day served without a violation of inmate rules. G.S. 148-13(b); Department of Public Safety, Prisons, Policy and Procedure, Chapter B, Section .0100. This credit is awarded regardless of where the sentence is served, G.S. 148-13(e), however good time may not reduce a defendant’s DWI sentence below the statutory mandatory minimum for his or her level of DWI, see G.S. 20-179(p). DWI defendants serving imprisonment as a condition of special probation receive no good time credit, see G.S. 148-13(f). Finally, no good time is awarded to reduce the term of imprisonment for a defendant serving a Level A1 DWI sentence, as discussed here.