The Basics of DWI Law in North Carolina

The Basics of DWI Law in North Carolina

In North Carolina, a person commits the offense of impaired driving (DWI) when he or she —

1. drives
2. a vehicle as defined in the statutes (excluding a horse)
3. on a highway, street or publicly vehicular area (i.e., a parking lot)
4. (a) while under the influence of an impairing substance, or (b) with an alcohol concentration of 0.08 or more at any relevant time after the driving,

Proving DWI

The offense of driving while impaired may be proved in one of two ways:

  1. By showing that the driver’s physical or mental faculties, or both, have been appreciably impaired by an impairing substance. An impairing substance means alcohol, a controlled substance, and any other drug or psychoactive substance capable of impairing a person’s physical or mental faculties or any combination of the substances. An impairing substance also includes substances that are neither alcohol nor drugs, if the substance is capable of impairing the person’s faculties. An example of such a substance is the vapor in certain types of glue. The fact that the drug used to cause the impairment is a prescription drug lawfully taken is not a defense, but it can be grounds for a mitigated punishment. Appreciable impairment simply means cable of being perceived, recognized, noticed or apparent. In North Carolina the amount of an impairing substance consumed is not relevant as it may be “a spoon or a quart”. One need not be drunk to be “under the influence” in North Carolina.
  2. By showing that the driver’s alcohol concentration is 0.08 or more. To convict under the alcohol concentration prong of the statute, the level of impairment is not relevant. An outwardly sober person commits the crime if his or her alcohol concentration exceeds 0.08. It is illegal in North Carolina for a driver under the age of 21 to drive while consuming alcohol or have any level of alcohol in their system.

After being charged with driving while impaired, a driver’s license is immediately revoked for 30 days. After 10 days the driver may be eligible for a pre-trial limited driving privilege. The pre-trial limited driving privilege basically allows a person who has been charged with driving while impaired to drive from 6:00 a.m. to 8:00 p.m. Monday through Friday for work related or educational purposes and for maintenance of the household. After the 30 day period has run, the driver can go to the Clerk of Superior Court’s Office, pay a fee and obtain their regular driver’s license which they keep until they are convicted. Upon conviction of the driving while impaired charge the driver may be eligible for another limited driving privilege which is effective for one year. A judge may allow a limited driving privilege if punishment levels 3, 4 or 5 are imposed and other criteria are met. If the driver had a blood concentration of 0.15 or higher, the driver will be required to have an ignition interlock system installed on the vehicle in order to obtain a limited driving privilege.

DWI Conviction and Punishment

There are five levels of punishment for driving while impaired offenses, ranging from Level 1, the most serious, to Level 5, the least serious. To determine the proper level of punishment, the sentencing Judge determines whether or not there are any grossly aggravating factors, aggravating factors, and mitigating factors present. For example, Level 1 is for drivers who have had one or more convictions for driving while impaired in the last seven (7) years, or who are driving while a child less than 16 years of age in the car. Level 5 is the least serious punishment and is usually given to first time offenders.

Sentencing of Impaired Drivers

LEVEL 1: A person subject to Level 1 punishment may be fined up to $4,000 and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended but only if a condition of special probation is imposed to require the person to serve a term of imprisonment of at least 30 days. The person must also obtain a substance abuse assessment and the education or treatment required for the restoration of a drivers license.

LEVEL 2: A person subject to Level 2 punishment may be fined up to $2,000 and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 7 days and a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the person to serve a term of imprisonment of at least 7 days. The person must obtain a substance abuse assessment and the education or treatment required for the restoration of a drivers license.

LEVEL 3: A person subject to Level 3 punishment may be fined up to $1,000 and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 72 hours and a maximum term of not more than 6 months. However, the active sentence may be suspended upon the conditions that the person (1) be imprisoned for a term of at least 72 hours as a condition of special probation; or (2) perform community service for a term of at least 72 hours; or (3) or any combination of these conditions. The person must obtain a substance abuse assessment and the education or treatment required for the restoration of a drivers license.

LEVEL 4: A person subject to Level 4 punishment may be fined up to $500 and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 48 hours and a maximum term of not more than 120 days. The term of imprisonment may be suspended upon the conditions that the person (1) be imprisoned for a term of 48 hours as a condition of special probation; or (2) perform community service for a term of 48 hours; or (3) any combination of these conditions. The person must obtain a substance abuse assessment and the education or treatment required for the restoration of a drivers license.

LEVEL 5: A person subject to Level 5 punishment may be fined up to $200 and be sentenced to a term of imprisonment that includes a minimum term of not less than 24 hours and a maximum term of not more than 60 days. The term of imprisonment may be suspended upon the conditions that the person (1) be imprisoned for a term of 24 hours as a condition of special probation; or (2) perform community service for a term of 24 hours; or (3) any combination of these conditions. The person shall obtain a substance abuse assessment and the education or treatment required for the restoration of a driver’s license.

North Carolina driving while impaired laws are some of the toughest in the nation. The penalties can be severe even for a first time offender. Penalties for a DWI conviction include: potential jail sentence, heavy fines, a criminal record, and a significant increase in insurance premiums. If you are charged with driving while impaired it is crucial that you immediately contact an attorney to discuss your situation.

This is general information about driving while impaired charges in North Carolina and is not intended to be a substitute for legal services as it relates to a particular situation. Contact our office today to discuss how your particular facts relate to the law.