Duncan A. McMillan

DWI/Traffic Cases

General DWI Information

If you are charged with the offense of Driving While Impaired and submit to a chemical test of your breath, which results in an alcohol concentration of 0.08 or more, your license is suspended immediately for a period of thirty days. Although the thirty day civil revocation is mandatory, you may be eligible for a Pretrial Limited Driving Privilege for the balance of that thirty day period once you have waited the first ten days of that suspension period.

In order to obtain a Pretrial Limited Driving Privilege you must meet the following eligibility requirements and provide the indicated information:

1. You must either have held a valid driver’s license or a license that had been expired for less than one year as of the date of the offense.
2. You must not have an unresolved pending charge involving impaired driving except the charge for which the license is currently revoked.
3. At least ten days of the thirty day revocation period has expired.
4. You must obtain a substance abuse assessment from a licensed substance abuse provider, and must register for and agree to participate in any recommended training or treatment program. Verification of the assessment must be provided to the court with the Limited Driving Privilege.
5. In addition to the above mentioned requirements, you must file a Petition with the court, and on the date following the filing of the petition, must submit a proposed Pretrial Limited Driving Privilege accompanied by a certified seven year driving record and a properly executed DL-123 form verifying that you have liability insurance in effect on your automobile. The DL-123 is available upon request from your liability insurance carrier.
6. The standard hours of operation included in the Pretrial Limited Driving Privilege are from 6am to 8pm, Monday through Friday. If work requires driving outside of these hours, the Petition for the Limited Driving Privilege must by accompanied by written verification from the employer of the need to drive after 8 o’clock p.m. or on Saturdays or Sundays.

Following the expiration of the thirty day period of civil revocation, you are required to pay a $50.00 restoration fee to clear the civil revocation. You should go to room 118 of the Wake County Clerk of Court’s office and advise the clerk that you are there to pay a civil revocation restoration fee. The clerk will pull the file, and upon payment of the $50.00 restoration fee, will return the original license. Upon payment of the restoration fee, the license is valid with no restriction unless and until you are convicted upon trial in court.

Refusal of Chemical Test

If you are charged with Driving While Impaired (DWI) and refuse to submit to a chemical test of the breath or blood, your license will be automatically suspended for thirty days, and, in addition, the Division of Motor Vehicles (DMV) will notify you within several weeks that a one year revocation will be imposed for refusing to submit to the chemical test. Upon receipt of the DMV notification, you must surrender your license unless a request for a hearing to contest the refusal revocation is received in writing by the DMV prior to the effective date of the one-year revocation. If you are charged with DWI and refuse to submit to a chemical test and desire to contest the one-year revocation, it is imperative that a request for a hearing be made immediately upon receipt of that notification from DMV. It is also imperative that DMV have your current address since the notice letter will be mailed to the address of record at DMV.

DWI Sentencing Levels

There are five levels of punishment for Driving While Impaired in North Carolina. Level 1 is the most severe punishment, and Level 5 is the least severe punishment. The Level of punishment is determined based on a sentencing hearing at which the Judge makes findings regarding the existence of grossly aggravating factors, aggravating factors, and mitigating factors.

Grossly Aggravating Factors

Grossly aggravating factors are as follows:

1. A prior conviction for an offense involving impaired driving which occurred within seven years of the date of the offense for which the defendant is currently being sentenced. (Each prior conviction within the designated time period is a separate grossly aggravating factor.)
2. Driving by the defendant at the time of the offense while his/her license was revoked for an impaired driving revocation as defined by the Statutes.
3. Death or serious injury caused to another person by the defendant’s impaired driving at the time of the offense.
4. Driving by the defendant while a child under the age 16 years was in the vehicle at the time of the offense.

If one grossly aggravating factor is found, level 2 punishment must be imposed by the Judge. If two or more grossly aggravating factors are found to exist, level 1 punishment must be imposed.

Aggravating Factors

The following are aggravating factors under our Driving While Impaired sentencing law:

1. Gross impairment of the defendant’s faculties or an alcohol concentration of 0.16 or more within a relevant time of the driving.
2. Especially reckless or dangerous driving.
3. Negligent driving that lead to a reportable accident.
4. Driving by the defendant while his/her license was revoked. (But not for an impaired driving offense.)
5. A driving record which includes two or more prior convictions for offenses for which at least three points are assigned or for which the convicted person’s license is subject to revocation, if the conviction occurred within five years of the date of the offense.
6. One or more prior convictions of impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
7. Conviction of speeding by the defendant while attempting to elude arrest at the time of the impaired driving.
8. Conviction on the occasion of the impaired driving offense of speeding by at least 30 mph over the speed limit.
9. Passing a stopped school bus during the commission of the offense of impaired driving.
10. Any other factor that aggravates the seriousness of the offense.

Mitigating Factors

The following are the mitigating factors set forth in our Driving While Impaired Sentencing Statute:

1. Slight impairment of the defendant’s faculties resulting solely from alcohol and the alcohol concentration does not exceed 0.09.
2. Slight impairment of the defendant’s faculties resulting solely from alcohol, when no chemical analysis had been available to the defendant.
3. Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
4. A safe driving record of the defendant with no conviction for any motor vehicle offense for which at least four points were assigned within five years prior to the date of the offense for which sentence is being imposed.
5. Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition and the amount of the drug taken was within the prescribed dose.
6. The defendant’s voluntary submission to a mental health facility for an assessment after he/she was charged with the impaired driving offense for which he/she is being sentenced.
7. Any other factor that mitigates the seriousness of the offense.

General Sentencing Guidelines

As indicated above, if two grossly aggravating factors exist, Level 1 punishment must be imposed. If one grossly aggravating factor exists, Level 2 punishment must be imposed.

If no grossly aggravating factors exist, the sentencing Judge weighs the evidence of aggravating and mitigating factors to determine whether the aggravating factors outweigh the mitigating factors, whether the aggravating factors and mitigating factors substantially counter balance one another, or whether the mitigating factors outweigh the aggravating factors.

If the aggravating factors outweigh the mitigating factors, level 3 punishment is imposed. If the factors counter balance each other, Level 4 punishment is imposed. If the mitigating factors outweigh the aggravating factors, Level 5 punishment is imposed.

The punishments for the various sentencing levels are as follows:

Level 1:

1. Imprisonment for up to 24 months.
2. A maximum fine of $4,000.00.
3. A mandatory minimum term of imprisonment of not less than thirty days.
4. A requirement that the defendant obtain a Substance Abuse Assessment and complete the alcohol education required.
5. A mandatory revocation of license, with no Limited Driving Privilege authorized.

Level 2:

1. Imprisonment for up to twelve months.
2. A maximum fine of $2,000.00.
3. A mandatory minimum term of incarceration of seven days.
4. A requirement that the defendant obtain a Substance Abuse Assessment and complete any education or treatment program recommended by the assessing agency.
5. A mandatory revocation of license, with no Limited Driving Privilege authorized.

Under either Level 1 or 2 punishment, the Judge may give credit against the mandatory minimum term of imprisonment for any inpatient treatment received by the defendant following his offense of impaired driving.

Level 3:

1. The punishment for Level 3 offenses of driving while impaired is as follows:
2. Imprisonment for up to six months.
3. A maximum fine of $1,000.00.
4. A requirement that the defendant obtain a Substance Abuse Assessment and complete any treatment program recommended by the assessing agency.
5. A mandatory term of incarceration of 72 hours, which term may be suspended upon one or both of the following conditions:
   1. 72 hours of community service.
   2. A mandatory prohibition on driving for a term of at least 90 days.
6. A one year revocation of the defendant’s driving privilege.

A person subject to the Level 3 punishment, who is otherwise eligible, may obtain a Limited Driving Privilege for the mandatory one year period of revocation imposed for the conviction of impaired driving.

Level 4:

The punishment for Level 4 Driving While Impaired is as follows:

1. Imprisonment for up to 120 days.
2. A maximum fine of $500.00.
3. A requirement that the defendant obtain a Substance Abuse Assessment and complete any treatment program recommended by the assessing agency.
4. A mandatory term of imprisonment of 48 hours which may be suspended upon one or both of the following conditions:
   1. 48 hours community service.
   2. A mandatory prohibition on driving for at least 60 days.
5. A one year revocation of the defendant’s driving privilege.

A person who is subject to Level 4 punishment, who is otherwise eligible, may obtain a Limited Driving Privilege for the one year period of revocation imposed for the conviction of impaired driving.

Level 5:

Punishment for Level 5 Driving While Impaired is as follows:

1. Imprisonment for up to 60 days.
2. A maximum fine of $200.00.
3. A requirement that the defendant obtain a substance abuse assessment and complete any treatment program recommended by the assessing agency.
4. A mandatory term of imprisonment of 24 hours, which term may be suspended upon one or both of the following conditions:
   1. 24 hours of community service;
   2. A mandatory prohibition on driving for a period of thirty days.
5. A one year revocation of the defendant’s driving privilege.

A person who is subject to Level 5 punishment, who is otherwise eligible, may obtain a Limited Driving Privilege for the one year period of revocation imposed for the conviction of impaired driving.

Elevated Alcohol Concentration/Ignition Interlock Required

The law in North Carolina provides that if a person is convicted of Driving While Impaired and that person had an alcohol concentration of 0.16 or more at the time of the offense, a judge must order that any limited driving privilege issued be conditioned upon the installation of an ignition interlock system approved by the Commission. A limited driving privilege issued with an interlock system requirement restricts the driver to the operation of only one particular designated motor vehicle. It is further required that the holder of the limited driving privilege personally activate the ignition interlock system before driving the motor vehicle.

The only exception to this requirement is if the vehicle driven by the holder of the limited privilege is owned by the licensee’s employer; is operated by the licensee solely for work related purposes; and the owner (employer) has filed with the court a written document authorizing the applicant to drive the vehicle for work related purposes under the authority of a limited driving privilege.

There are other circumstances and conditions that may call for an interlock ignition system to be installed on a licensee’s vehicle. These are primarily related to circumstances surrounding the restoration of a license following a period of revocation during which no limited privilege was authorized.