North Carolina D.W.I. Laws
In North Carolina, D.W.I. stands for “driving while impaired,” a misdemeanor that carries with it a maximum of 2 years in prison and a possible $4,000 fine and a mandatory loss of of your privilege to drive in North Carolina, ranging from 1 year to permanently, depending upon your record. Further, if you are convicted of a D.W.I. it is possible that your personal North Carolina automobile insurance rates could increase up to 800% for 3 years following a conviction of D.W.I.
There are several elements to the crime of D.W.I.
- A “driver” or “operator” is someone who is in actual physical control of a vehicle that is in motion or has the engine running.
- A “vehicle” is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway. For D.W.I. purposes, “vehicle” does not include a horse, but it now includes bicycles and lawnmowers. "Vehicle" does not include certain electric personal assistive mobility device.
- The driving can occur on any “highway,
street or public vehicular area”
- A “highway” or “street” includes the entire width between property or right-of-way lines of every way or place of whatever nature of which any part is open to the use of the public as a matter of right for the purposes of vehicular traffic.
- A “public vehicular area” generally means any area open to and used by the public for vehicular traffic at most universities, schools, businesses, neighborhoods, federal property, beach driving areas, within or leading to a subdivision, private property designated as a public vehicular area, and other places that don’t exactly meet the definition of a “street” or “highway”. It also includes beach areas used by the public for vehicular traffic and roads leading to subdivision.
- “Impairment” means either a) “under the influence” of an “impairing substance,” or b) having consumed sufficient alcohol to have, at any relevant time after the driving an alcohol concentration of .08 or more.
- An “impairing substance” can be
alcohol, illegal drugs, cough syrup and/or
prescription medications.
- “Under the influence” is having physical and/or mental faculties appreciably impaired.
- Breath or blood tests, both of which must be conducted in accordance with specific state laws and regulations, measure alcohol concentration. A driver’s refusal to take a breath test will normally result in a 1-year revocation of your privilege to drive in North Carolina with no limited driving privilege.
If you are arrested for a D.W.I., your privilege to drive in North Carolina will be revoked for 30 days if any of the following apply to your case:
- You refuse a breath or blood test;
- Your alcohol concentration is over a .08 (or .04 if you were driving a commercial vehicle);
- You are under 21 and had any alcohol in your system while driving.
After 30 days you may get your license from the Clerk of Court after you pay a reinstatement fee of $50.00. Ordinarily, you may then drive without any restrictions until your case is resolved in court. The status of your license will then depend upon the results of your case.
It may be possible for you to obtain a pre-trial limited driving privilege that would allow you to drive for the limited purposes of working, school or maintaining your household during limited hours for days 11 through 30 of the initial 30-day revocation period. There are many conditions that affect your eligibility for this limited driving privilege, and many steps that have to be taken to be eligible for this privilege, so you should contact an experienced DWI attorney if you are interested in obtaining this privilege.
The State must prove beyond a reasonable doubt that you are guilty of D.W.I. before you can be convicted and punished. An attorney experienced in defending D.W.I. cases can make sure that the officer followed all of the laws and rules pertaining to D.W.I. during the arrest and testing process. An experienced D.W.I. attorney can also make sure that your constitutional and statutory rights were not violated during the arrest and testing process and are not violated during trial. Some mistakes made by officers during the arrest or testing process, or by prosecutors during your trial, are of sufficient severity to warrant the Judge dismissing your case or finding you "not guilty."
Generally, an officer must have reasonable and articulable suspicion to believe that you committed a crime or a traffic violation before the officer can stop you or your car. The officer must then have reasonable grounds to believe that that you committed an implied consent offense (i.e., D.W.I.), or that you consumed alcohol and committed a moving violation, or that you were involved in a wreck, before the officer can give you an alcohol screening test (i.e., Alco-Sensor, or hand-held breath test machine). To be valid, the alcohol-screening test must be performed in accordance with applicable statutes and regulations. The results of the Alco-Sensor are ordinarily not admissible as evidence of impairment in court.
The officer must then have probable cause to arrest you. If you are in custody at the time, the officer generally must inform you of your Miranda rights before he can ask you questions and then later use your answers against you in court.
The chemical analysis (i.e., Intoxilyzer test or blood test) must be performed in accordance with applicable statutes and regulations, or the breath or blood test results may be invalid and inadmissible. An experienced D.W.I. attorney can review the case and determine whether the applicable rules were followed. An experienced D.W.I. attorney can also determine whether an expert witness is needed in order to explain why the breath or blood test results are inaccurate or invalid in your case.
If you are convicted, your actual punishment level will depend upon your prior record or other factors in your case. If you have a prior D.W.I. conviction within the 7 years prior to your arrest or prior to your conviction, or if you have any other “grossly aggravating factors” present in your case, you will be required to serve between a week and 2 years in jail. The Judge will determine the actual length of your sentence within the applicable range. If you do not have any “grossly aggravating factors” present in your case, then you may have to serve up to 72 hours in jail, depending upon the existence of “aggravating factors” or “mitigating factors.”.
GROSSLY AGGRAVATING FACTORS
(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to
G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver's license was revoked under
G.S. 20-28, and the revocation was an impaired driving revocation under
G.S. 20-28.2(a).
(3) Serious injury to another person caused by the defendant's impaired driving at the time of the offense.
(4) Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.
AGGRAVATING FACTORS
(1) Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.
(2) Especially reckless or dangerous driving.
(3) Negligent driving that led to a reportable accident.
(4) Driving by the defendant while his driver's license was revoked.
(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under
G.S. 20-16 or for which the convicted person's license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6) Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of
G.S. 20-217.
(9) Any other factor that aggravates the seriousness of the offense.
MITIGATING FACTORS
(1) Slight impairment of the
defendant's faculties resulting solely from alcohol,
and an alcohol concentration that did not exceed
0.09 at any relevant time after the driving.
(2) Slight impairment of the
defendant's faculties, resulting solely from
alcohol, with no chemical analysis having 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, with
the defendant's having no conviction for any motor
vehicle offense for which at least four points are
assigned under G.S. 20-16 or for which the person's
license is subject to revocation within five years
of the date of the offense for which the defendant
is being sentenced.
(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
dosage.
(6) The defendant's voluntary
submission to a mental health facility for
assessment after he was charged with the impaired
driving offense for which he is being sentenced,
and, if recommended by the facility, his voluntary
participation in the recommended treatment.
(6a) Completion of a substance
abuse assessment, compliance with its
recommendations, and simultaneously maintaining 60
days of continuous abstinence from alcohol
consumption, as proven by a continuous alcohol
monitoring system. The continuous alcohol monitoring
system shall be of a type approved by the Department
of Correction.
(7) Any other factor that
mitigates the seriousness of the offense.
Except for the factors in subdivisions (4), (6),
and (6a), the conduct constituting the mitigating
factor shall occur during the same transaction or
occurrence as the impaired driving offense.
If you are convicted of D.W.I., your driver's license will be revoked for at least one year. If you have been convicted of another offense involving impaired driving within the three years prior to your current date of offense, D.M.V. will revoke your driver's license for 4 years. If you have been convicted of 2 or more prior offenses involving impaired driving, and the most recent offense occurred within the five years before your current offense date, D.M.V. will revoke your driver's license permanently.
If you are convicted of D.W.I., and you have no D.W.I. convictions within the previous 7 years, you may be eligible for a limited driving privilege that would allow you to drive during limited hours for certain essential purposes, such as employment; education; maintenance of your household; court-ordered treatment or assessment; court-ordered community service; and emergency medical care. It is the Judge’s decision whether to grant to you this limited driving privilege. There are numerous conditions that apply to driving on a limited driving privilege, and the violation of any one of them could result in a conviction of Driving While License Revoked, which carries with it an additional 1-year revocation, with no limited driving privilege available. A limited driving privilege will not allow you to drive certain commercial vehicles for any purpose, including most tractor-trailers and buses. An experienced D.W.I. attorney can determine whether you are eligible and assist you in presenting your limited driving privilege to the presiding Judge.
If you are charged with a D.W.I. and at the time your driver's license was revoked as a result of a prior impaired driving license revocation, the vehicle you were driving while impaired may be seized and impounded, and the State will store the vehicle, at your expense, until your case is concluded in Court. If you are the sole owner of the vehicle and you are convicted of D.W.I. and the Court finds that at the time of your arrest you were driving on a revoked license as a result of a prior impaired driving license revocation, then you will probably lose your vehicle permanently. An experienced D.W.I. attorney can make sure that all of your rights related to your seized vehicle are protected during the process. Our attorney, Danny Glover, Jr., has spoken at conferences and been published numerous times by the North Carolina Academy of Trial Lawyers on the issue of D.W.I. seized vehicles.
If someone else owns the vehicle you were driving when you were arrested for D.W.I., the owner, including lienholders, may apply to the Clerk of Court in the county where the charges are pending for pretrial release of the vehicle. This should be done as quickly as possible as the vehicle may be sold by the local school board as soon as 90 days following the impoundment. Certain conditions must be met in order for a non-defendant owner to obtain the vehicle, including the posting of a bond equal to the fair market value of the vehicle and the payment of all storage and towing costs, which may later be recovered from the defendant upon conviction of D.W.I. The Clerk may release the vehicle in some cases, but in other cases the Clerk may have to schedule a hearing before a District Court Judge. In some cases the pretrial release may be permanent, but in other cases the non-defendant vehicle owner may have to wait for the resolution of the defendant’s trial to determine the final status of the vehicle.
If you have been charged with D.W.I., you should obtain an alcohol assessment before your court date. Obtaining the assessment and voluntarily participating in any recommended classes or treatment qualifies as a “mitigating factor” for sentencing purposes and may help reduce your punishment if you are convicted of D.W.I. An alcohol assessment is a standardized test to determine whether or not you have a substances abuse handicap according to state guidelines. It also involves a clinical interview with the substance abuse counselor. The assessment takes about 1 hour. You must take to your assessment appointment your D.W.I. citation and your DEHNR 3908 (Intoxilyzer results). In Northeastern North Carolina, you may obtain an alcohol or substance abuse assessment from.
Private Assessment Providers
Joann Hummers – Southern Shores - (252) 261-9512
Martha Early - Edenton - (252) 338-0121
Patricia Reading – Edenton - (252) 482-5330
Patricia Reading – Elizabeth City - (252) 338-5334
Price Bowen – Ahoskie –(252) 862-4441
Andrea F. Facci - Kitty Hawk and Frisco - (252)
255-1847
Albemarle Mental Health Centers
| Camden County | (252) 335-5158 | |
| Currituck County | (252) 453-8886 | |
| Chowan County | (252) 482-7493 | |
| Pasquotank County | (252) 331-0803 | |
| Perquimans County | (252) 426-5107 | |
| Manteo | (252) 473-1135 | |
| Nags Head | (252) 441-9400 | |
| Avon | (252) 995-4951 | |
| Hatteras Island | (252) 995-4951 |
