If you are charged with DWI, and have a record with one or more DWI convictions, then you could face harsher penalties. One important aspect in determining how much your record could hurt you depends on the timing of the conviction(s). If you have a conviction within the past 7 years prior to the date of the alleged DWI offense, it is considered a grossly aggravating factor. If, however, the conviction occurred outside of this 7-year time frame, it is simply considered an aggravating factor.
It is important to note that each individual DWI on your record is counted as a grossly aggravating or aggravating factor. For instance, if you have one DWI conviction from 5 years ago, and you have one DWI from 6 years ago, you have two grossly aggravating factors.
Based on the number of grossly aggravating, aggravating, and mitigating factors in your case, you will be assigned a level at which you will be punished. There are six levels, from Level 5 (the lowest), to Aggravated Level 1 (the highest.) Each level has a range of punishments that can be imposed. Once you are assigned a level, the judge uses his or her discretion to determine where your case falls within that range for that level.
For example, if you have a grossly aggravating factor, you automatically are bumped up to Level 2. No amount of mitigating factors can get you below a Level 2, but mitigating factors may convince the judge that a lower amount of punishment should be given from the Level 2 range of punishment. If you have two grossly aggravating factors, you will automatically go to Level One, and if you have three or more grossly aggravating factors, you will automatically go to Aggravated Level One. It is important to recognize that there are other grossly aggravating factors, but the grossly aggravating we see most commonly is a previous DWI within the past 7 years.
If you don’t have any grossly aggravating factors in your case, then the judge is to balance the aggravating and mitigating factors that are in your case. If the aggravating factors substantially outweigh the mitigating factors, then you will be sentenced as a Level 3. If the aggravating factors and mitigating factors balance out, or there are no factors in your case, you are sentenced as a Level 4. Finally, if the mitigating factors outweigh the aggravating factors, then you are sentenced as a Level 5. These lower levels of punishment have less harsh punishment than the higher levels, and judges can use mitigating factors to get defendants put in lower levels of punishment.
The punishments vary a great deal in severity. If you receive the lowest level of punishment in Level 5, then you can receive 24 hours of community service and a fine of less than $200. On the other hand, if you are sentenced at Aggravated Level One, and receive the highest level of punishment in Aggravated Level One, then you could be facing three years in jail and a fine of $10,000. Obviously, 24 hours of community service is a much better sentence than 3 years in jail, and a fine of less than $200 is much easier to pay than one of $10,000.
A special category exists for those who have had 3 DWIs in the past 10 years. For the fourth time, it becomes very serious. Then you are charged with Habitual DWI, which is a Class F felony. Upon conviction, the person must be sentenced to at least 12 months in custody, and that number could go much higher, depending on the previous convictions on the person’s record. Needless to say, this is a very serious charge to deal with. When you have a felony, you face consequences beyond jail. A felony show up in background checks, and frankly, many businesses just won’t hire felons. Felons are also not allowed to own firearms in North Carolina. These, and other restrictions can have huge effects for your lifestyle and for your liberties.
Of course, this is a drastic simplification of the law to help you understand how the sentencing system works, and to demonstrate how a prior DWI can effect your sentencing. If you have questions about how the law applies in your own case, only a licensed attorney can provide legal advice about your situation. Facts and circumstances vary from case to case, so you need to talk with your attorney about your case. A DWI attorney can advise you as to whether you should try or plead your case, and what kind of punishment you could expect if convicted. He or she can also attempt to help you receive a lower level of punishment if you are convicted.