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DWI Sentencing Levels in North Carolina
How North Carolina Decides a DWI Sentence
If you are convicted of DWI in North Carolina, the judge does not simply pick a punishment. N.C.G.S. 20-179 sets out six punishment levels, from Level 5 (the least severe) to Aggravated Level 1 (the most severe). Which level applies depends on the factors the judge finds at sentencing.
Daniel P. Donahue is a Board Certified Specialist in State and Federal Criminal Law, certified by the North Carolina State Bar Board of Legal Specialization. He is the only board-certified criminal law specialist based in Dare County, and he handles DWI cases in both Dare and Currituck County courts.
Call or text 252-715-5785 to talk about what level may apply in your case.
The Three Kinds of Sentencing Factors
At sentencing, the judge weighs three kinds of factors:
- Grossly aggravating factors, the most serious, which move a case into Levels 2, 1, or Aggravated Level 1
- Aggravating factors, which weigh toward a harsher level
- Mitigating factors, which weigh toward a lighter level
The State must prove aggravating and grossly aggravating factors beyond a reasonable doubt. The defendant must prove mitigating factors by a preponderance of the evidence.
Grossly Aggravating Factors
- A prior impaired driving conviction within seven years of the current offense (each prior conviction counts as a separate factor)
- Driving while license revoked at the time of the offense, when the revocation was for an impaired driving offense
- Serious injury to another person caused by the impaired driving
- Driving with a child under 18, a person with the mental development of a child under 18, or a person with a physical disability preventing unaided exit from the vehicle, in the vehicle
The last factor, a child or vulnerable passenger in the vehicle, is treated especially seriously. On its own, it requires at least Level 1 punishment.
Aggravating Factors
Common aggravating factors include:
- Gross impairment, or an alcohol concentration of 0.15 or more
- Especially reckless or dangerous driving
- Negligent driving that led to a reportable crash
- Driving while license revoked for a reason other than impaired driving
- Two or more prior convictions for motor vehicle offenses carrying at least three points within five years, or an impaired driving conviction more than seven years old
- Speeding while fleeing or attempting to elude arrest
- Speeding at least 30 mph over the limit
- Passing a stopped school bus
Mitigating Factors
Common mitigating factors include:
- Slight impairment caused solely by alcohol, with an alcohol concentration of no more than 0.09
- Slight impairment, where no chemical test result is available
- Safe and lawful driving, apart from the impairment
- A safe driving record, with no convictions for motor vehicle offenses carrying four or more points in the past five years
- Impairment caused mainly by a lawfully prescribed drug taken at the prescribed dose
- Voluntarily getting a substance abuse assessment after being charged, and completing any recommended treatment
- Completing a substance abuse assessment, following its recommendations, and maintaining 60 days of verified abstinence through continuous alcohol monitoring
The Six Punishment Levels
| Level | When it applies | Jail term | Maximum fine |
|---|---|---|---|
| Aggravated Level 1 | Three or more grossly aggravating factors | 12 to 36 months. If suspended, at least 120 days in jail and 120 days of continuous alcohol monitoring | $10,000 |
| Level 1 | Two grossly aggravating factors, or a child or vulnerable passenger in the vehicle | 30 days to 24 months. If suspended, at least 30 days in jail (can be reduced to 10 days with 120 days of continuous alcohol monitoring) | $4,000 |
| Level 2 | One grossly aggravating factor | 7 days to 12 months. If suspended, at least 7 days in jail (can be reduced with 90 days of continuous alcohol monitoring) | $2,000 |
| Level 3 | No grossly aggravating factors; aggravating factors substantially outweigh mitigating factors | 72 hours to 6 months. If suspended, 72 hours in jail, 72 hours of community service, or a combination | $1,000 |
| Level 4 | No grossly aggravating factors; aggravating and mitigating factors balance, or there are none | 48 hours to 120 days. If suspended, 48 hours in jail, 48 hours of community service, or a combination | $500 |
| Level 5 | No grossly aggravating factors; mitigating factors substantially outweigh aggravating factors | 24 hours to 60 days. If suspended, 24 hours in jail, 24 hours of community service, or a combination | $200 |
These are the ranges set by statute. Sentences at Levels 3 through 5 are often suspended, with probation and conditions such as community service, a substance abuse assessment, and any recommended treatment.
Other Consequences of a DWI Conviction
A DWI conviction also brings a license revocation, typically one year for a first conviction and longer with prior convictions. A limited driving privilege may be available depending on your punishment level and record. Traffic convictions can bring license suspension and DMV points under N.C.G.S. Section 20-16, and a DWI conviction can raise insurance premiums sharply under the North Carolina Safe Driver Incentive Plan (SDIP), which is administered by the NC Commissioner of Insurance.
Why Early Preparation Matters
Mitigating factors are not automatic. Several of them, such as a substance abuse assessment, treatment, or a period of monitored abstinence, take time to complete before a sentencing date. Talking with a lawyer early gives you the most time to understand which factors may apply to you.
Out-of-State Drivers
A North Carolina DWI conviction will generally be reported to your home state, which may impose its own consequences. If you live outside North Carolina, we can talk with you early about how sentencing requirements work from a distance.
Frequently Asked Questions
Will I go to jail for a first DWI? Not necessarily. Many first offenses fall at Levels 3 through 5, where the jail term is often suspended. The level depends on the factors in your case.
Does a high breath test result change the level? An alcohol concentration of 0.15 or more is an aggravating factor. It also triggers an ignition interlock requirement on a limited privilege and when your license is restored.
Can the judge consider my good driving record? Yes. A safe driving record can be a mitigating factor.
What if I refused the breath test? A refusal brings its own license consequences, separate from sentencing. See our page on DWI refusal and license revocation.
Talk to a Board-Certified Criminal Defense Lawyer
Call or text 252-715-5785, or use the contact form on this page. The sooner we hear from you, the more time there is to prepare.
Please do not include confidential or sensitive information in a contact form, text message, or voicemail.