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Grossly Aggravating Factors in a North Carolina DWI
What Are Grossly Aggravating Factors in an Outer Banks DWI?
Grossly aggravating factors are the facts that move a North Carolina DWI into the three most serious punishment levels. Under N.C.G.S. 20-179(c), the judge must first decide whether any of them exist before weighing anything else at sentencing.
Daniel 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 Dare and Currituck County cases from his office in Nags Head.
Call or text 252-715-5785 for a free consultation with Donahue Criminal Defense.
The Four Grossly Aggravating Factors
- A prior conviction for an offense involving impaired driving within seven years before the date of the current offense. A conviction that comes after the current offense but before sentencing also counts. Each prior conviction is a separate factor.
- Driving while license revoked under G.S. 20-28(a1) at the time of the offense, which covers impaired driving revocations.
- Serious injury to another person caused by the impaired driving.
- A passenger who is a child under 18, a person with the mental development of a child under 18, or a person with a physical disability that prevents unaided exit from the vehicle.
How the Factors Set the Punishment Level
| Factors found | Level the judge must impose | Jail range |
|---|---|---|
| Three or more | Aggravated Level One | 12 to 36 months |
| Two, or the child or vulnerable passenger factor alone | Level One | 30 days to 24 months |
| One (other than the passenger factor) | Level Two | 7 days to 12 months |
| None | Level Three, Four, or Five, based on aggravating and mitigating factors | See the sentencing levels page |
Full details on fines, probation terms, and alcohol monitoring are on our DWI sentencing levels page.
Who Has to Prove the Factors?
The State bears the burden of proving an aggravating factor beyond a reasonable doubt. The defendant bears the burden of proving a mitigating factor by a preponderance of the evidence. Under N.C.G.S. 20-179(c), whether a prior conviction exists is decided by the judge.
Notice of Aggravating Factors in Superior Court
When a DWI conviction in district court is appealed to superior court, N.C.G.S. 20-179(a1)(1) requires the State to give the defendant notice if it intends to use aggravating or grossly aggravating factors. The notice must be provided no later than 10 days before trial, must contain a plain and concise factual statement, and must list all the factors the State seeks to establish. In superior court, a jury decides contested aggravating factors unless the defendant admits them.
Related Felony Charges
Some facts that are grossly aggravating factors can also support separate felony charges. See habitual impaired driving and felony death or serious injury by vehicle.
How We Can Help
- Check the date and record of every prior conviction the State alleges.
- Review whether each alleged factor is supported by the evidence.
- Gather and present mitigating factors.
- Explain the realistic sentencing range before any decision is made.
Grossly Aggravating Factor FAQs
Does an out-of-state DWI count as a prior conviction?
It can. Whether a conviction from another state counts depends on the definition of an offense involving impaired driving in N.C.G.S. 20-4.01(24a) and on the record of that conviction.
Is a high breath test result a grossly aggravating factor?
No. An alcohol concentration of 0.15 or more is an aggravating factor, not a grossly aggravating factor. It still matters at sentencing and for the limited driving privilege.
Is jail required with a grossly aggravating factor?
Level Two and above carry minimum jail terms. In some cases the law allows part of that time to be replaced with continuous alcohol monitoring. The details depend on the level.
If you are charged with DWI in Dare or Currituck County, call or text 252-715-5785. Se habla español.
Please do not include confidential or sensitive information in a contact form, text message, or voicemail.
This page is general information about North Carolina law, not legal advice for your situation.