North Carolina's laws make it a crime to drive a motor vehicle while impaired. Three circumstances of impairment are described in the statute: driving while impaired by alcohol or drugs; driving with 0.08 percent or higher blood alcohol concentration; and driving while using any amount of a controlled substance. While one might hope that drivers would follow these rules voluntarily in order to prevent harm to others, North Carolina isn't counting on it. The laws also set out administrative and criminal punishments for violations of the driving while impaired (DWI) law.
DWIs in North Carolina
Driving a motor vehicle while drinking or using drugs is known to be very dangerous. According to the LA Progressive, drunk driving causes a death every 50 minutes in this country – some 27 people die every day from DWI accidents. Tough laws and penalties help prevent this dangerous practice.
All states have enacted DWI or driving under the influence (DUI) laws making it illegal for a person to drive while their blood alcohol concentration is 0.08 percent or higher. North Carolina, like many others, has a DWI statute that sets the lower bar of 0.04 percent for commercial vehicle drivers. It also sets this lower level for anyone with a driving history that includes a DWI conviction.
The state also makes it illegal for a person to drive with any amount of a Schedule I controlled substance (such as opiates and heroin) in their system. Note that this applies even if the person has the legal authority to use the drug, like a doctor's prescription. While the person may be permitted to take the drug, it does not mean that they can drive while under the influence of an impairing substance.
DWI Penalties in North Carolina
North Carolina has two types of sanctions that apply to those who violate the state's DWI laws. One is administrative sanctions that are the province of the North Carolina Division of Motor Vehicles (DMV). The other is criminal sanctions which involve actions in court charging the driver with a criminal offense.
A DWI offense can be charged as any of five criminal levels, ranging from level 5, the least serious, to level 1 DWI charge, the most serious. There is also an aggravated level 1, which is more serious than a regular level 1 offense.
Administrative penalties are imposed even before a driver goes to court for a DWI charge. They apply automatically and are not tied to the criminal case. That is, administrative sanctions may apply even if a driver is not ultimately charged with a DWI offense or if they are charged and found innocent. Criminal penalties only apply once a judge or jury hears the driver's criminal case and determines that they are guilty as charged.
Administrative DWI Penalties in North Carolina
Administrative penalties for a drunk driving offense in North Carolina involve a revocation of the person's driver's license. This penalty is applied if the driver suspected of a DWI refuses to take a chemical test or breath test.
Chemical testing is required in order to charge a driver with operating a motor vehicle with a blood alcohol concentration of 0.08 percent or above (0.04 percent or above in certain circumstances) or operating a vehicle while using a Schedule 1 controlled substance. North Carolina's implied consent law provides that every person who chooses to drive in the state consents to take a breath test, blood test or urine test if arrested for a DWI. Anyone refusing to take a test when asked to do so by an arresting officer will have their driving license revoked for one year.
What if a driver takes a test and it shows that they have an over-the-limit BAC or have controlled substances in their system? They are also subject to administrative sanctions. If the DWI is a first offense, the driver's license is revoked administratively for one year. For a second offense, the revocation is four years, and a third offense results in permanent revocation. The convictions count as prior DWIs only if they occurred within seven years of the current DWI arrest.
North Carolina DWI Criminal Penalties
A DWI prosecution in North Carolina proceeds in two stages. First, there is a criminal trial to determine whether the driver violated the DWI statute. The state is represented by the prosecutor who must prove every element of the charge beyond a reasonable doubt.
While this is usually not difficult for "per se" DWIs – DWI offenses based on the results of chemical testing – it is more complicated for impairment DWIs, which do not rely on the driver having failed chemical testing, but on evidence of actual impairment. If the driver is found guilty, the parties proceed to a sentencing hearing.
In the sentencing hearing, a judge determines whether the charge is a level 5, 4, 3, 2 or 1 misdemeanor, or is level 1 aggravated, the level with more severe punishments. In order to make that decision, the judge hears evidence from both sides about aggravating or mitigating factors that apply to a particular case. Generally in a DWI case, the prosecutor presents evidence of aggravating circumstances, such as a prior DWI conviction, while the driver's defense attorney brings forward evidence of mitigating circumstances.
DWI Aggravating Factors
Aggravating factors are those which can push a DWI conviction into a more severe level of punishment. They are divided into two categories, regular aggravating factors and gross aggravating factors. The latter carry additional negative weight for the driver. The judge determines the level from the evidence, and the level determines the jail term, fines and other penalties that apply.
The blood alcohol concentration for a per se misdemeanor in North Carolina is 0.08 percent or more. If a driver's BAC is much higher than that standard – 0.15 percent or higher – it is considered an aggravating factor. It is also an aggravating factor for the DWI driver to have been driving recklessly; eluding police officers; driving 30 mph above the speed limit; passing a stopped school bus; causing an accident with another car, truck or other vehicle; hitting pedestrians; or other dangerous driving. A poor driving history can also be an aggravating factor, and includes having two prior traffic violations and three demerit points.
Gross aggravating circumstances are similar, but more dangerous or destructive. For example, while causing an accident is an aggravating factor, causing an accident that results in serious injury to another person is a gross aggravating factor. Likewise, two prior driving offenses can be an aggravating factor, but a prior DWI is a gross aggravating factor. So is having a passenger while committing a DWI if the passenger is a minor.
DWI Mitigating Circumstances
A BAC level that is relatively low, like 0.08 or 0.09 percent, is a mitigating factor. For a drug-based DWI, it is a mitigating factor (though not a defense) that the driver had been legally prescribed the drug. A driver who submits to a mental health screening, 60 days of sobriety monitoring, or substance abuse treatment before they are sentenced may introduce these as mitigating factors.
Penalties for Higher Misdemeanor Levels
Criminal penalties for impaired driving offenses in North Carolina include jail time and/or supervised probation, fines, substance abuse assessment and loss of driving privileges. The amount of each depends on the level of the crime. Most first offense DWIs are levels 5, 4 or 3.
A driver who is found to be guilty of a level five misdemeanor must serve a minimum jail sentence of at least 24 hours in jail, but jail time can be as lengthy as 60 days. A judge can give the driver probation in lieu of, or in addition to, jail time. Substance abuse assessment and, if necessary, treatment, is usually a condition of probation. Fines for this level of crime can be up to $200, and the driver's license will be suspended for at least 30 days.
Level 4 punishment is similar to level 5, although the jail time is between 48 hours and 120 days in jail, with probation an option for the court. The fine can be up to $500. The license suspension and substance abuse assessment are the same.
Penalties for Level 3 Violations
A driver can be sentenced to between 72 hours and six months in jail for a level 3 violation. The court can suspend the sentence to 72 hours of jail or community service and instead impose probation. Fines can be as high as $1,000. Like with levels 3 and 4, the person's driver's license can be suspended for 30 days, and they may be assigned to substance abuse assessment as part of supervised probation.
Penalties for Lower Misdemeanor Levels
If a violation is found to be level 2, the driver must spend at least seven days in jail, and the court cannot substitute probation for this minimum time. Jail time can be up to 12 months. The potential fine is up to $2,000.
A driver will be assigned to level 1 if the judge finds two or more gross aggravating factors or if there was a minor passenger in the car. Level 1 offenders face a jail sentence of between 30 days and 24 months, with minimum jail time of 10 days if probation is granted. Fines can be up to $4,000, and the rules about license suspension and substance abuse assessment are the same.
Although it is said that the levels run from 5 to 1, there is also a more serious level, termed aggravated level one. A driver might get this level if the judge finds three or more gross aggravating factors. The jail time will be between 12 months and 36 months in jail, with 120 days being the minimum in probation cases. Fines for aggravated level 1 offenses can be up to $10,000.
Penalties for Drivers Under 21
North Carolina drivers under the age of 21 are not permitted to buy alcohol in the state. Because of that, there are special DWI rules that apply to these drivers, as well as special penalties. The state law on this subject represents a zero tolerance policy.
A driver under the age of 21 is not permitted to drive with any amount of alcohol in their system. That is, they violate the law if their BAC is 0.01 percent or above. What if the young driver refuses to take the chemical test? The court can convict them if the police testify that they smelled alcohol on the young person's breath.
This will result in loss of driving privileges for 30 days before trial and a year after conviction. But other alcohol-related behavior will result in the same penalties. They include buying alcohol or trying to buy it; helping someone else buy alcohol; using a fake license or ID to buy alcohol; or using a real license or ID belonging to another driver to purchase alcohol. The court can order fines, fees and other penalties as well. A driver of any age who has a BAC over the legal limit can be charged with a regular DWI.
- North Carolina General Statute: Section 20-1381
- Driving Laws: First-Offense DWI in North Carolina
- DMV.org: DUI & DWI in North Carolina
- North Carolina DMV: Driving While Impaired
- NC Department of Public Safety: Driving While Impaired
- DUI Driving Laws: North Carolina
- LA Progressive: Drunk Driving Stats
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.