DWI Laws in NC

In North Carolina, D.W.I. stands for “driving while impaired,” typically a misdemeanor that carries with it a maximum of 3 years in prison and a possible $10,000 fine and a mandatory loss of of your privilege to drive in North Carolina, ranging from 1 year to a permanent revocation, depending upon your record. In extreme cases, a D.W.I. can actually be a felony. Further, if you are convicted of a D.W.I. it is possible that your personal North Carolina automobile insurance rates could increase over 700% 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 a 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. or other implied consent offenses, your privilege to drive in North Carolina will be revoked for 30 days if any of the following apply to your case:

1. You refuse a breath or blood test;
2. Your alcohol concentration is over a .08 (or .04 if you were driving a commercial vehicle);
3. 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 $100.00. 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, including payment of court fees, 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.” For example, if your case involves government entrapment, we know how to represent you. If your rights to PreTrial Release and access to witnesses during the arrest and investigation process were violated, we know how to use that to your advantage.

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., breath 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:
   • The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
   • 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
   • 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 (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle 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.
   • 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 Division of Adult Correction of the Department of Public Safety.
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 Advocates for Justice 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 (breath test results). In Northeastern North Carolina, you may obtain an alcohol or substance abuse assessment from.

Private Assessment Providers

Atlantic Coastal Counseling
110 West Wood Hill Dr., Nags Head, NC
Telephone #: 252-441-1802
Contact: Jeff Jaworski – Monday – Friday 8:00 a.m. – 5:00 p.m. Evening and weekend appointments available.

Carolina Assessment & Treatment Services, LLC.
508 East Main St., Kramer Building, Suite 211, Elizabeth City, NC
Telephone #: 252-562-8688
Contact: William Mizelle – Saturdays only.

Coastal Counseling
704 N US HWY 64, Manteo, NC – ADETS PROVIDER
Telephone #: 252-473-4727
Contact: Christopher Roberts – Short and long term treatment groups are on Wednesday and some Saturdays.

Andrea Facci Ph.D. Counseling Services
4112 N. Croatan Highway (M.P. 3.5) Kitty Hawk, NC
Telephone #: 252-256-1673
Fax #: 252-480-1800
Contact: Andrea F. Facci

New Beginnings Assessments & Counseling
228 East Main Street, Ahoskie, NC – ADETS PROVIDER
Telephone #: 252-209-7766
Contact: Price Bowen

Pathway Counseling Center
216 South Broad Street, Rooms 207 & 208, Edenton, NC
Telephone #: 252-482-5330
508 East Main Street, Suites 213 & 214, Elizabeth City, NC – ADETS PROVIDER
Telephone #: 252-338-5334
4311 Caratoke Highway, Barco, NC
Telephone #: 252-453-3350

Profession Counseling Services
12 Juniper Trail, Suite 206, Southern Shores, NC – ADETS PROVIDER
Telephone #: 252-261-4512
Contact: Jo Ann Hummers

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