If you’ve been accused of a DWI in Wilmington, NC there are a number of things you need to consider regarding the DWI laws. DWI law changes very rapidly since the government demands an ever-increasing control over our driving. Thru the years, as the control has grown, so has the number of DUI / DWI offenses as can be seen from the following list:
- Impaired Driving
- Habitual Impaired Driving
- Impaired Driving in a Commercial Vehicle
- Operating of Commercial Motor Vehicle after Consuming
- Operating of School Bus, School Activity Bus, or Child Care Vehicle after Consuming
- Operating Motor Vehicle after Consuming Under 21
- Felony Death by Motor Vehicle
- Felony Serious Injury by Motor Vehicle
- Aggravated Felony Serious Injury by Motor Vehicle
- Aggravated Felony Death by Motor Vehicle
- Involuntary Manslaughter
- Murder
If you have been charged with a DWI (DUI) offense, please complete our DWI Evaluation Form and talk with Wilmington DWI Lawyer Greg Kornegay.
The government justifies a complicated set of rules for DWI offenses in the name of safety. Sometimes however, the government will overreach in its effort to keep everyone safe. This overreaching by the government normally shows up when they define a term in the law using overly broad language or the government may violate a constitutional right. Often a DWI case is fought in court over the definition of a word or phrase found in the DWI law. For example: what is an impairing substance? An impairing substance could mean more than just alcohol. What is a public vehicular area? A public vehicular area means more than just the streets and highways that you drive on. For these reasons and more, it is prudent to have an experienced DWI lawyer in Wilmington fighting for you – Greg Kornegay is ready to help.
Trial
Generally, there are four areas for challenge at DWI trials:
- Did the officer have a good reason for stopping you?
- Did the officer have probable cause that you had committed a crime when he arrested you?
- Field Sobriety Tests – even though the actual purpose of these tests is to gather evidence to use against you at trial, these tests must still be administered correctly in order to be valid.
- Reasonable doubt as to your guilt. If the Judge has a doubt about your guilt related to a substantive issue in the case, he or she will find you not guilty if there is a reasonable basis for the doubt.
Sentencing
If you are convicted of DWI in Wilmington, you must then have a sentencing hearing to determine if there are aggravating, grossly aggravating, or mitigating factors. You must be sentenced under one of the following categories:
Level 5
Mitigating factors outweigh the aggravating factors.
- A minimum of 24 hours and a maximum of 60 days in jail
- A maximum fine of $200
if placed on probation, you could receive the following conditions of probation:
- 24 hours community service
- 24 hours jail
- obtain a substance abuse assessment and complete the recommended treatment
Level 4
Mitigating factors are equal to the aggravating factors – balanced
- maximum of 120 days in jail
- maximum fine of $500
if placed on probation, you could receive the following conditions of probation:
- 48 hours in jail
- 48 hours community service
- obtain a substance abuse assessment and complete the recommended treatment
Level 3
Aggravating factors outweigh the mitigating factors
- maximum of 180 days in jail
- maximum fine of $1000
if placed on probation, you could receive the following conditions of probation:
- 72 hours in jail
- 72 hours community service
- obtain a substance abuse assessment and complete the recommended treatment
Level 2
Judge finds one grossly aggravating factor
- maximum one year in prison
- minimum of seven days in prison (the judge may accept inpatient alcohol treatment instead of jail time)
- maximum fine $2000
Level 1
Judge finds two grossly aggravating factors
- maximum two years in prison
- minimum 30 days in prison (the judge may accept inpatient alcohol treatment instead of jail time)
- maximum fine of $4000
SPECIAL NOTE
* for cases charged on or after 12/1/2011, it is possible to be sentenced at a level I with only one grossly aggravating factor being present if:
- a child under the age of 18 is in the car with you;
- a person with the mental development of a child under the age of 18 is in the car with you; or
- a person with a physical disability that prevents a person from getting out of the vehicle without assistance is in the car with you
Level A1
For cases charged on or after 12/1/2011, if the judge finds three or more grossly aggravating factors
- minimum of 12 months and maximum 36 months in prison
- maximum fine of $10,000
There is some flexibility in determining the specific level of DWI between levels 3-5. However, much of the flexibility disappears for levels 2-A1.
Mitigating, aggravating, grossly aggravating factors
Mitigating factors
- slight impairment with an alcohol concentration that did not exceed .09
- slight impairment resulting from alcohol and no chemical analysis was available
- the driving at the time of the offense was safe and lawful
- a safe driving record with no prior motor vehicle convictions within 5 years for which at least 4 points are assigned or for motor vehicle offenses for which the person’s license is subject to revocation
- the impairment was caused by a lawfully prescribed drug for an existing medical condition and the correct dosage amount was taken
- voluntary submission to a mental health facility for assessment after being charged with impaired driving; 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 of a type approved by the DOC.
- any other factors that mitigates the seriousness of the offense
Aggravating factors
- alcohol concentration of .15 for more
- reckless or dangerous driving
- negligent driving that led to a reportable accident
- driving while your license was revoked
- 2 or more prior motor vehicle convictions not involving impaired driving requiring at least three license points to be assigned; or causing the person’s licensed to be subject to revocation (the convictions must have occurred within five years of the present offense or 1 or more prior convictions of impaired driving that occurred more than 7 years before the date of the present offense).
- conviction of speeding while fleeing or attempting to elude apprehension
- conviction of speeding by at least 30 mph over the legal limit
- passing a stopped school bus
- any other factor that aggravates the seriousness of the offense
Grossly aggravating factors
- a prior conviction of impaired driving when the conviction occurs within 7 years before the date of the current offense; 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 the District Court; and a new sentencing hearing has not been held
- driving by the defendant at the time of the offense while his driver’s license was revoked under N.C.G.S. 20-28, and the revocation was in impaired driving revocation under N.C.G.S. 20-28.2 (a)
- Serious injury to another person caused by the defendant’s impaired driving at the time of the offense
- driving by the defendant while a child under the age of 18 is in the car; driving by the defendant while a person with the mental development of a child under the age of 18 is in the car; driving by the defendant while a person with a physical disability that prevents a person from getting out of the vehicle without assistance is in the car
Limited Driving Privileges
If you are convicted of a DWI, one of the first questions you’ll have is: am I allowed to drive? The answer is yes, sometimes if you are eligible for a limited driving privilege. A limited driving privilege is very much like a restricted license. That means you can only drive for specific purposes such as work, school, or an emergency medical treatment. Under such a privilege, of course you cannot drive after consuming alcohol or a controlled substance.
Requirements to obtain a limited driving privilege include the following:
- A valid license or a license expired less than 1 year at the time of the offense
- No prior impaired driving convictions within the last 7 years
- Sentencing at level 3, 4 or 5
- No impaired driving convictions or unresolved charges filed subsequent to the offense date
- Applicant obtained a substance abuse assessment
Required documents to present to the court:
- Proof of a substance abuse assessment
- Proof of insurance on Form DL-123
- A letter from an employer, if requesting non-standard work hours, or, if self-employed, an affidavit stating the need of non-standard work hours (Standard work hours includes Monday – Friday, 6:00 am to 8:00 pm)
- If applicable, proof of installation of an ignition interlock device
- Driving record
The judge can always place extra restrictions on the privilege in addition to the privilege itself. High risk drivers (BAC of .15 or more) are required to obtain an ignition interlock machine.
Contact Wilmington DWI Attorney Greg Kornegay for a free initial consultation:
910-763-5757
Toll Free: 866-579-5757
[email protected]
Gregory Kornegay,
