History of DWI Effects on Sentencing

Driving While Intoxicated is always a serious offense. However, the outcome of each individual DWI case depends on a number of factors including your prior driving record.

Generally speaking, a first time DWI offender is likely to receive a lighter sentence than someone with a history of DWI offenses. North Carolina breaks up DWI sentences into Levels 1 through 5. Level 5 carries the least severe punishment while Level 1 is as harsh as it gets. To determine where on the 5 to 1 scale a specific DWI conviction falls the court divides the facts up into mitigating, aggravating, and grossly aggravating factors. Below is a full list of the factors the courts take into account during sentencing for a DWI. The factors that are directly impacted by past driving record are in bold.

Mitigating Factors

These are facts that weigh in favor of the defendant. The more of these there are the better the chances of a lower punishment. North Carolina law recognizes six specific mitigating factors plus a seventh that serves as a “catch all” for anything not specifically covered. A history of safe driving is one of the factors the court expressly considers a mitigating factor. The full list of mitigating factors includes:

  • Slight alcohol impairment with a BAC of .09 or less
  • Slight alcohol impairment with no chemical analysis available to defendant
  • Otherwise safe and lawful driving at time of offense
  • Statutorily safe driving record: defendant has no conviction for any motor vehicle offense for which 4 or more points are assigned within the last 5 years
  • Defendant’s impairment caused by a lawfully prescribed drug with prescribed dosage
  • Defendant’s voluntary submission to a mental health facility for assessment after charged, and completion of any recommended treatment
  • Completion of substance abuse assessment, compliance with treatment, and 60 days of alcohol abstinence, as demonstrated by continuous alcohol monitoring (CAM)
  • Any other factor that mitigates the seriousness of the offense

Aggravating Factors

The opposite of mitigating factors, these facts make the court consider imposing a harsher sentence. There are 8 specific aggravating factors plus another “catch all” provision. Aggravating factors include things like reckless driving at the time of arrest and having a Blood Alcohol Concentration above .15. This is also the point where having a history of DWI offenses begins to have a significant negative impact. Driving with a revoked license and having a DWI conviction that is more than 7 years old are both separate aggravating factors. The full list of Aggravating factors includes:

1) Gross impairment with a BAC of .15 or greater

2) Especially reckless or dangerous driving

3) Negligent driving that led to a reportable accident

4) Driving by the defendant while defendant’s driver’s license is revoked (not impaired revocation)

5) Two or more prior moving violation convictions for which at least 3 points are assigned, or for which person is subject to revocation, if the convictions occurred within 5 years of the date of offense for which defendant is being sentenced; OR one or more prior Driving While Impaired conviction outside of 7 years

6) Conviction under N.C.G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension

7) Conviction under N.C.G.S. 20-141 of speeding by the defendant by at least 30 mph over the legal limit

8) Passing a stopped school bus in violation of N.C.G.S. 20-217

9) Any other factor that aggravates the seriousness of the offense (catchall)

In most cases, those without grossly aggravating factors, a judge will be asked to determine whether or not the mitigating factors “substantially outweigh” the aggravating factors. Having even one prior DWI offense, even if it was from years ago, automatically triggers an aggravating factor that requires a mitigating factor to offset.

Grossly Aggravating Factors

These are a list of four factors that the law deems especially severe. While the law allows judges some flexibility when sentencing based on mitigating and aggravating factors, the presence of grossly aggravating factors can severely limit their discretion. They are:

  • 1) Prior conviction for impaired driving offense if:
    • Conviction occurred within 7 years before the date of offense; or
    • Conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with present sentencing; or
    • Conviction occurred in district court, case appealed to superior court, appeal withdrawn, and new sentencing hearing not held
  • 2) Driving by defendant at time of the offense while defendant’s driver’s license was revoked under 20-28, i.e. an impaired driving revocation
  • 3) Serious injury to another person caused by the defendant’s impaired driving at the time of offense
  • 4) Driving by the defendant while:
    • Child under 18;
    • Person with mental development under 18;
    • Person with physical disability preventing unaided exit from the vehicle


While all of these factors are severe, the one most impacted by a person’s driving record it the first one. Any prior conviction for DWI that is within the last 7 years is a grossly aggravating factor. It is important to note that each individual DWI conviction within the last 7 years counts as an independent grossly aggravating factor. For example, if a person has had three DWI convictions within the last 7 years, and is convicted of a fourth, that person will have three separate grossly aggravating factors based on their past driving record alone.

As stated above, these factors play a critical role in determining how harsh the punishment for a DWI conviction is. It is a complex body of law that requires a skilled and experienced attorney in order to ensure the best result in a given case.