DWI Aggravating and Mitigating Factors
Levels are determined by weighing aggravating and mitigating factors, or by finding the presence of grossly aggravating factors.
The following are the various statutory factors (N.C.G.S 20-179.
Grossly Aggravating Factors:
- A prior DUI conviction within 7 years of the date of the new DUI offense.
- An intervening DUI conviction.
- The offense was committed while the defendant’s license was revoked for a prior DUI.
- The offense resulted in a serious injury to another person.
- A child under the age of 16 was in the car at the time of the offense.
Aggravating Factors:
- A BAC of 0.15 ore more.
- Especially reckless or dangerous driving.
- Negligent driving that led to a reportable accident.
- Two ore more prior convictions of a motor vehicle offense not involving impaired driving for at which 3 points were assigned.
- Attempting to elude apprehension.
- Speeding by at least 30 miles per hour over the legal limit.
- Passing a stopped school bus.
- Or any other aggravating factor that increases the seriousness of the offense.
Mitigating Factors:
- Slight impairment, meaning a BAC that did not go over 0.09.
- Driving was otherwise safe at the time of impairment.
- A safe driving record
- Impairment was the result of a lawfully prescribed drug.
- Voluntary submission to a mental health facility for an assessment.
- Completion of a substance abuse assessment, and maintaining 60 days of monitored, abstinence from alcohol.
- Any other factors that mitigate the seriousness of the offense.
Refusal to Submit to a Breathalyzer Test
If the driver refuses to submit to a test of their BAC, the driver may be faced with a separate charge of refusing to submit to a breath test. The penalty for refusal involves an immediate 30 day suspension of a license and an additional one year suspension of of the license. The penalty for refusing to submit to a BAC exam can be imposed even if the driver is never convicted or is found not-guilty of the DWI charge.
A driver who has refused to submit to the exam has a right to a hearing with the DMV prior to the one-year suspension of the license to determine whether the suspension is proper.
At that hearing, the driver can introduce evidence that he or she was not properly notified of his rights, was not notified of the penalties for refusal, was provided with false information about how the evidence would be used, or was provided with false information regarding the presumption of guilty. Finally, the DMV must show that the driver willfully refused the chemical testing.
If you have any questions about how to defend your rights in a DUI case, or need an aggressive and thorough attorney to represent you in your DUI/DWI case, call (919) 352-9411, weekdays, weekends, evenings, or holidays.
