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Aggravating vs. Mitigating

– Criminal Defense lawyer

In North Carolina, regardless of what level of DWI you are convicting of, state law mandates a revocation of your Driver’s License for at least one year from the date of conviction. However, for levels 3 through 5, the court often suspends jail sentences if the driver agrees to complete community service, submit to a DWI Assessment, complete the level of treatment required by the NC DWI assessment, and pay all fines, fees and court costs related to the DWI arrest and conviction. A Level 3 through 5 are most commonly assigned based on the aggravating and mitigating factors surrounding a conviction. Learn differences of Aggravating vs. Mitigating

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Grossly Aggravating Factors

When considering punishment levels for DWI, the two negative factors considered are Grossly
Aggravating Factors and Aggravating Factors. Grossly Aggravating Factors are considered the
most serious conditions which occurred during a DWI arrest.
Factors considered to be Grossly Aggravating include:
1. A prior conviction for an offense involving impaired driving (DUI or DWI) if:
a. The DWI conviction occurred within seven years before the date of the offense for which the
defendant is being sentenced; or
b. The DWI conviction occurs after the date of the offense for which the defendant is presently
being sentenced, prior to or simultaneously with the present sentencing. Each prior conviction
is considered a separate grossly aggravating factor by the State of North Carolina.

2. Driving by the defendant at the time of the DWI offense while his driver’s license was
revoked under G.S. 20-28, and the revocation was an impaired driving (DWI or DUI) revocation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 DWI offense.

4. Driving by the defendant while a child under the age of 16 years was in the vehicle at the
time of the DWI offense.

Aggravating Factors

Aggravating Factors “aggravate” or increase the seriousness of the offense but are not considered quite as serious as the above factors.

Aggravating Factors are:
1. Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.16 or more within a relevant time after driving.

2. Especially reckless or dangerous driving during the DWI offense.

3. Negligent driving that led to a reportable accident during the DWI offense.

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 (DWI or DUI) 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 during the DWI arrest.

7. Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit during the DWI offense.

8. Passing a stopped North Carolina school bus in violation of G.S. 20-217.

9. Any other factor that aggravates the seriousness of the DWI offense.

Mitigating Factors

Mitigating Factors are factors that a judge can consider during sentencing which are in your favor and “mitigate” the seriousness of a DWI offense.

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 driving.

2. Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant at the time of the DWI charge.

3. Driving at the time of the DWI 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 DWI 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. (Often people do not know that they may be charged and convicted of DWI resulting from taking prescribed medication, taken as prescribed. However, this type of DWI charge is just as serious in some ways as a DWI charge because of alcohol or street drugs.

6. The defendant’s voluntary submission to a mental health facility for DWI alcohol and drug abuse 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 DWI substance abuse treatment.

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