Impaired Driving Sentencing (Part III)
Structured Sentencing for Drunk Driving in NC (Part III)
In Part I, located HERE, we briefly discussed Structured Sentencing for impaired driving offenses in North Carolina. In NC, a conviction for impaired driving is sentenced based on the level of the offense. These levels include Aggravated A1, 1, 2, 3, 4 and 5. The specific factors of each case will determine which level is the appropriate level for sentencing. The Court will look at the factors of the case to determine the existence of Grossly Aggravating Factors, Aggravating Factors and Mitigating Factors. The Court will then impose the appropriate sentencing level.
In Part II, located HERE, we discussed Structured Sentencing again. This time, we looked at some universal punishments, including court costs, fines, assessment and license revocations that apply to every DWI conviction. We then looked at the standard sentencing ranges based on the sentencing level imposed by the Court.
In Part III, we will now address Suspended Sentences for Impaired Driving Offenses in North Carolina.
A Suspended Sentence is a special situation in which the Court imposes an Active sentence, or spoken plainly, required jail time. However, the Court has the power to suspend, or hold off on making the person serve the active sentence, and instead require the person to serve a period of probation instead. Under North Carolina Law, the Court may suspend Impaired Driving sentences if certain conditions are met.
Constant Alcohol Monitoring
As part of a suspended sentence, the court may impose a condition known as Continuous-Alcohol Monitoring. Commonly referred to as “CAM,” this condition refers to a program in which a person wears a small electronic device that is constantly monitoring the person’s skin to determine whether that person has consumed any alcohol. These programs are offered by private companies at an additional cost to the defendant. The private company is provided with constant updates; and they will provide a final report showing the alcohol consumption of the person monitored during the period that person wears the device.
For “Tier II” sentences, the Court may replace a minimum period of jail time with an equal amount of community service. The Community Service requirement gives the option to a person convicted of a lower sentencing level DWI to complete a period of volunteer hours with a local non-profit organization. The court will arrange the community service through the Department of Probation, but it may be possible to complete this requirement pre-trial. An experienced DWI Defense attorney can explain the pros and cons of this option in more detail.
A final option authorized by NC law is to replace a period of active jail time with time spent at a residential alcohol or drug treatment facility. Again, speaking with an experienced DUI lawyer will help illustrate the best plan of action for resolving a charge of impaired driving in North Carolina.
Again, I like to divide DWI Sentences into two tiers. The Court can impose special suspended sentences based on the sentencing level of a DWI conviction.
TIER I SENTENCES
As we discussed, the Court will impose a Tier I sentence if the existence of one or more Grossly Aggravating Factors is determined. Once the Court determines that Grossly Aggravating Factors exist, the Sentencing Judge will impose a sentencing level of either Level A1, 1, or 2 based on the kind or amount of these GAF’s.
For Level A1 sentences, the NC law specifically requires day for day punishment. This means that most active jail time sentences must be served for the total amount of time sentenced. This is opposed to other sentencing levels, where the Department of Corrections may reduce the time of an active sentence based on “good time.”
For an A1 DWI, the convicted person will usually serve the full sentence. However, the Statute does impose an option for “early release” on parole (commonly referred to as Post Supervision Release “PSR”). Under the sentencing statute for DWI’s, an active A1 sentence is reduced for 4 months of PSR so long as that person successfully completes “CAM” during those 4 Months
While it is rare, the sentencing judge may also impose a suspended sentence for an A1 level DWI. There is still a minimum required period of active jail (or rehab) time of 120 Days. A person granted this suspended sentence must also complete 120 days of CAM.
A Level 1 sentenced DWI may also be suspended. Here, the Court will require a minimum active jail (or rehab) sentence of 30 days. The person granted a suspended sentence will then serve a period of probation, typically 18 to 24 months.
A Level 1 DUI may also be reduced to a minimum of 10 days of active jail (or rehab) time if the person successfully completes 120 days of CAM in addition to the probationary sentence.
A Level 2 DWI is the lowest of the Tier I sentences. Accordingly, it offers the most options for the sentencing Judge. A Level 2 sentence may be suspended with a minimum period of active jail (or rehab) time of 7 days. Sometimes, an experienced DWI Defense Lawyer can get this active sentence to be served on weekends or some other more convenient schedule, such as a holiday weekend.
A Level 2 DWI may also qualify for a sentence with no active jail time. In this scenario, the person sentenced at Level 2 will need to complete 90 days of CAM. However, if the person is sentenced to a Level 2 DWI for a prior DWI conviction within the past 7 years (the GAF) and the prior was within the past 5 years, the Judge must also require that person to complete 240 hours of community service.
TIER II SENTENCES
Tier II Sentences include DWI convictions sentence as Level 3, 4, or 5. These lower level sentences typically incur a much lower minimum active jail requirement. The Court may order that in lieu of serving any active time, the person convicted of an impaired driving offense may instead complete community service hours equal to the minimum punishment level.
So, for a Level 3 sentence, that carries a minimum of 72 Hours of active jail time, the Court may suspend all active time, and instead require the person convicted of the DWI to complete 72 Hours of community service. Likewise, a Level 4 sentence may be suspended, with the person instead required to complete 48 hours of community service. A Level 5 DWI requires 24 hours of jail, but again this may be replaced with 24 hours of community service.
A major distinction for the lower tier sentences is often seen with the probationary sentence. Under NC Law, the sentencing Judge is required to impose unsupervised probation if certain factors exist. If those factors do not exist at the time, the Judge must require that supervised probation be transferred to unsupervised probation upon completion of certain requirements. Unsupervised probation eliminates the reporting requirement of supervised probation, and it also excuses the person subject to probation from paying the $40.00 monthly supervision fee.
One final caveat of DWI sentencing is that a person DOES NOT receive credit for the first 24 hours spent in custody pretrial. So, if a person is charged with impaired driving and cannot be released from custody until the next day, that person will not be able to use the first 24 hours in custody against any sentence.
There is no easy way to predict what punishment will a person charged with a DWI in North Carolina get. As these articles have shown, there are often many different options for sentencing a DUI.
Speaking with an Experienced DWI Attorney that will go through the specific factors of your case to develop a tailored sentencing approach that meets your needs can have a major impact on what sentence you receive. Many times, the knowledge of the DUI Defense Lawyer will enable a person charged with an impaired driving offense to act before sentencing to secure a better sentence.
As always, your Drunk Driving questions are best answered by speaking with an experienced DWI Defense Lawyer who can evaluate all of the information surrounding your particular situation. Every situation is unique, and therefore this general information is only a starting point.
The Law offices of Timothy Dugan offers free consultations for DWI Defense!
Contact us today to discuss your case.