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Holiday Drinking: 14 Factors That Can Aggravate A DWI Charge

Holiday Drinking: 14 Factors that Can Aggravate a DWI Charge

According to the Centers for Disease Control and Prevention, someone dies from an alcohol-related automobile accident every 51 minutes in the United States. It should go without saying that drinking and driving is never a good combination. It’s even more important to remember during the holidays travel increases 54 percent from Thanksgiving to New Year’s. Being charged with a DWI is damaging on its own, but there are 11 factors that can impact the charge and possibly result in a much more severe sentence.

Drunk driving attorneys know all too well the DWI statistics that hover over alcohol-related charges occurring from November to January.  According to the National Highway Traffic Safety Administration, 37,133 people died in traffic crashes in 2017 in the United States (latest figures available), including an estimated 10,874 people who were killed in drunk driving crashes involving a driver with an illegal BAC (.08 or greater).

DWI convictions in North Carolina fall into one of several sentencing levels, with Level 5 being the least severe and Aggravated Level 1 being the most severe. When sentencing someone convicted of DWI, a judge will weigh three sets of factors: aggravating, grossly aggravating and mitigating.

Aggravating Factors

Though not as devastating as grossly aggravating factors, aggravating factors can result in a higher sentencing level. These factors include:

  1. Passing a stopped school bus
  2. Conviction for driving at least 30 miles over the legal speed limit
  3. Two or more prior convictions for a driving offense, such as reckless or dangerous driving, when at least three license points were given within the five years before the DWI offense
  4. Conviction for a DWI that occurred more than seven years before the current DWI offense
  5. Conviction for speeding in an attempt to evade getting caught
  6. Extreme impairment (blood alcohol concentration of .15 or more)
  7. Negligent driving leading to a reportable accident
  8. Especially reckless or dangerous driving.
  9. The defendant’s license was suspended/revoked for a non-DWI related reason
  10. Any other factor that aggravates the seriousness of the offense

Grossly Aggravating Factors

The presence of “grossly aggravating” factors are severe strikes against the defendant, and even one grossly aggravating factor usually means active jail time. The presence of one, two or three grossly aggravating factors will result in a sentence of Level 2, Level 1 or Aggravated Level 1, respectively. These factors include:

  1. The defendant’s license was suspended/revoked because of a prior DWI related offense
  2. Serious injury to another person caused by the defendant’s impaired driving
  3. Prior DWI conviction(s) within seven years before the current DWI offense
  4. Having a passenger who (i) is under 18, (ii) has a mental disability and/or (iii) has a physical disability that prevents an unaided exit from the vehicle

The presence of one grossly aggravating factor (Level 2) can mean at least 7 days in jail, and a fine of up to $2,000.   The presence of two grossly aggravating factors (Level 1) can mean at least 30 days in jail, and a fine of up to $4,000.  If three or more grossly aggravating factors are present (Level A1), then the defendant shall serve at least 120 days in jail and could be fined up to $10,000.   Also, a defendant will be sentenced at a Level 1 with only one grossly aggravating factor if a minor was in the car at the time of the offense.

Mitigating Factors

Mitigating factors are circumstances that can possibly work in the defendant’s favor. A judge can use these to potentially reduce the defendant’s sentence. Mitigating factors include:

  • Having a safe driving record for the past five years (meaning no convictions for convictions for traffic offenses which carry at least 4 points)
  • Voluntarily submitting to a mental health assessment at a mental health facility and completing the recommended treatment program(s)
  • Having a breath/blood alcohol concentration of .09 or less  (the legal limit is .08)
  • Otherwise safe and lawful driving at the time of the DWI offense
  • Any impairment by a lawfully prescribed drug(s) that was taken within the prescribed dosage
  • Any other factor which mitigates the seriousness of the offense

Sentencing/Punishment for DWI

Mitigating factors, as well as any aggravated aggravating and grossly aggravating factors, will be considered by the judge along with all of the evidence.   If the judge finds that there are no grossly aggravating factors present, and that the mitigating factors outweigh the aggravating factors, the defendant will be sentenced at a Level 5 punishment – meaning the defendant will generally have the option of serving 24 hours in jail, or doing 24 hours of community service.  If the judge finds that no grossly aggravating factors are present, but that the aggravating factors counterbalance or outweigh the mitigating factors, the defendant will be sentenced at a Level 4 or 3 – meaning the defendant will generally have the option of either serving 48 or 72 hours in jail or doing community service, respectively. If the judge finds the presence of 1, 2 or 3+ grossly aggravating factors, the defendant will be sentenced at Level 2, 1 or Aggravated Level 1, respectively – and likely receive active jail time.

Any conviction for DUI in North Carolina will result in a defendant’s license being revoked for at least one year.  But if a defendant is only sentenced at a Level 3, 4 or 5 punishment (no grossly aggravating factors), then a judge can grant a “limited driving privilege” which will allow the defendant to drive during business hours to and from work/school.  However, before a defendant is eligible for a limited driving privilege, the defendant must undertake a substance abuse assessment and comply with any treatment recommendations – typically at least 20 hours counseling.


The winter season is a time for celebration, not tragedies. Make the appropriate plans now to enjoy the holidays responsibly and avoid any DWI-related circumstances at all costs. If you or someone you know needs an experienced drunk driving attorney over the holidays, contact us for a free consultation.


Drunk Driving Fatality Statistics from the Foundation for Advancing Alcohol Responsibility

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