North Carolina DWI Laws: FAQ

What is the legal drinking limit for drivers in North Carolina?

The blood alcohol limit in North Carolina is a 0.08 BAC, unless you are under the age of 21. If you are under the age of 21 and your BAC is 0.02 or higher then you are legally intoxicated. Additionally, the legal limit for commercial drivers is a BAC of 0.04 or above.

What are the DWI sentencing levels in North Carolina?

In North Carolina you can be sentenced to a level 1, 2, 3, 4, or 5 DWI depending on the facts and circumstances of your case. If you have two or more grossly aggravating factors you will be given a level one sentence. If there are no grossly aggravating factors, the judge will weigh aggravating and mitigating factors to determine if the defendant should be sentenced under level three, four, or five. If the aggravating factors outweigh the mitigating factors, level three punishment is imposed. If the aggravating and mitigating factors are equal, level four punishment is imposed.

Can a DWI be a felony in North Carolina?

Yes. In North Carolina there are two types of DWI's that are felonies.

1)Felony death by motor vehicle, which a person is charged with if someone dies in an accident that was caused by a drunk driver. Felony death by motor vehicle can also be charged as second degree murder.

2) Habitual DWI, which a person is charged with if it is their fourth DWI conviction within seven years. A plea or verdict of guilty of habitual DWI requires a judge to sentence you to no less than one year in the Department of Corrections. That sentence cannot be suspended and is the absolute minimum sentence. Most judges give a much longer sentence than the minimum for habitual DWI.

Can I refuse a Chemical Test when stopped for DWI in North Carolina?

No. According to North Carolina’s implied consent laws drivers are deemed to have consented to breath, urine, and blood alcohol tests when pulled over on reasonable suspicion of DWI. If you refuse one of these tests your driver’s license may be suspended by the DMV for up to a year. This suspension is immediate and completely separate and distinct from any court imposed criminal penalties.

Is drinking & driving a crime in North Carolina?

It is not a crime to drink and drive in North Carolina. However, you may not legally drive if your Blood Alcohol Content (BAC) has exceeded the maximum percentage allowed under Delaware law.

What are the aggravating factors the Judge weighs to determine my DWI sentence in North Carolina?

Aggravating Factors (that may increase my sentence) include:

· BAC of 0.15 or greater,

· Speeding (over 30 mph over speed limit),

· Especially Reckless or Dangerous Driving,

· Passing by a School Bus,

· Trying to Evade Arrest, and

· Negligent driving that led to a reportable accident, and

· Driving by the defendant while his driver's license was revoked, and

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

What are the grossly aggravating factors the Judge weighs to determine my DWI sentence in North Carolina?

Grossly Aggravating Factors (may increase my sentence):

  • A prior DWI Conviction within 7 years of the first,

  • Driving with a DWI Suspended/Revoked driver's license,

  • Serious injury to another person caused by the defendant's impaired driving, and

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

What are the mitigating factors the Judge weighs to determine my DWI sentence in North Carolina?

Mitigating Factors (that may help to lessen my sentence) include:

  • BAC of 0.09 or less,

  • Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant,

  • Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties,

  • A safe driving record,

  • 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,

  • Voluntary submission to a mental health facility for assessment after charged with DWI,

  • Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system, and

  • Any other factor that mitigates the seriousness of the offense.

What happens after a misdemeanor DWI conviction in North Carolina?

After a conviction of misdemeanor DWI, the judge must hold a separate sentencing hearing and determine the appropriate level of punishment. At that hearing, the judge determines if there are any grossly aggravating factors. These factors are prior DWI convictions, driving while license revoked for DWI or alcohol related offenses, serious injury to another person, or driving with a child under the age of 16 years old.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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