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DWI Sentencing Overview

DWI Sentencing Overview. Jamie Markham Associate Professor of Public Law & Government May 6, 2016. DWI Sentencing G.S. 20-179, not Structured Sentencing Applies to: DWI Commercial DWI

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DWI Sentencing Overview

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  1. DWI Sentencing Overview Jamie Markham Associate Professor of Public Law & Government May 6, 2016

  2. DWI Sentencing • G.S. 20-179, not Structured Sentencing • Applies to: • DWI • Commercial DWI • Second/subsequent conviction for operating a commercial vehicle, school bus, child care vehicle, emergency or law enforcement vehicle after consuming

  3. DWI Sentencing • Six levels • Determined by: • Grossly aggravating factors • Aggravating and mitigating factors

  4. Grossly Aggravating Factors • Prior DWI conviction within 7 years • Driving while license revoked for DWI • Causing serious injury to another • Driving with the following in the car: • A child under 18 • A person with the mental development of a child under 18 • A person with a physical disability

  5. Aggravating Factors • Gross impairment (BAC 0.15+) • Especially reckless/dangerous driving • Prior motor vehicle offenses or prior DWI occurring more than 7 years ago • Any other factor that aggravates the seriousness of the offense

  6. Mitigating Factors • Slight impairment (BAC < 0.09) • Safe driving aside from impairment • Safe driving record • Voluntary submission to substance abuse assessment and treatment • Completion of 60 days of Continuous Alcohol Monitoring (CAM) • Any other mitigating factor

  7. 3 x GAF Aggravated Level One 2 x GAF or 1 x GAF for driving with impermissible person in vehicle Level One Conviction 1 x GAF other than driving with impermissible person in vehicle Level Two Level Three Agg. > Mitig. No Agg. or Mitig., or Agg. = Mitig. Level Four No GAF Level Five Mitig. > Agg.

  8. Level Five • Imprisonment: • Minimum of not less than 24 hours • Maximum of not more than 60 days • If suspended must include at least: • 24-hour split, or • 24 hours community service • Preference for unsupervised probation • Parole [theoretically] possible

  9. Level Four • Imprisonment: • Minimum of not less than 48 hours • Maximum of not more than 120 days • If suspended must include at least: • 48-hour split, or • 48 hours community service • Preference for unsupervised probation • Parole [theoretically] possible

  10. Level Three • Imprisonment: • Minimum of not less than 72 hours • Maximum of not more than 6 months • If suspended must include at least: • 72-hour split • 72 hours community service • Preference for unsupervised probation • Parole [theoretically] possible

  11. Level Two • Imprisonment: • Minimum of not less than 7 days • Maximum of not more than 12 months • If suspended must include at least: • 7-day split, or • 90 days Continuous Alcohol Monitoring (CAM) • Parole possible

  12. Level One • Imprisonment: • Minimum of not less than 30 days • Maximum of not more than 24 months • If suspended must include at least: • 30-day split, or • 10-day split + 120 days of CAM • Parole possible

  13. Aggravated Level One • Imprisonment: • Minimum of not less than 12 months • Maximum of not more than 36 months • 4 months post-release supervision • If suspended must include at least: • 120-day split + 120 days of CAM • No parole

  14. DWI Probation • Five year maximum probation period • Special probation (split sentence) rule: • No more than ¼ maximum authorized punishment • Served in the local jail or treatment facility • No sentence reduction credits for splits • Preference for unsupervised probation for Levels Three, Four, and Five

  15. DWI Active Sentences • Place of confinement • Sentence administration

  16. Place of Confinement • Statewide Misdemeanant Confinement Program (SMCP)

  17. Sentence Administration • Minimum and maximum • Sentence reduction credit (Good Time) • Parole

  18. Sentence Administration • Level One

  19. Level One DWI 30 days to 24 months 0 30 days 12 months 24 months

  20. 24 months? Level One DWI 30 days to 24 months 30 days 24 / 5 = 4.8 24 months Parole eligible 2.4 0 30 days 4.8 months 12 months 24 months

  21. Level One DWI 30 days to 24 months G.S. 20-179(p) DART-Cherry / Black Mountain Parole eligible 0 30 days 12 months 24 months

  22. Level One DWI 30 days to 24 months Parole eligible 0 30 days 12 months 24 months

  23. Level One DWI 30 days to 24 months Full sentence served in 12 months Parole eligible after 30 days Level One DWI 24 months to 24 months Full sentence served in 12 months Parole eligible after 2.4 months Parole eligible 0 30 days 12 months 24 months

  24. Aggravated Level One DWI 12 months to 36 months 0 12 months 32 months 36 months

  25. Aggravated Level One DWI 12 months to 36 months Release onto PRS after 32 months No sentence reduction credit No parole 36 months to 36 months Release onto PRS after 32 months 12 months to 12 months Release onto PRS after 8 months

  26. Expected Aggravated Level One average sentence: 31 months Average Level One actual prison time: < 7 months Expected Aggravated Level One prison time: 8.7 months

  27. Other DWI Rules • No jail credit for first 24 hours of pretrial confinement • Judge may order active sentence served on weekends • No consolidation of multiple DWIs

  28. Questions

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