Prison or Jail Time After Conviction of Charlotte DWI
First, the good news. Unless you are convicted of a serious DWI where you caused an accident with injury, you are NOT usually facing jail or prison time from a NC DWI. Most of our clients are first time DWI offenders and, if found guilty or plea, will be looking at a fine, court costs, community service, completion of recommended treatment, and loss of license for one (1) year, subject to a limited driving privilege (LDP). The most damaging part of a DWI and the reason we recommend hiring counsel is that a conviction or plea will result in a permanent criminal record. Under existing law, it is extremely hard to get a conviction for DWI expunged, and it must be from at least 15 years ago. No one who practices DWI defense expects this situation to change for the foreseeable future. In fact, any new laws passed by the legislature typically result in stricter enforcement and harsher penalties. There are certain circumstances that result in mandatory incarceration sentences. We will highlight those punishment levels shortly. The other good news is that a newly passed law mandates any misdemeanor DWI conviction will be served in local jails, not statewide prisons. The company you keep changes dramatically in prison although you would not want to bring your jail friends home to meet mother either.
NC DWI is a Misdemeanor, Not a Felony
Most people fear that a DWI is a felony. A first offense DWI is NOT a felony unless you seriously injure or kill someone in an accident. The difference between a misdemeanor DWI and a felony DWI is an accident with injury. That’s why I always stress to people not to have any passengers in their car if they have been drinking. Many times, someone who is impaired will be in a single vehicle accident. They will hit a median or run off the road and strike a barrier or sometimes even a tree. If it is just them in the car, the accident will be an “aggravator” for sentencing purposes, but they still are probably not facing any time in jail. However, if they have an accident with someone else in the car or truck and that person is injured, what was a misdemeanor quickly morphs into a felony DWI. Of course, even if you are alone, you will be charged with felony DWI if you strike another vehicle on the road and cause serious injury or death.
Punishment levels that require active DWI jail time
There are three (3) punishment levels, all involving grossly aggravating sentencing factors, where a misdemeanor DWI conviction will result in mandatory time behind bars:
Aggravated Level One Punishment. – A defendant may be fined up to ten thousand dollars ($10,000) and shall be sentenced to a minimum imprisonment term of not less than 12 months and a maximum term up to 36 months (and) shall not be eligible for parole. The term of imprisonment may be suspended only if a special probation condition is imposed to require the defendant to serve at least 120 days. If placed on probation, the judge shall require the defendant (i) to abstain from alcohol consumption for a minimum of 120 days to a maximum of the term of probation, as verified by a continuous alcohol monitoring system, and (ii) to obtain a substance abuse assessment and the education or treatment required for the restoration of a drivers license and as a condition of probation.
Level One Punishment. – A defendant may be fined up to four thousand dollars ($4,000) and shall be sentenced to a minimum imprisonment term of not less than 30 days and a maximum term of not more than 24 months. A judge may reduce the minimum term of imprisonment required to not less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system for a period of not less than 120 days. If the defendant is monitored on an approved continuous alcohol monitoring system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 120-day monitoring requirement for probation.
Level Two Punishment. – A defendant may be fined up to two thousand dollars ($2,000) and shall be sentenced to a minimum imprisonment term of not less than seven days up to a maximum term of not more than 12 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least seven days or to abstain from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system. If the judge suspends all active terms of imprisonment, then the judge must also impose as an additional condition of special probation that the defendant complete 240 hours of community service. If the defendant is monitored on an approved continuous alcohol monitoring system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 90-day monitoring requirement for probation.
DWI jail time to be served in jail or prison
The General Assembly recently streamlined DUI laws to determine when a defendant given an active sentence for a misdemeanor DWI conviction will serve their imposed time in jail or prison. Now, after January 1, 2015, defendants sentenced to imprisonment for misdemeanor impaired driving will serve that time in a local confinement facility (jail) rather than in prison, regardless of the length of the sentence. This is an important and clarifying change in DWI law. Previously, a person convicted, even for a first DUI offense, could be sentenced to serve in state prison rather than a local jail. With this change in DWI law, all misdemeanor DWI sentences will be served in jails, unless the judge allows for continuous alcohol monitoring and/or inpatient treatment credits. The new law is G.S. 15A-1352(f), which provides that a defendant given a sentence of imprisonment of any duration for impaired driving under G.S. 20-138.1, other than imprisonment required as a condition of special probation, must be committed to the Statewide Misdemeanant Confinement Program (SMCP). Under this new program, the North Carolina Sheriffs’ Association has to identify space in local jail facilities available for misdemeanor defendants. Initially, this program was not available to misdemeanor impaired driving (DWI) sentences of greater than 180 days. With this change, DWI misdemeanor defendants will be permitted to serve their sentences in a local jail, instead of prison, although the jail may not be located in the county of their conviction.
How long can a period of probation be imposed?
Under NC DWI law, a judge may sentence a defendant to up to five (5) years. And, there are no special findings required to impose a probationary period of that length. See N.C.G.S. 15A-1342(a). This special rule for DUI cases is different from the traditional length-of-probation rules that normally apply to Structured Sentencing offenses. In those cases, special findings are required in order to assess longer or shorter periods of punishment. DUI cases are treated differently as there are no minimum periods of probation mandated. However, any probation period imposed must be sufficiently long enough to allow the defendant to satisfy the minimum requirements of a suspended DWI sentence.
Do “good time” credits apply to DWI jail time?
Both yes and no. DUI defendants serving active jail or prison terms can be given so called “good time” credits based on a “day for day” system. This means that they are awarded a reduction in time at the rate of one day for each day served without a violation of inmate rules. Such credits can be awarded regardless of where the sentence is served (jail or prison). However, any earned credit for “good time” cannot reduce a defendant’s ultimate DWI sentence below the statutory mandatory minimum for the level imposed. Additionally, as discussed further below, DWI defendants serving imprisonment as a condition of special probation are not allowed to receive good time credits. And finally, there is no “good time” credit allowed to reduce the term of imprisonment for defendants serving an Aggravated Level 1 DWI sentence.
Under a “special probation” sentence, a court may suspend the term of imprisonment and place a DWI defendant on probation. As part of this hybrid sentence, a defendant is required to serve some period of imprisonment. For misdemeanor impaired driving sentences imposed after January 1, 2015, imprisonment imposed as a special probation condition must be served in a designated local confinement (jail) or treatment facility whether the imprisonment is continuous or non-continuous under amended N.C.G.S. 15A-1351(a). The purpose of this change is to try to control, or even possibly reduce, the State’s cost of confinement. Jail rates are substantial, but prison costs are even more exorbitant given the higher security requirements. Also, most agree that prisons should be reserved for truly violent and dangerous criminals, not persons who made a bad choice to drive after drinking.