DWI SENTENCING IN DISTRICT COURT— G.S. 20-179.
Applies to convictions of:
G.S. 20-138.1 (impaired driving)
G.S. 20-138.2 (impaired driving in a commercial vehicle)
Second or subsequent conviction of G.S. 20-138.2A (operating a commercial vehicle after
Second or subsequent conviction of G.S. 20-138.2B (operating school bus, school activity bus, or child
care vehicle after consuming)
The judge must hold a sentencing hearing to determine if there are aggravating or mitigating factors that
affect the sentence.
The state must prove beyond a reasonable doubt that an aggravating factor exists. The defendant must
prove by a preponderance of the evidence that a mitigating factor exists.
Before the hearing, the prosecutor must make all feasible efforts to secure the defendant’s full record of
traffic convictions, and must present to the judge that record for consideration in the hearing.
The judge must first determine whether there are any grossly aggravating factors in the case based upon the
evidence presented at trial and in the hearing.
Grossly Aggravating Factors (if 1 GAF, Level 2 DWI. If 2 GAFs or more, Level 1 DWI):
A prior conviction for an offense involving impaired driving1 if:
a. The conviction occurred within seven years before the date of the offense for which the
defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently
being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the
appeal has been withdrawn or the case has been remanded back to district court; and a new
sentencing hearing has not been held pursuant to G.S. 20-38.7.
Each prior conviction is a separate grossly aggravating factor. G.S. 20-179(c)(1).
DWLR at the time of the offense under G.S. 20-28, and the revocation was an impaired
driving revocation under G.S. 20-28.2(a).2