Episode 32: DWI Sentencing Levels in North Carolina (2 of 3)

We continue our three-part series on DWI sentencing in NC. In this episode we discuss in detail the six sentence levels used in misdemeanor DWI sentencing in NC and the specific courtroom/criminal consequences of each sentence level.

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Transcript:

Hello, fellow freedom fighters and welcome to another episode of the NC DWI Guy podcast. Today, we are going to continue on our sentencing journey, we’re doing a three-part series on DWI sentencing in North Carolina. Last time we focused on the sentencing factors that a judge uses in setting a DWI sentence. Today, we’re going to be talking about the specific consequences criminally at each sentence level, so we’re going to go through levels A1 and then One through Five on today’s episode.

So kind of turning to the second objective of today’s learning session, we are now going to talk about the different sentence levels that exist. So we’re going to start out at the most serious sentence levels and then kind of work our way down to the least serious sentence level of a Level Five.

So we’ll start off at the Aggravated Level One or what’s also known as a Level A1 sentence, this is defined under North Carolina General Statute 20-179F3. So the consequences of a Level A1 sentence are a maximum fine of $10,000, a statutory maximum jail time of 36 months and then a true maximum of 32 months. So under the statute it says that the maximum jail time of a Level A1 is 36 months, the true maximum is actually only 32 months because an A1 active sentence defendant will complete their sentence four months early and then they’re required to have a continuous alcohol monitor on for 120 days. So there’s basically like a kind of probationary release that occurs at the end of that kind of maximum sentence. There is no good time credit for a Level A1. And what does that mean? Well, basically if your client is an A1 and they are sentenced to a 24 month sentence, then they’re serving 24 months, that is the length of time that the person is going to be in jail, it’s for a period of 24 months.

Under 20-179 (k), inpatient treatment can be credited against jail time in misdemeanor DWI sentencing. So this sentence can be reduced. And I think my slide is missing up here a little bit so let me kind of click through here, sorry about that. But you can use inpatient treatment to replace the jail time at a Level A1. So if you have a client that is sentenced to a year under a Level A1 sentence and they’ve done six months of inpatient treatment, you can ask for that inpatient treatment to be credited against the required jail sentence. I’ve had number of clients that have basically not done any jail time whatsoever on a Level A1 because they did the kind of sufficient amounts of inpatient treatment that the judge ordered in terms of jail time and then credited that against the jail sentence.

So the statutory minimum jail time at a Level A1, the maximum again is 36 months but kind of actually translates to a 32 month maximum, the statutory minimum jail sentence is 12 months. However, the true minimum sentence is 120 days in jail plus 120 days of continuous alcohol monitoring plus probation. So you could get an active minimum sentence of 12 months, but you could also get a suspended true minimum sentence of 120 days in jail and 120 days of CAM. So I’ve had a number of clients that have worn a continuous alcohol monitor for 120 days and also done 120 days of inpatient treatment and not received any jail time under the Level A1 sentence. This is something to note as we kind of compare Level A1 sentencing with Level One and Two sentencing, but the statute is silent on an A1 sentence as to how much pretrial credit a judge can give for a continuous alcohol monitoring at a Level A1.

So again, we’ll see in Levels One and Two that we’ll talk about here in just a minute, that you can only wear a continuous alcohol monitor before sentencing and still receive credit for that for up to 60 days under both Level One and Level Two. You can only get 60 days of pretrial credit towards the required amount of CAM time at a Level A1 according to the statute because there’s no prohibition of this, you could have worn the continuous alcohol monitor for 120 days prior to sentencing and get 120 days of credit. So there’s no requirement that there be only a certain amount of pre-trial time of the CAM device under an A1 sentence.

So moving on to a Level One. At a Level One, this is 20-179 (g), the maximum fine is $4,000, the statutory maximum jail time is 24 months, the statutory minimum jail time is 30 days. That 30 day minimum sentence is again deceiving because the true minimum sentence is 10 days in jail plus 120 days of continuous alcohol monitoring device plus probation. So, while the statute… Again, in theory, the minimum sentence is 30 days, the true minimum sentence is 10 days in jail plus 120 days of continuous alcohol monitoring. So make sure that you’re clear with your client about that when they’re looking at Level One sentencing. This, like we had just talked about moments ago in regards to the 120 days of CAM should your client try to go that route in asking for a minimum 10 day sentence plus 120 days of CAM, the client can only get 60 days of pretrial credit towards the 120 days of continuous alcohol monitoring. So there is a cap of how much pretrial credit you can get on CAM at a Level One if you’re hoping to use that to minimize the jail time.

Just like with a Level A1, the jail time can be replaced with inpatient treatment. So if your client does a 30 day inpatient program, if you’re asking for the minimum sentence of 30 days to be replaced with inpatient treatment, you can do that, and if the judge grants that then your client can do zero jail time. If your client does 10 days of inpatient treatment and 120 days of continuous alcohol monitoring, that would be another way for a judge to avoid giving any jail time under the sentencing structure of 20-179. Unlike a Level A1, at a Level One, the client can receive good time credit for an active sentence. So what does this mean? Good time credit in North Carolina, you basically can get two days credit for every one day of good time served. So potentially if your client has a 12 month active sentence at a Level One, they could basically be released six months into that sentence. Basically at the six month period, assuming that they have served their good time, then they would be released at the six month mark.

Moving on to Level Two sentencing, this is statutorily laid out at 20-179 (h). The maximum fine at a Level Two sentence is $2,000, so that’s the statutory maximum fine. The statutory maximum jail time is 12 months, so the maximum jail time that a person can receive at a Level Two is 12 months in custody. The statutory minimum sentence at Level Two is seven days but there is a true minimum sentence just like at Level A1 and Level One that is not that kind of statutorily laid out as seven day minimum because a judge can impose zero days in jail if they require 90 days of continuous alcohol monitoring and probation.

So, just like you can avoid having a statutorily minimum sentence at a Level One by using CAM, at Level A1 by using CAM, again, if there’s 90 days of CAM then that can reduce the jail time at a Level Two to zero. So I have a lot of clients, a lot of Level Two clients that are going to be facing that sentence level that avoid jail time altogether by getting a continuous alcohol monitor for 90 days. And in all honesty, this is a much better rehabilitation sentence for a person. You have to spend 1200 bucks or 900 bucks, depending on how long you’ve got that CAM device on, thereabouts, to have the CAM, so you’re asking for somebody to put like their money where their mouth is, they’re making a financial investment and trying to better their life.

And if you’re really trying to combat repeat DWI offenders, making somebody go through a lengthy period of sobriety is a much more effective means than them serving a short jail sentence that is sending a very kind of limited message and then they come out and they can start consuming alcohol again. Maybe that’s a condition of probation, is that they abstain from alcohol, but this is a way of actually tracking that, of proving that, it’s going to be otherwise pretty difficult to prove whether or not a person has consumed alcohol.

Just like with a Level A1, a person can only get up to 60 days, oh, I’m sorry, just like with a Level One but not like a Level A1, a person under a Level Two sentence can only get 60 days of pretrial credit towards the 90 days of required continuous alcohol monitoring. So if you go in to a sentencing hearing at a Level Two, and your client has been wearing a continuous alcohol monitor for 90 days, they will still have to wear the monitor for an additional 30 days because they can only be given 60 days of pretrial credit. So what I will typically try to do is plan out with my client. If we know when the sentencing is going to occur, I try to get my client to put on the continuous alcohol monitor anywhere between 30 and 50 days prior to the sentencing hearing.

If my client is really trying to make a concerted effort of changing their life, of achieving sobriety, or we just want to kind of go the extra mile, I’ve had clients at a Level Two that walk into court with 120 days or 150 days of CAM just so they can show the judge, “I’m not just trying to do the bare minimum under the statute, I’m trying to show that I’m trying to change my life and I’m doing that one day at a time, but I’ve been doing this for five months, I’ve had sobriety for five months, I can prove that.”

So I’ve had clients that have worn it for longer, and that’s been helpful in terms of sentencing, and I’ve explained that to the client. But it’s one thing for the client to walk in with 150 days of continuous alcohol monitoring knowing that they can only get 60 days of pretrial credit, and it’s another thing when you walk in with 150 days of continuous alcohol monitoring and the client is expecting to be able to take the bracelet off and then they hear, “Oh, wait, you actually are going to have to do another 30 or another 60 days of CAM because I can only give you up to 60 days of pretrial credit.” So that’s why it’s important to really look at the statute 20-179 whatever sentence level your client falls at and make sure that you are very clear on what the sentencing procedures are going to look like.

If your client’s a Level Two because of a prior DWI conviction, so that’s the grossly aggravating factor that’s being used, and that prior conviction has occurred within the last five years, the judge must require 240 hours of community service to suspend all the jail time. So there’s actually a lot of complexity that is built into this particular component of the sentencing statute. So basically, again, if the grossly aggravating factor is a prior DWI, and that prior DWI not only occurred within the last seven years, but actually occurred within the last five, the judge has to require 240 hours of community service to suspend all the jail time. So if your client is looking to not serve any jail sentence, then they could do 90 days of CAM and 240 hours of community service.

But if they did 90 days of CAM and one day in jail, which would be allowed under that kind of true minimum sentence of CAM plus probation, normally plus zero days in jail, if they did one day in jail plus CAM, that would not be then suspending all the jail time and therefore my argument under the statute has been that, that alleviates the 240 hours of community service. 240 hours of community service is an absolute ridiculous amount of community service, and there’s no such kind of similar measure under Level A1 or Level One in terms of there being any mention of community service under those kinds of more serious sentence levels.

So for somebody to have to do 240 hours of community service, that is basically a full time job. Basically, if you’re working 40 hours a week for six weeks, a month and a half, you’re working 40 hours a week at community service, you’re going to be able to be finished in a month and a half. That’s just an absurd amount of community service. For anybody that’s trying to provide support for their family and be able to kind of meet all of these financial obligations that are coming under a Level Two sentencing, this just seems to be a very onerous requirement in terms of the total community service required.

So I have really tried to avoid that because I just think that no matter what any person’s intentions are in terms of getting 240 hours of community service done, unless your client has really sat down and mapped out, “How am I going to do 240 hours of community service?” That to me is not the right way to go. I’ve had many clients that have gone 90 days of CAM plus some sort of minimum jail time, or have just done the minimum seven days as opposed to trying to do 240 hours of community service because it is just an absolutely monstrous amount of community service required. Moreover, clients at a Level Two, like at a Level One can receive good time credit for an active jail sentence. So just like Level One sentencing, your client can receive good time. So basically, if they get a six month active sentence at a Level Two, they’re going to be probably serving three months in custody as long as they are getting good time credit for their sentence.

Level Three falls under 20-179, subsection i. The maximum fine at a Level Three punishment level is $1,000, the statutory maximum jail time at a Level Three is six months, the statutory minimum jail time at Level Three sentencing is 72 hours or three days in jail. That statutory minimum can be replaced at Level Three with 72 hours of community service, so either jail time or community service in the amount of 72 hours. The minimum can be replaced with inpatient treatment, so you can replace the minimum jail sentence with inpatient.

So if you have a client that basically says, “Look, I’ve got a drinking problem, I’ve got to go into an inpatient facility.” And goes in and does a 30 day inpatient program, don’t forget about that in the sentencing hearing. Say to the judge, “Your honor, my client has done above and beyond what he is required to at this sentence level because he recognized that he had a problem, he wanted to address that. He is asking in lieu of community service to be able to be given the minimum jail sentence of 72 hours, three days, and we’re asking for you to credit his inpatient program that he completed against that jail time.” And that way you basically eliminate the requirement for obviously jail, but also eliminate that requirement for what would normally be chosen of community service.

Again, if there was, for some reason, an active sentence given at a Level Three, I’ve only seen that one time at a Level Three, but if there’s an active sentence given at a Level Three, then the person can get good time credit. So let’s say you get a four month active sentence at a Level 3, then you’re going to be looking at basically 60 days of real time if the person is getting good time credit.

Level Four sentencing falls under 20-179 (j). At a Level Four, the maximum fine that can be imposed is $500, the statutory maximum jail time is 120 days in custody, the statutory minimum jail time that can be imposed is 48 hours in jail. So, again, just like at Level Three at 72 hours, now we go from three days down to two. So two days in jail, the two days in jail can be replaced with 48 hours of community service. So it’s either 48 hours in jail or 48 hours of community service at Level Four. That Level Four sentence, just like at Level Three and any other sentence level, the minimum term of jail time or the maximum term of jail time could be replaced with inpatient treatment. And just like Levels One through Three, at Level Four, the client can receive good time credit on an active sentence.

Finally, we get to Level Five, this falls under North Carolina General Statute 20-179 (k). The maximum fine that can be given at a Level Five sentence is $200, the statutory minimum, oh, I’m sorry, the statutory maximum jail time that can be given at a Level Five is 60 days, the statutory minimum jail sentence is 24 hours or 24 hours of community service. So, again, just like Levels Three and Four, at a Level Five, it’s either 24 hours in jail or 24 hours of community service. Just like Levels Three and Four, just like all of the other sentence levels, the minimum jail sentence required could be replaced by the judge with inpatient treatment or could be credited by inpatient treatment.

So if your client’s done a day of inpatient treatment, let’s say that your client went into the hospital and then basically was put into the kind of detox section of the hospital and spent three or four days in detox, potentially you could get inpatient treatment for that, as long as it qualifies, then you could get inpatient treatment credit and use that instead of having to do the minimum jail time or the minimum community service. And again, just like Levels One through Four, at a Level Five, a client can get good time credit for an active sentence. So for some reason, and this would be pretty well absurd because jail time is so far outside of the normal expected outcome at a Level Five, but if for some reason your client got a 30 day jail sentence at a Level Five, then they would be expected to be looking at 15 days in jail. So, again, that’s for an active sentence, not a kind of minimum sentence that’s also kind of requiring a probationary piece of things. If there’s probation required, then that’s not an active jail sentence.

Hope you enjoyed listening to today’s episode, join us next time when we will continue our sentencing conversation in episode 33. We will be talking about how to develop a plan to prepare your client for sentencing, and then how to advocate for your client during the actual sentencing hearing. Look forward to speaking with you next time.