NC DWI Guy Episode 31: DWI Sentencing Factors in North Carolina (1 of 3)

In this episode we begin a three-part series on DWI sentencing in NC. We kick off the sentencing discussion by doing a deep dive on the sentencing factors used by a judge during a sentencing hearing in NC on a DWI.

Highlights:

Transcript:

In this episode we begin a three-part series on DWI sentencing in NC. We kick off the sentencing discussion by doing a deep dive on the sentencing factors used by a judge during a sentencing hearing in NC on a DWI.

Hello fellow freedom fighters, and welcome to another episode of the NC DWI Guy Podcast. Today, we are going to be starting a three-part series on DWI sentencing. The topic for today’s focus is going to be the sentencing factors, grossly aggravating, aggravating, and mitigating factors of DWI sentencing in North Carolina.

Today, we’re going to be talking about one of the most important parts of our practice, one of the most important parts of being a DWI defense attorney, and that is sentencing. To be realistic, the vast majority of our clients, whether by plea or by trial are going to end up in front of a judge and be sentenced for the case. Some DWIs are dismissed, some of our clients receive a not guilty verdict, definitely try cases, push to state to their burden of proof, make sure that you’re holding their feet to the fire, that is the job of a good criminal defense attorney, but at the end of the day, it is one of those things where it is likely that this will end up in a place that is going to be sentenced, that your client is going to be sentenced. The percentages of cases that end up in front of a judge for sentencing are relatively high.

And so this should be something that we are focusing a lot of time and attention on. And so today we’re going to be talking about how to prepare your client for DWI sentencing. In terms of our objectives, learning objectives, from this time together we have four learning objectives.

First we’re going to review the grossly aggravating factors, aggravating factors, and mitigating factors that apply to our clients.

Second, we’re going to review each misdemeanor sentence level and the minimum and maximum punishments associated with each sentence level.

Third, we’re going to develop a plan for preparing our clients for DWI sentencing to make sure that they are doing everything that they need to do at the appropriate timeframe so that they will be ready to go when the judge issues sentence.

And then finally, we’re going to learn how to advocate for our clients during the actual hearing itself.

But First, Who is Responsible for Proving the Factors?

So, to jump right in and talk about the sentencing factors, the first thing to note about the sentencing factors is that we want to spend time on who is responsible for proving the sentencing factors. In North Carolina General Statute 20-179 (a), and then again later on in 20-179 in subsection (o), it indicates that, and it indicates clearly that the state must prove all grossly aggravating factors and aggravating factors beyond a reasonable doubt, beyond a reasonable doubt. The state is responsible. It’s their burden of proof.

If the state does not mention any grossly aggravating factors or aggravating factors, then the state clearly has not attempted to prove those beyond a reasonable doubt. So if they are silent as to grossly aggravating factors and aggravating factors, then they have clearly not attempted to approve them, nonetheless prove them at the very high level of beyond a reasonable doubt. And this is extremely important because so many times in district court, a judge will find on their own aggravating factors.

They will basically, without the state putting any aggravating factors in front of them, find that the driving was reckless, find that there was a DWI outside of seven years, find that there is a revocation of the license. Whatever the case may be, there are so many times that I have seen a district court judge find their own factors during a sentencing hearing. And so when it is your turn to present evidence during a sentencing hearing or to speak on behalf of your client during a sentencing hearing, we automatically, our minds automatically go mitigation, mitigation, mitigation. How can I minimize my client’s circumstances? What can I say on behalf of my client that makes my client sound better? That is the wrong place to start.

The first place to start is, at least in some cases, the first place to start is to pointing out the lack of grossly aggravating factors and/or aggravating factors. If the state is silent as to grossly aggravating factors and aggravating factors, please point that out to the judge, please start your sentencing by pointing that out.

Because what you are telling the judge, and I often see the district court judge look at me and basically say, “Mr. Minick,” at the end of the state’s presentation, “Mr. Minick, what would you like to say on behalf of your client in mitigation?” They’re almost even kind of guiding you towards that. If the state is silent as to grossly aggravating factors and aggravating factors point that out, because what you are doing by pointing that out is telling the judge, they cannot find any grossly aggravating or aggravating factors.

So, it is helpful when the state is silent to pointing out to the court, “Your Honor, first of all, in regards to grossly aggravating factors and aggravating factors 20-179, it’s clear that those must be proved by the state beyond a reasonable doubt. The state has presented no grossly aggravating factors or aggravating factors. And therefore, I will not speak to any because there haven’t been any presented by the state in regards to mitigation,” and then you move on, but you’re pointing out to the court that it would be unwarranted in that particular situation for there to be anything other than a level five sentence issued, as long as you present a legitimate mitigating factor, because why? The state didn’t present any evidence of aggravating or grossly aggravating factors, even if they exist. Make sure that you point that out.

Also in regards to proving factors, some of these are relatively easy. So, if you have somebody that is revoked, driver’s license is revoked at the time of the charge, that might be relatively easy to prove by means of a driving history. If you have somebody that has a prior DWI and the same County in North Carolina as the one that you’re representing them on is within seven years, if the state presents a driving history and says there’s a prior within seven, that’s likely going to be enough to be found by a judge beyond a reasonable doubt to show that particular grossly aggravating factor, but other aggravating and grossly aggravating factors are more complex.

For instance, the grossly aggravating factor of a passenger being under the age of 18 is something that I have seen litigated multiple times with good reason and with success. If you have a passenger that’s, let’s say 16, how is the state proving that? How are they proving that beyond a reasonable doubt? Did the officer make a copy of that passenger’s driver’s license? Was that passenger called the court to testify about how old they are? Did they tell the officer at the roadside their age? If so, if they’re not present at the sentencing hearing, is there a way to keep that out through an objection based on the confrontation clause or hearsay evidence?

These are extremely important points to bring out in a challenged sentencing hearing. And so whether this, and again, you don’t have to necessarily catch the state off guard with this, you can say, “We’ve got a situation where I don’t think that the state can prove the age of this particular passenger beyond a reasonable doubt. And so we are not necessarily contesting the DWI, but we certainly would like to have a trial or a actual evidentiary hearing on the aggravating factor, the grossly aggravating factor of there being a passenger under the age of 18 in the vehicle. I’m going to object to any statements that were made by the person at the roadside.” So, you don’t have to necessarily even keep the DA in the dark, but though there are times when that has been a good thing to contest.

I have also contested prior convictions with success out of state, so prior out of state convictions, making sure that the statutes are substantially similar, that it is clear on the record, what the actual disposition or outcome of the case is. In regards to a driving with a revoked license impaired revocation, I have multiple times successfully challenged a driving with revoked license impaired revocation being a grossly aggravating factor. And so even when it’s on paper that these particular factors might be in play, make sure that you are holding the state accountable to proving each and every aggravating and grossly aggravating factor that they are presenting beyond a reasonable doubt.

In regards to mitigating factors, the defendant has to prove all mitigating factors by a preponderance of the evidence. Now preponderance of the evidence is not a high standard, it’s not as high as clearly beyond a reasonable doubt, but you should be prepared to present some evidence as to why you’re able to show whatever mitigating factors that you’re trying to prove in court. So, make sure that you have evidence of any mitigating factor that you are arguing, whether that is paper, testimony, video, whatever it might be, make sure that you are attempting to prove those mitigating factors.

Also in regards to sentencing factors in superior court, and this is true for cases that are appealed to superior court or originate in superior court, the state must prove notice of any grossly aggravating factors and aggravating factors under 20-179 to the defendant at least 10 days before trial. So, if the state has not provided notice to you of grossly aggravating factors and aggravating factors at least 10 days before the scheduled trial date, then they should not be able to present those factors in a sentencing hearing. The statute’s clear on that front, and make sure that you are arguing about that strongly if that has not been presented.

And I have seen that happen. I have had that happen at least one time in superior court where there was a prior DWI but no notice given by the prosecution in regards to that grossly aggravating factor, even though it was an in-state prior DWI.

In terms of other kind of requirements regarding the sentencing factors, one final note is that the driving and/or traffic record must be made available to the defendant and the defendant shall be given an opportunity to review at a reasonable time prior to sentencing. So, the reason that this is important is we all get the driving record, like we all always get the driving history in regards to sentencing, but if let’s say you get a driving history that also includes an out-of-state DWI, or maybe an in-state DWI, or something going on with the person’s license, if you’re not going to be prepared on that particular day for sentencing based on the information that is in that driving record, ask for a continuance pointing under 20-179 to this requirement for there to be a reasonable time prior to sentencing to review the driving history.

Again, you’re going to have the opportunity to review the driving history, but if you don’t get it until the day of sentencing, which is what happens most of the time, and for whatever reason you’re not prepared to handle the case that day, you can use this as a grounds for continuance because you need to have a reasonable time prior to sentencing to have the opportunity to review, both yourself and with your client, the driving history that is given to you by the state.

What are the Grossly Aggravating Factors for a DWI in North Carolina?

Jumping into the grossly aggravating factors that are in North Carolina General Statute 20-179 (c), the big one is a prior conviction within seven years of the date of the current offense. And the statute kind of lays out this in several different ways. It’s basically spelled out several different ways to how to calculate the seven-year period, but just know that it basically in every way skews against the defendant.

For instance, if you have a prior DWI charge that was charged 15 years ago, but your client wasn’t found guilty until three years ago and now has a new offense, that’s within the seven year period because it looks back to that date of prior sentencing. Let’s say that your client is charged in 2012 with the DWI that you’re representing them on, and then they’re charged in 2015 with a DWI that now they’ve already pled guilty to, and here in, let’s say 2018, now you’re dealing with the one that was charged in 2012.

Even though the second DWI that was charged wasn’t charged until three years after this one that you’re representing them on, if the guilty plea is entered on that one first, that is going to act as a grossly aggravating factor on the case that you’re handling from 2012. So basically, there are several different ways to kind of calculate this seven year look back period under 20-179 (c), so make sure you’re familiar with those different ways, but they basically all kind of try to make sure that there’s not a new way to kind of finagle out of this seven year look back period.

It’s important to note that each prior conviction within seven years, is a separate grossly aggravating factor. So, each one charged within a seven-year period is a separate grossly aggravating factor. It’s also important to note that when you’re looking at these type of grossly aggravating factors in regards to prior convictions, again, if it’s an out of state DWI, then it has to be substantially similar to the in-state North Carolina Statute regarding what constitutes a DWI. So, just make sure that for any out-of-state cases, that is something that is substantially similar in the way that that other state’s statute looks to the North Carolina DWI Statute.

Secondly, in terms of grossly aggravating factors driving with a revoked license impaired at the time of the offense. So, a DWLR Impaired Revocation looks at was the person revoked for a prior DWI offense at the time, whether it was for one year revocation, a permanent revocation from prior DWI? The person let’s say got a DWI 15 years ago, they never completed their classes, and so they just remained revoked even though they would have been eligible a year after the charge to get their license back, they never took those classes, and so now they’re still 15 years later showing as revoked.

If they’re revoked for a 30-day civil revocation from a different offense, that could be a grounds for finding that there’s a DWLR impaired. So, there’s a whole number of different ways that somebody’s license might show as revoked for an implied consent offense. And so that’s what you’re trying to determine in looking at this. So, that’s grossly aggravating factor number two.

Grossly aggravating factor number three, under 20-179 (c), is a serious injury caused to another person at the time of driving. So again, thing to note here is that it has to be to somebody else. Serious injury is a factual question, and there are some cases that talk through what serious injury looks like. So this again, could be another grounds potentially for a sentencing hearing. This is not one that is normally a fun one to argue, especially if the potential victim is present, but look at the cases that apply in this regard and see whether or not they would constitute a grossly aggravating factor.

Most of the time if you can handle, if you know that your case is going to be for plea, a lot of times there is not the attempt to kind of reach out to a prosecuting witness, well, it’s not really a prosecuting witness, but to a victim of injury from a DWI. And so that could be part of the kind of lack of presentation of evidence regarding an aggravating factor.

Finally, the fourth grossly aggravating factor is that there is a passenger either under the age of 18 or a person in the vehicle with the mental development of a person under 18 or a person with physical disability that prevents them from vehicle exit. I have really never seen in any of the cases that I have had kind of number two and three here under this last grossly aggravating factor ever presented or prosecuted. I’ve heard of it happening with other attorneys, but I’ve never had a case with that.

I think in particular, number two would be seemingly an impossibility to prove beyond a reasonable doubt a person with a mental development of a person under the age of 18. Maybe not an impossibility, but a very high standard to get over in terms of being able to show what a person under the age of 18’s mental development should look like, because I just don’t know, whereas the average standard of what a person at the age of 18 should look like in terms of mental development, I mean, there would have to be an enormous amount of some sort of like medical testimony presented on that front.

Again, in regards to just the more streamlined passenger under the age of 18, that’s something that would be important to look at in terms of how is the state going to be able to prove the ages of the other people in the vehicle. So, in terms of the impact of a grossly aggravating factor on sentencing, basically if there is three or more grossly aggravating factors, then your client is looking at an aggravated level one. Three or more grossly aggravating factors, so that could be three prior DWIs. Within seven years it could be a combination of a child being in the vehicle plus a person’s license being revoked for a DWI plus the fact that they have a prior DWI within seven. So, basically any combination of three or more grossly aggravating factors, your client’s looking at aggravated level one.

Level one would be if there are two or more grossly aggravating factors present, or there is a child in the vehicle. So, if the grossly aggravating factor, and the only grossly aggravating factor that exists in your case is that there is a person under the age of 18 in the vehicle or those other two kind of less utilized prongs of that fourth grossly aggravating factor exists, but primarily if there’s a child under the age of 18 in the vehicle, that is automatically going to elevate the sentence to a level one.

In terms of level two sentencing, this would be present if there’s only one grossly aggravating factor in the vehicle, or I’m sorry, if there’s only one grossly aggravating factor present, and there’s no child in the vehicle. That would be level two sentencing. And then we’re looking at level three, four, or five, if there are no grossly aggravating factors present.

What are the Aggravating Factors for a DWI in North Carolina?

In terms of the aggravating factors, this is under 20-179 (d), first is a high alcohol concentration, so a 0.15 or higher BAC. If there is especially reckless or dangerous driving. I tend to see this argued quite a bit the especially reckless or dangerous driving. So, just wanting to be kind of aware of.

Negligent driving that led to an accident. So, if your client has a reportable accident, then that is an aggravating factor under 20-179 (d). Driving with a revoked license, but not for an implied-consent or impaired revocation, so DWLR not impaired. So, let’s say a person’s license is revoked at the time of the DWI charge because they hadn’t paid a ticket or because they have failed to have insurance, whatever it might be, that would simply be an aggravating factor not a grossly aggravating factor.

A prior conviction for a DWI outside of seven years is another aggravating factors, so kind of like a poor driving history. The difference between this and the prior within seven years is that if your client has 10 prior DWIs outside of seven years, so more than seven years removed, that is still only one aggravating factor, it is not 10 separate aggravating factors like it would be 10 separate grossly aggravating factors if they were all within seven years. For any that are outside of seven, that basically is just an automatic aggravating factor, but not each prior separate conviction does not count as a separate aggravating factor.

Also if there was two prior convictions for which at least three points are assigned in the last five years, so basically a high level speeding ticket, driving with revoked license charge, some of these other charges that could involve like a higher point total. Anything three points or more, if there are two convictions within five years, that’s considered a kind of bad driving record and would result in an aggravating factor.

I don’t see that often argued by the state, and I don’t think that there’s honestly been that many times that it could have been, but I just think that that one is pretty much off the state’s radar. If there is a conviction for speeding waffling to allude then that would also be an aggravating factor. Again, that’s a little bit abnormal in terms of what you normally see a conviction for speeding at least 30 miles over the speed limit. So if there’s anything, high speed that is involved in the DWI, that’s important to note. If your client was passing a stopped school bus at the time of driving, then that would also be an aggravating factor. And then there is a catchall of any other aggravating factor that the judge wants to find.

So basically, there are the kind of specific listed aggravating factors but there’s also this catchall of whatever other factors that the court wants to find. And I have really never seen a DA argue this, and I’m not sure exactly why that is. I think it’s because generally on DWI cases, the state recognizes that there’s really not much that they can offer in regards to other alternatives to a DWI conviction reduction or a dismissal for certain situations.

And so because their hands are so tied in regards to not being able to dismiss or reduce the DWI, I just don’t see a lot of argument most of the time for DAs in the courtroom actually looking to attack these kinds of things, but at the end of the day this is something that they definitely could argue. So, it’s worth noting that it is out there. And again, any of these aggravating factors, just like grossly aggravating factors, need to be presented, put forward, and proved by the state beyond a reasonable doubt.

On the Other Hand, What are the Mitigating Factors for a North Carolina DWI?

In terms of mitigating factors, so again, in terms of where your job comes in in terms of hopefully being able to raise any of these that exist, we basically have slight impairment by alcohol or… well, slight impairment by alcohol or not having any chemical analysis available. So, if there’s no opportunity to get a chemical analysis done, then you could argue that as a mitigating factor, maybe if you have a client that is in the hospital and so they’re not able to do breath testing or whatnot, and the state just decides not to do a blood test, basically there’s no chemical analysis available if there’s a plea that is then entered.

You know, I don’t know if there’s any medical records that are available on that, but let’s just say that that’s the situation that could be a situation where there’s no chemical analysis available. So again, 0.09 or less is the kind of cutoff for a… There we go. Go ahead and move that out of the way so you can see, but 0.09, 0.08, those would be a mitigating factor.

Also under 20-179 (e) in terms of mitigating factors, the driving at the time was safe and lawful, except for impairment. If you have a situation where there is a checkpoint, a tag, driving with revoke license, stopped for driving with a revoked license because they’ve run the tag, person is parked on the side of the road, all of these would be driving that is safe and lawful. So, if that’s the situation, there’s no bad driving, make sure that you raise that as a mitigating factor.

And in terms of all of these mitigating factors, I think it is really helpful to argue the numerical statutory kind of site, anytime that you’re pointing to a mitigating factor, this is something that I personally do not do regularly enough. I think it really shows to the judge how serious you are taking the sentencing statute and it also kind of shows to the court the kind of level of knowledge that you have about DWI sentencing. So instead of just saying, “Your Honor, we are arguing slight impairment in mitigation, or in mitigation, Your Honor, we point to the defendant’s alcohol concentration being a 0.09 as a mitigating factor,” say, “Your Honor, we are arguing under 20-179 (e) one that slight impairment is present based on the 0.09 from the intox CCR2 that that mitigating factor is met. We are arguing under 20-179 (e) three that my client’s driving was safe and lawful except for impairment at the time of driving.” So specifically list out each subsection of the statute in terms of mitigating factors that you believe applies in your case.

Subsection number four, so 20-179 (e) four, your client has a safe driving history, so there’s no four-point offenses in the last five years. A four point offense is a pretty significant offense, like a reckless driving, a ticket or something along those lines. So if you look at the driving history and in the past five years there are no four point offenses, then you have a safe driving history. So, make sure that you are pointing to that.

Subsection (e) five, that impairment was caused by a lawfully prescribed drug taken in the prescribed dosage. So, if you have a client that was convicted based on a medication that they were taking, so their impairment was caused by medicine and it was prescribed, then argue that as a mitigating factor. It’s to some extent impossible to prove that that drug was taken in the prescribed dosage. You might need testimony from your client in regards to that, or it might just be enough to kind of point that out to the court that, “My client’s been on this medication for the last five years. Took his medication lawfully, prescribed dosage,” but make sure that you point that out if it is a prescription medication related DWI.

The big one that should never not be able to be argued, 20-179 (e) six, is that your client has had a substance abuse assessment and is engaging in the recommended course of treatment. For the most part, I’ve seen judges accept this as a mitigating factor when there is a substance abuse assessment presented. So when your client has completed a substance abuse assessment and presents that, that that would be an appropriate mitigating factor.

And then finally, 20-179 (e) seven, any other factor that mitigates the offense. So, any other factor that mitigates the offense. And this is a grossly underutilized way to get a level five sentence by the defense. That there’s no reason to not be arguing this subsection. And I think part of the reason why it is important to go through the mitigating factors that you are presenting under 20-179 by subsection, is so that you can specifically point to 20-179 (e) seven judge, any other factor that mitigates the offense to really point out to the court, “I’m not just pulling stuff out of a hat, this is a specifically allowed way for Your Honor to mitigate the offense.” And it doesn’t say that this is only one additional mitigating factor, you could basically have 10 additional mitigating factors based on subsection seven. So, there’s no limit to how many mitigating factors that you can present under 20-179 (e) seven.

So, I have seen this utilized many times by judges, and if you don’t present it to the judge, the judge is not going to find that, but if you present it to the judge, then that can be the game changer between being at a level four and looking at 48 hours of community service versus the level five and having only 24.

Here are the some of the mitigating factors that I have seen under 20-179 (e) seven as any other factor. I’ve seen that my client was dressed up for court. The judge said that that person was the nicest looking person in the courtroom, and so they gave a mitigating factor for being dressed nice. Number two, that they were polite and cooperative with the officer. I’ve seen multiple judges use that as a mitigating factor, an additional non-statutory mitigating factor and not specifically listed, it’s still statutory because subsection seven is there, but not a specifically listed mitigating factor.

I’ve seen inpatient treatment at a level three, four, or five be used as a additional mitigating factor since that normally wouldn’t be something that a person at that level would do if a client is doing that just as a way of improving their life. I have seen judges use that as an additional mitigating factor.

On number four, early acceptance of responsibility. So, generally somewhere between like 60 and 90 days out from the time of their offense and the plea, I have seen a judge that has found that as an additional mitigating factor that took my client from being a level four down to a level five. So, it’s really important to focus on that.

Again, if you are stating the statutory subsections for each specific mitigating factor that you are arguing, that really validates subsection seven, that talks about any other mitigating factor that the judge wants to find. Now, if you’re at a loss for, what mitigating factors could I argue? You’re saying, “If a person is dressed up for court, if they’ve done inpatient treatment, like what could I argue under this section?” Well, if you want a reference point for other mitigating factors that you could argue, then go to 15A-1340.16, which contains a laundry list of mitigating factors for felony sentencing purposes.

Other Mitigating Factors for Felony Sentencing in North Carolina

So, if you want to say, “Well, any other factor that mitigates the events,” there are other mitigating factors that are listed in different sentencing situations. And again, for felony sentencing in North Carolina, there’s a whole laundry list of mitigating factors. So, let’s look at some of those mitigating factors under 15A-1340.16.

15A-1340.16(e1), the defendant committed the offense under duress or a threat insufficient to constituted offense, but significantly reduced the defendant’s culpability. So, let’s say that the person was at a bar and a fight broke out, or there’s a dangerous situation and they jump in their car, even if you’re not arguing the necessity defense in that case, which maybe that is a good case to argue the necessity defense, but even if you’re not arguing that, maybe that’s another mitigating factor. “Your Honor, my client made a bad decision. He was trying to get out of a dangerous place, and so he made a bad decision, but that minimized his culpability because of the fact that he was doing it as a result of kind of the circumstances that he found himself in.”

(e3), the defendant was suffering from a mental or physical condition insufficient to constitute a defense, but significantly reduced the defendant’s culpability. If the person has, let’s say PTSD, and they interpreted a situation the wrong way, and they left their apartment, let’s say kind of without any good reason, but more because of a mental condition that they had. If you’ve got some sort of medical documentation as to that, that could be another basis for arguing this mitigating factor.

(e4), the defendant’s age or immaturity significantly reduces culpability. So, if you have a young person that is charged. I’ve had clients that are 17, 18, 19 years old charged with DWI, or you’ve got somebody again that has some sort of a serious mental condition that would cause them to not be able to make good choices. If you can either document that by showing date of birth or by showing some sort of a mental impairment, that could help in terms of arguing that as a mitigating factor that should come in in terms of DWI sentencing purposes under (e7), 20-179 (e7).

Continuing with mitigating factors under 15A-1340.16, this is (e5), the defendant made a full or substantial restitution to a victim. If you’ve got a client that got involved in an accident and they paid all of the money for the other person’s property damage, I mean, if the state is arguing that the aggravating factor of this led to a reportable accident, “Judge, so that’s an aggravating factor.” Well, this is like a counterbalancing mitigating factor. Basically say, “Yeah, there was an accident, Judge, but the person received full restitution from insurance.”

And so basically you got the aggravating factor and now we’ve got a counterbalancing mitigating factor. So you basically get to remove any reportable accident aggravating factor, as long as your client has insurance.

Under (e11), that prior to arrest or at an early stage of the criminal process, the defendant acknowledged wrongdoing to a law enforcement officer. If you look at the driving while impaired report and it indicates that they took responsibility shortly after the charge, as they said, “I made a bad mistake. I’m really sorry for my actions tonight,” there you go. There’s another mitigating factor.

(e12), the defendant has been a person of good character and has a good reputation in the community. Again, this should be a gimme. Like how could you not prove this? This is actually like part of your responsibility in a sentencing hearing anyway. So, why are you not arguing this as a kind of statutory mitigating factor under the DWI catchall? Make sure that you’re arguing this being a good person of good character.

(e14), the defendant has been honorably discharged from the armed services. Again, not every client this would qualify for, but if you just get a letter in regards to honorable discharge, I mean, if you showed that letter, there’s another mitigating factor.

Continuing with mitigating factors under 15A-1340.16, this is (e15). The defendant has accepted responsibility for criminal conduct. So, if they have accepted responsibility by entering a plea, there you go. There’s another mitigating factor.

15A-1340.16 (e16), the defendant has completed an alcohol or drug treatment program. There you go. If they’ve completed the treatment, there’s another mitigating factor. And again, that’s specifically listed, but let’s say that you have somebody that’s kind of done multiple treatments for themselves because of the fact that they think that they have a serious alcohol or drug addiction problem, then make sure that you’re getting credit for that for them in the sentencing hearing.

Under (e17), the defendant supports the defendant’s family. If the defendant has a spouse or children or parents that they support, and you can document that, have that spouse or parent, co-parent write a letter that says, “This person takes care of us,” or you just present that information, that is a specific mitigating factor.

(e18), the defendant has a support system. Well, if you have a client that’s attending AA that’s not as specific, that doesn’t qualify in terms of assessment or treatment that is required under this specifically listed 20-179 mitigating factors, but AA is a support system. So, if the person is attending AA, then they have a support system. That’s not the only way that you could prove a support system under this particular mitigating factor, but AA would definitely be a good argument in terms of the defendant having a support system.

(e19), the defendant has a positive employment history, or is gainfully employed, get a pay stub. If you’ve got somebody that is working, which most of our clients are, otherwise they wouldn’t be coming to us and asking for help, then they’re going to have a pay stub that you’re going to be able to show that the person has a positive employment history or is working. Again, I just go through that list to show why it is important to kind of think outside the box when it comes to presenting mitigating factors. I think we so often feel like, well, there are these six listed mitigating factors. If one of those is present then argue it. If it’s not, then we’ll look for another one that exists, whatever it might be. But we so often forget about that catchall under subsection seven that we just kind of leave that, any other mitigating factor that the judge wants to find, completely off of the radar. And that’s crazy. You’ve got to argue that when it is appropriate to be argued.

Weighing the Aggravating and Mitigating Factors Against Each Other

Now we’re going to look at weighing these aggravating factors and mitigating factors and how that would then kind of determine the sentence level in a case where there are no grossly aggravating factors. This is a balancing test, and basically if the aggravating factors outweigh the mitigating factors, then you’re looking at level three. If the aggravating factors and the mitigating factors counterbalance one another or offset one another, then you’re looking at a level four sentence. And then finally, if the mitigating factors outweigh the aggravating factors, then you are looking at a level five, your client’s looking at a level five.

And based on all of the mitigating factors that we just went through, there is no time when there aren’t grossly aggravating factors that your client should not be looking at level five sentencing. Clearly the state is going to have a more difficult time proving non-statutory aggravating factors beyond a reasonable doubt, you should get creative and come up with 10 different mitigating factors that exist in your case to where basically every case you’re arguing, level five sentence’s appropriate.

And the judge may not always buy into that, a judge might say, “Well, I appreciate your argument Mr. Minick, but we have these specifically listed out aggravating factors and these specific mitigating factors, and I recognize that there’s a catchall, but I feel like if I get too far down that road, there’s going to be disparate sentencing.” And that’s fine. I mean, a judge can do what a judge wants to do, but you’re arguing the statute, you’re arguing the law. You’re not making stuff up out of left field, there is a specific provision in the statute that says, “Any other factor that the judge wants to find a mitigation.”

So make sure that you are arguing as many other factors in mitigation as you possibly can to give the judge a reason to find your clients at a level five, even in a case where there are three aggravating factors that are statutorily presented and found by the judge, and no mitigating factors that are specifically listed found by the judge, and yet you’ve got five other mitigating factors that come under that catchall. You should be arguing that level five is the appropriate sentence level.

Hope you enjoyed today’s episode. Join us next time, episode number 32, where we will continue our sentencing conversation by talking about the sentencing levels in North Carolina.