What Can Happen if you are Found Guilty of DWI (Sentencing in a DWI Case)?

Dwi Drunk Driving

After a conviction for Driving While Impaired (including Driving while Impaired in commercial vehicle or emergency vehicle or school bus and Operating a commercial vehicle after consuming alcohol) the judge determine whether there are aggravating or mitigating factors in fashioning a sentence.

By law, the prosecutor must present your full record of traffic convictions to the judge along with all other appropriate grossly aggravating and aggravating factors, including your Blood Alcohol Content. The defendant's attorney may present all appropriate mitigating factors.

Grossly Aggravating Factors include

(1) Certain prior convictions for an offense involving impaired driving within the last 7 years

(2) Driving at the time of the offense while his driver's license was revoked for DWI or certain other alcohol related offenses

(3) Serious injury

(4) Driving with a passenger under the age of 18 years or a passenger with certain prescribed mental or physical disabilities.

There is no clear determination as to whether a judge can find that passenger that fits this description can serve as a SEPARATE Grossly Aggravating Factor. So it is legally permissible, for example, for the judge to sentence someone under an Aggravated Level One punishment (see below) if there were 3 children in the car.

Aggravating Factors include:

(1) Gross impairment (.15 BAC or more)

(2) Especially reckless or dangerous driving.

(3) Negligent driving that led to a reportable accident.

(4) Driving by the defendant while his driver's license was revoked.

(5) Certain prior convictions including DWI cases more than 7 years ago

(6) Fleeing or attempting to elude apprehension.

(7) High Speeds

(8) Passing a stopped school bus.

(9) Any other factor that aggravates the seriousness of the offense.

Mitigating Factors include

(1) Slight impairment of the defendant's faculties

(2)Safe and lawful driving except for the impairment (This usually applies in a checkpoint case)

(4) A safe driving record

(5) Impairment caused primarily by a lawfully prescribed drug

(6) Alcohol Abuse Assessment. We can provide a list of several respected alcohol abuse assessment agencies to our clients.

(7) Any other factor that mitigates the seriousness of the offense.

Aggravated Level One Punishment. - Where the judge finds three or more Grossly Aggravating Factors, a defendant is subject to Aggravated Level One punishment and may be fined up to $10,000 and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 12 months and a maximum term of not more than 36 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 active imprisonment of at least 120 days. If the defendant is placed on probation, the judge shall impose as requirements that the defendant (i) 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) obtain a substance abuse assessment and the education or

treatment for the restoration of a driver's license and as a condition of probation. The judge may impose any other lawful condition of probation.

Your license - if you have one - will be suspended and you cannot get a Limited Driving Privilege.

Level One Punishment - where the judge finds two Grossly Aggravating Factors, a defendant is subject to Level One punishment and may be fined up to $4,000 and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than

24 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 30 days. A judge may reduce the minimum term of imprisonment required to a term of 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, of a type approved by the State, for a period of not less than 120 days. If the defendant is monitored on a 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. If the defendant is placed

on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment for the restoration of a

Driver's license and as a condition of probation. The judge may impose any other lawful

condition of probation. Your license - if you have one - will be suspended and you cannot get a Limited Driving Privilege.

Level Two Punishment. - where the judge finds one Grossly Aggravating Factor, a defendant is subject to Level Two punishment and may be fined up to $2,000 and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and 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, of a type approved by the State. If the defendant is subject to Level Two punishment based on a

finding that the grossly aggravating factors of a prior conviction or license revocation for prior DWI and the conviction for a prior offense involving impaired driving occurred within five years before the date of the offense for which the defendant is being sentenced and the judge suspends all active terms of imprisonment and imposes abstention from alcohol as verified by a continuous alcohol monitory system, then the judge must also impose as an additional condition of special probation that the defendant must 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. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by law for the restoration of a driver's license and as a condition of probation. The judge may impose any other lawful condition of probation.

The judge may impose, as a condition of probation for defendants subject to Level

One or Level Two punishments, that the defendant abstain from alcohol consumption for a minimum of 30 days, to a maximum of the term of probation, as verified by a continuous alcohol monitoring system. The defendant's abstinence from alcohol shall be verified by a continuous alcohol monitoring system.

Your license - if you have one - will be suspended and you cannot get a Limited Driving Privilege.

If the judge determines that the aggravating factors substantially outweigh any mitigating factors, the judge shall find that the defendant is subject to Level Three Punishment and you may be fined up to $1,000 and anywhere from 72 hours to six months of jail. The jail time can be suspended in exchange for 72 hours of jail OR 72 hours of community service OR any combination of these conditions, but that is entirely up to the judge. The judge can impose a requirement that you obtain a substance abuse assessment and the education or treatment for the restoration of a driver's license and as a condition of probation and any other lawful condition of probation.

Jail is a risk, but typically does not happen. Experienced lawyers usually have an idea which judges impose jail time and which do not.

The Judge has the option to grant you a Limited Driving Privilege. This LDP may allow you drive to maintain your household, go to work, community service and religious services. Experienced lawyers usually know which judges issue the LDP and which may not.

However, if you blew a .15 BAC or higher, your LDP will be conditioned upon a requirement that you have an Ignition Interlock on any vehicle that you drive (anyone else operating the vehicle must also blow into it). That Ignition Interlock LDP may be issued only after a 45 day waiting period (that means no driving) and is only valid for driving back and forth to work.

If the judge determines that there are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall find that the defendant is subject to Level Four Punishment and you may be fined up to $500 and anywhere from 48 hours to 120 days of jail. The jail time can be suspended in exchange for 48 hours of jail OR 48 hours of community service OR any combination of these conditions, but that is entirely up to the judge. The judge can impose a requirement that you obtain a substance abuse assessment and the education or treatment for the restoration of a driver's license and as a condition of probation and any other lawful condition of probation.

Jail is a risk, but typically does not happen. Experienced lawyers usually have an idea which judges impose jail time and which do not.

The Judge has the option to grant you a Limited Driving Privilege. This LDP may allow you drive to maintain your household, go to work, community service and religious services. Experienced lawyers usually know which judges issue the LDP and which may not.

However, if you blew a .15 BAC or higher, your LDP will be conditioned upon a requirement that you have an Ignition Interlock on any vehicle that you drive (anyone else operating the vehicle must also blow into it). That Ignition Interlock LDP may be issued only after a 45 day waiting period (that means no driving) and is only valid for driving back and forth to work.

If the judge determines that the mitigating factors substantially outweigh any aggravating factors, the judge shall find that the defendant is subject to Level Five Punishment and you may be fined up to $200 and anywhere from 24 hours to 60 days of jail. The jail time can be suspended in exchange for 24 hours of jail OR 24 hours of community service OR any combination of these conditions, but that is entirely up to the judge. The judge can impose a requirement that you obtain a substance abuse assessment and the education or treatment for the restoration of a driver's license and as a condition of probation and any other lawful condition of probation.

Jail is a risk, but typically does not happen. Experienced lawyers usually have an idea which judges impose jail time and which do not.

The Judge has the optio n to grant you a Limited Driving Privilege. This LDP may allow you drive to maintain your household, go to work, community service and religious services. Experienced lawyers usually know which judges issue the LDP and which may not.

However, if you blew a .15 BAC or higher, your LDP will be conditioned upon a requirement that you have an Ignition Interlock on any vehicle that you drive (anyone else operating the vehicle must also blow into it). That Ignition Interlock LDP may be issued only after a 45 day waiting period (that means no driving) and is only valid for driving back and forth to work.

The Judge may give you Credit for Inpatient Alcohol or Drug Treatment against any active jail time. In other words, you may be able to serve some of your jail sentence in an inpatient rehab instead.

The judge may not give credit to the defendant for the first 24 hours of time spent in jail pending trial.