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Doug,

It may sound like beating a dead horse, but let's enforce the laws on the books. It is frustrating for me to read about someone who has been arrested for the umpteenth time for dwi and once again receives probation.
I know of a friend whose son in Georgia had to serve 3 days in jail for his FIRST offense! In addition, he was on probation for one year and had to go to drug counseling and dwi school. It scared the hell of that young man.

Maybe it's time our judges started "scaring the hell" out of some North Carolina drivers!

MD

Absolutely. There were a lot of N.C. judges who wouldn't even convict people blowing .08 or .09, let alone throw the book at them. Now they have to at least convict them.

DWI sentencing, at the misdemeanor level--which is where first offenses and the first three offenses within seven years that do not involve a death, is the last bastion of Fair Sentencing. Some years back, 1994 I believe, the legislature made a number of changes in our sentencing guidelines and we implemented Structured Sentencing (often referred to as "truth-in-sentencing). Under the old Fair Sentencing, if a defendant, whether convicted of a felony or a misdemanor, were sentended to 10 years, he might serve, at most, a third of that sentence. We had what was called good time and gain time. Essentially, the sentence was cut in half from the moment the defendant went to prison, then he could receive day-for-day credit, etc. A life sentence did not mean life. It mean a defendant was eligible for parole after 20 years.
Structured Sentencing assigns points to a defendant for prior convictions, for being on probation at time of new offense. Based on a defendant's points, he is sentenced at a particular level. For misdeanors, the range is 1-150 days, depending on the class of the offense and the defendant's record level. For felonies, the range is calculated in terms of months, from 4 months to life without parole. And of course, there is the death penalty. Now, a life sentence means a life sentence--no parole. And if a defendant is sentenced to active time under Structured Sentencing, be that 75 days or 120 months, he will serve the entire sentence--no good time or gain time.

Back to DWIs, though...we still have Fair Sentencing. For most first offenders, they are sentenced at what is called Level 3, 4 or 5. These are the levels when there is no grossly aggravating factor such as license revoked for impaired driving offense, previous DWI conviction or a child being in the car. It ranges among 3,4,5 depending on aggravating and mitigating factors such as revoked license, extremely high (0.16 or higher) or low (not exceeing 009) blood alcohol content, whether defendant has had alcohol assessment and treatment, safe driving record, property damage, personal injury, etc.
A level 3,4 or 5 sentence is typically suspended, and the defendant usually qualifies for a limited driving privilege (to drive to and from work, counseling, community service). The judge has to impose either community service (24 hours for Level 5, 48 for Level 4, 72 for Level 3), a period of non-operation (no limited privilege) for 30 days for Level 5, 60 for level 4, 90 for Level 3 OR jail time--at least 24 hours for Level 5, at least 48 hours for Level 4 and at least 72 hours for Level 3. Imposing a portion of the sentence as active time as part of a larger suspended sentence is called a split sentence. For example, the sentence might be 60 days for Level 5, suspended for 36 months, unsupervised probation on condition Defendant serve 24 hours in jail, pay a fine of $200, etc.
Levels 2 and 1 mean the defendant has a previous conviction for DWI within the past seven years or was driving while his license was revoked for a DWI offense or had a child under the age of 16 in the car. When the Defendant is Level 2 or 1, the judge is required to sentence the Defendant to some active time, at least 7 days for Level 2 and at least 30 days for Level 1. Typically, this active portion is done as a split sentence. A Level 2 defendant can receive up to one year, but he must receive at least 7 days. A Level 1 Defendant can receive up to 2 years, but he must receive at least 30 days. I will typically sentence a Level 2 or Level 1 defendant to the maximum (1 or 2 years), suspend that sentence, place him on supervised probation with conditions he served an appropriate split sentence (I start at the minimum but may increase that depending on aggravating circumstances), get an assessment and complete treatment, etc.
Under Fair Sentencing, as I think I have already mentioned, a defendant will serve the split portion day for day, good and gain time don't matter. However, under Fair Sentencing, if I sentence a defendant to 2 years as a Level 1 DWI, and he goes to the State Department of Correction, he will only serve about 2 months, roughly one month for one year. I don't think most of our citizens realize this. If I believe a defendant deserves the harshest punishment under the law for a repeat DWI offense, then, I would likely sentence him to 2 years at Level 1, suspend that, place him on supervised probation for 3 years, with the condition he serve a split sentence of 6 months (by law, the most time a defendant can receive as a split sentence is one-fourth of the total maxium, so 6 months is the maximum split on a 2 year sentence), comply with treatment, pay fines, etc. That way, after defendant serves his six months, he will still be on supervised probation and getting treatment. If I sentenced him to 2 years, he'd serve about 2 months, be released and then have no supervision or treatment.
Last year, at our continuing education conference for district court judges, I asked one of the members of the Governor's DWI task force who was presenting a program for us, about the likelihood of the legislature changing the sentencing scheme for DWI offenders, to put in some type of Structured (truth in sentencing) Sentencing. He quite candidly told me the task force had discussed it, but that it would be too costly to incarcerate all the DWI offenders for that length of time, that we didn't have the prison space and that the legislature would be unlikely to approve such an appropriation.
Hope this information is helpful.
Susan Bray
District Court Judge
Guilford County

Thanks, Judge Bray, for the very detailed and helpful explanation. I think the public can really benefit from this sort of communication from the courthouse. Maybe you should blog ...

Beleive me when I say that some of the sentances are laxed and that because some people have money they can get an attorney that is good enough to make the law work in their favor but the little poor man who is not in such good shape can not do so. Anyway the reason I am here is that I had my very first DWI back in march of 06 and was convicted to a 1 yr suspention of license and 24 hrs comunity service and fines which all came about in sept 07 and my 1 yr was done ok time to get my full license back. Well the judge did not put in that all the evidence of the breath test was supressed due to the officer making me drive my vehicle before he charged me, the clerk then took it upon them selves to enter the numbers and now that my year is up I am now serving a second sentance on that same conviction because now DMV requires the interlock system to be in my truck for a year at another cost of over $1000.00. All that had to be done is for the judge to sign a piece of paper fixing his mistake and he refused saying that it was a political football.
My other problem is that I do not appreciate him dragging me into his politics and making me out to be the worst thing for his policical agenda.
To finish this off I have not had one drink in nearly 3 years and I still have to be in this situation, this judges republican polotics is putting another family in financial hardship.

Thanks for listening
Mike