2021 Statistical Report for Driving While Impaired Convictions Now Available – North Carolina Criminal LawNorth Carolina Criminal Law

Last week, Jamie blogged about the 2021 Structured Sentencing Statistical Report from the North Carolina Sentencing and Policy Advisory Commission. As Jamie noted, that report contains detailed information related to felony and misdemeanor sentences imposed in Fiscal Year 2021, including the most commonly used felony grid cell, the number of convictions by district, average probation length, and typical sentencing outcomes for the most charged offenses. Because that report analyzes felony and misdemeanor convictions and sentences imposed under the Structured Sentencing Act, it does not include information about one of the most commonly charged misdemeanors in North Carolina: driving while impaired, which is sentenced under the sentencing scheme set out in G.S. 20-179. The Sentencing and Policy Advisory Commission prepares a separate report each year analyzing those convictions, and the Driving While Impaired Convictions Statistical Report for Fiscal Year 2021 is available here. Read on for highlights from the report, which contains data about convictions under G.S. 20-179 from July 1, 2020 through June 30, 2021.

Convictions under G.S. 20-179. The following offenses are sentenced under G.S. 20-179:

• Impaired driving (G.S. 20-138.1);
• Impaired driving in a commercial vehicle (G.S. 20-138.2);
• A second or subsequent conviction for operating a commercial vehicle after consuming alcohol (G.S. 20-138.2A); and
• A second or subsequent conviction for operating a school bus, school activity bus, child care vehicle, ambulance, other EMS vehicle, firefighting vehicle, or law enforcement vehicle after consuming alcohol (G.S. 20-138.2B).

The 2021 Statistical Report on Driving While Impaired Convictions [hereinafter “the report”] includes all convictions sentenced under G.S. 20-179, other than convictions for aiding and abetting impaired driving. The convictions included in the report are referred to in the report and in this post as “DWI convictions.”

It is reasonable to assume that the vast majority of these convictions were for misdemeanor impaired driving under G.S. 20-138.1. In the 2021 calendar year, for example, there were 37,960 charges for impaired driving (G.S. 20-138.1), 23 charges for impaired driving in a commercial vehicle (G.S. 20-138.2), 5 charges for operating a commercial vehicle after consuming alcohol (G.S. 20-138.2A), and no charges for operating a school, child care, emergency or law enforcement vehicle after consuming alcohol (G.S. 20-138.2B). In 2020, there were 34,810 charges for impaired driving, 40 charges for impaired driving in a commercial vehicle, 10 charges for operating a commercial vehicle after consuming alcohol, and 1 charge for operating a school, child care, emergency or law enforcement vehicle after consuming alcohol.

So what does the report tell us about those convictions?

Most convictions followed a guilty plea. The report states that 89 percent of DWI convictions were disposed by guilty plea, 11 percent by bench trial, and less than 1 percent by jury trial.

Of these convictions, Aggravated Level One convictions had the highest percentage of guilty pleas (93 percent), while Level Five convictions had the lowest (88 percent).

Because the report analyzes data solely from convictions (and not charges), it does reflect the conviction rate or the method of disposition for DWI charges more generally. Statistics compiled by the Administrative Office of the Courts for the 2017 fiscal year reflect that 7 percent of the DWI dispositions that year were not guilty verdicts, 4 percent were magistrate findings of no probable cause, 22 percent were voluntary dismissals by the prosecutor, and 7 percent were dismissed with leave. [Convictions for Habitual Impaired Driving (G.S. 20-138.5) and aiding and abetting impaired driving (punished pursuant to G.S. 20-179(f1)) were included in the 2017 statistics but not in the report.] If dispositions in FY 2021 continued to break down along similar lines, most DWI charges (in addition to convictions) were disposed of by guilty plea rather than by trial.

More than half of all DWIs were sentenced at Level Five. During Fiscal Year 2021, 21,240 DWI convictions were sentenced, a slight increase from the 20,414 sentences imposed in FY 2020. As in previous years, most convictions were sentenced at Level Five – the least serious punishment level.

The chart reprinted below reflects the percentage of convictions sentenced at each level. A finding of one or more grossly aggravating factors triggers sentencing at one of the highest three levels: Aggravated Level One (three or more grossly aggravating factors), Level One (two or more grossly aggravating factors, or the grossly aggravating factor in G.S. 20-179(c)(4)), or Level Two (one grossly aggravating factor). If no grossly aggravating factors are found, the court weighs aggravating and mitigating factors to determine the appropriate sentencing level among Levels Three through Five.

Nearly all DWI sentences are probationary. Only 6 percent of DWI convictions resulted in an active sentence. The rest were probationary, with 63 percent of convictions receiving unsupervised probation.

Not surprisingly, the highest percentage of active sentences (31 percent) was among defendants sentenced at Aggravated Level One. At the four highest levels of sentencing (Aggravated Level One, Level One, Level Two, and Level Three), most probationary sentences were supervised rather than unsupervised. The opposite was true for Level Four and Five sentences.

Active sentences are shorter than probationary sentences. The report compares average sentence lengths for active and probationary sentences, noting that suspended sentences were longer than active ones for every sentence level.

The report also includes the average days of imprisonment ordered as a condition of special probation at each level. Special probation (a period of imprisonment ordered as part of a probationary sentence) is required for Aggravated Level One and Level One probationary sentences. At those levels, the average number of days of special probation imposed was slightly higher than the statutory minimum (125 average days for Aggravated Level One, which requires at least 120 days; and 32 average days for Level One, which requires at least 30 days or at least 10 days with at least 120 days of continuous alcohol monitoring). Level Two probationary sentences require at least 7 days of special probation or at least 90 days of continuous alcohol monitoring. The average number of special probation days for Level Two sentences was 10.

In addition to sentencing data, the report includes data about the characteristics of the offenders who were sentenced. Three-quarters of the convictions were for males, and more than half of those convicted were white. The average age of DWI offenders was 37.

Breath or blood alcohol concentration (BAC) levels were recorded for 75 percent of the convictions. Just over half of the BACs were between .08 and .14, and just under half were a .15 or more. The most frequently recorded BAC was .13.

Time to disposition. The report reflects that the median number of months between charge and sentencing increased in FY 2021, which is not altogether surprising given that this time period included a full year of pandemic-affected operations. In FY 2021, the median time to sentencing for DWI convictions in district court was 13 months. In FY 2020, the median time was 9 months. District Court bench trials that resulted in convictions took 4 months longer to dispose of than guilty pleas (16 months compared to 12 months). In FY 2020, that was a 3-month difference (12 months compared to 9 months).

Data by district. As with structured sentencing convictions, the report reflects that the greatest number of DWI convictions (1,415) occurred in District 10, a single county district comprised of Wake County, the most populous county in the state. Measured against the county’s population, that amounted to two DWI convictions per 1,000 adults. District 9 and 9B, consisting of Person, Granville, Franklin, Vance and Warren Counties, had the next highest number of convictions (1,143), amounting to six convictions per 1,000 adults. That population-based rate was matched by District 8, consisting of Greene, Lenoir, and Wayne Counties. The district with the lowest number of DWI convictions and the lowest conviction rate based on population was District 26, Mecklenburg County, with 154 convictions, amounting to less than 1 conviction per 1,000 adults.

Be sure to check out the full report for its comprehensive analysis and informative charts and tabulations. Hats off to the Commission’s talented staff for creating yet another enlightening report.