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about Criminal Defense in North Carolina and South Carolina


Sunday, January 10, 2010

Jail Time for Prior DWI/DUI Conviction?

Being arrested for driving while impaired (DUI/DWI) in North Carolina can have a drastic impact on a person; driver's license suspension, car insurance increase, court ordered alcohol programs, stiff penalties and large fines. Throughout North Carolina, including Gaston and Mecklenburg Counties, a person arrested for a DUI/DWI who has a prior conviction, will most likely face jail time if convicted. It is important to know that there can be options to those who face this possibility. I find people in this situation want to know the best case scenario (a dismissal or a finding of not guilty) and the worse case scenario (a conviction). Many clients will ask if they are convicted, and they have a prior driving while impaired conviction, are they going to Mecklenburg or Gaston County Jail?

As a special condition of probation, North Carolina General Statute 20-179 (k1) gives a judge the discretion to order that any term of imprisonment (jail time) be served in an impatient facility license by the state that treats alcoholism or substance abuse. A simple example would be if a person was sentenced to 60 days in jail, that 60 days could be served in a rehab facility in lieu of jail. Another option in Mecklenburg County is DWI Court. At sentencing, a defendant requests a referral to the DWI court. If accepted, probation determines if the judge's jail sentence is imposed. The person participates in a very intense program, supervised by both probation and the courts, where addiction issues are addressed. In many cases, if the defendant successfully completes the program, the jail time is not imposed.

It is good to see the legislature opening the door to treatment instead of automatic incarceration. Alcohol is a triggering factor in many circumstances. The U.S. Department of Justice Report on Alcohol and Crime found that alcohol abuse was a factor in 40 percent of violent crimes committed. A quick summary of these statistics show that among the 5.3 million convicted persons in 1996, almost 36% (2 million) were estimated to have been drinking at the time of the offense. Comparably, the National Drug Court Institute reports that adult drug courts in California reported that re-arrest rates over a 4 year period were 29 percent for drug court clients and 17 percent for drug court graduates. For those who did not participate in a drug court program, 41 percent were re-arrested. As a former prosecutor from Orange County, California,  I was actively involved with both the Drug and DUI/DWI Courts. Having observed many success stories, it is good to see the legislature in North Carolina responding by giving judges the discretion to permit in-patient rehab in lieu of jail. It is also welcome sight to see Drug and DWI/DUI Courts operating in Mecklenburg County.

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posted by Carilyn Ibsen at


Anonymous James said...

Great post! Very informative. I was doing some research and found your site. Thanks!

April 28, 2010 at 3:14 AM  

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