North Carolina has one offense and it is called impaired driving. G.S. 20-138.1. DUI is not a separate charge, a lesser charge or an older charge that still exists. It is just a word people use.
The statute says it is a misdemeanor, and then sends it somewhere else. Impaired driving sits outside the normal misdemeanor class system. It has no Class 1 or Class 2 label. It is sentenced under its own statute, on six levels.
Which of those six levels you land on is the only question that matters, and it is decided by factors that are argued, not assumed.
What the charge is actually called
The offense is in G.S. 20-138.1 and the section is headed “Impaired driving.” Not driving under the influence. Not driving while intoxicated. Impaired driving.
North Carolina consolidated its impaired driving offenses in the 1980s. The former statute was repealed and replaced, and the current statute has used this name since. There is no DUI charge left to be charged with.
So why does everyone say DUI? Two reasons. Other states do use it, and some of them do distinguish DUI from DWI as separate offenses with different severity. And people arriving here from those states, or searching the internet, bring the word with them. None of that changes what is written on a North Carolina citation.
If your paperwork says DWI, DUI, or impaired driving, you are facing the same offense under the same statute. The letters are not the thing to worry about.
Three ways to commit it, not one
This is where the real misunderstanding lives. Most people think a DWI is a 0.08 reading. The statute gives the State three alternative routes, and it only needs one.
| Route | What the Statute Says | What It Means |
|---|---|---|
| 1 | While under the influence of an impairing substance | No number required at all. This is how cases are proved where there is no test, or where the test was thrown out. |
| 2 | After consuming sufficient alcohol to have an alcohol concentration of 0.08 or more at any relevant time after the driving | The familiar one. Note the words “at any relevant time after the driving,” which is why the timing of the test is argued. |
| 3 | With any amount of a Schedule I controlled substance or its metabolites in blood or urine | Any amount. No impairment needs to be shown, and metabolites can persist well after any effect has gone. |
A reading under 0.08 therefore does not end the case, and no reading at all does not end it either. That is worth knowing before anyone tells you the case is unwinnable or already won.
Why it has no misdemeanor class
Ask what class a North Carolina DWI is and most sources either guess or avoid the question. The statute answers it:
“Impaired driving as defined in this section is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge shall hold a sentencing hearing and impose punishment in accordance with G.S. 20-179.”
So it is a misdemeanor, but it does not carry a Class 1, 2, 3 or A1 label and it is not sentenced on the normal misdemeanor grid. It gets its own sentencing hearing and its own statute. That is unusual, and it is why DWI sentencing looks nothing like the sentencing for any other misdemeanor.
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Deadlines in traffic and DWI cases run from the day of the charge. The earlier we see your paperwork, the more options you usually have.
Call (336) 379-0539Free consultation with a Greensboro attorneyThe six sentencing levels
G.S. 20-179 sets them out. Note that these are minimums as well as maximums, which most pages omit, and the minimum is usually the number that actually matters to you.
| Level | Minimum Term | Maximum Term | Maximum Fine |
|---|---|---|---|
| Aggravated Level One | 12 months | 36 months | $10,000 |
| Level One | 30 days | 24 months | $4,000 |
| Level Two | 7 days | 12 months | $2,000 |
| Level Three | 72 hours | 6 months | $1,000 |
| Level Four | 48 hours | 120 days | $500 |
| Level Five | 24 hours | 60 days | $200 |
The three lowest levels allow the term to be served through community service rather than in custody. At Levels One and Two the term may be suspended only with special probation that includes a period of confinement, and at Aggravated Level One there is no parole eligibility.
Where you land is driven by grossly aggravating factors, aggravating factors and mitigating factors. Each prior conviction within seven years is a separate grossly aggravating factor, and the presence of one, two or more of them moves the level mechanically. Which factors the court finds is argued at a hearing, and that hearing is where a DWI is really decided.
What happens to your license
G.S. 20-19 sets the revocation, and the common description of it is wrong in a way that matters.
| Situation | Revocation |
|---|---|
| A first impaired driving conviction | One year. Not “up to” one year. The statute fixes it. |
| A prior impaired driving conviction within the three years immediately preceding | Four years |
| Two or more prior convictions with the most recent within five years, or a sentence at Aggravated Level One | Permanent, with conditional restoration possible later |
North Carolina uses the word revocation rather than suspension for this, and there is usually a separate 30 day civil revocation that starts at the arrest, before any conviction.
The other impaired driving offenses
People confuse these with the main offense constantly, and they are genuinely different charges.
| Statute | Offense | Who It Applies To |
|---|---|---|
| G.S. 20-138.1 | Impaired driving | The main offense. Sentenced on the six levels above. |
| G.S. 20-138.2 | Impaired driving in a commercial vehicle | A commercial vehicle driver, at a lower alcohol concentration threshold. |
| G.S. 20-138.3 | Driving after consuming while under 21 | A driver under 21 with any alcohol remaining in the body. Not an offense involving impaired driving, which changes a great deal. |
| G.S. 20-138.5 | Habitual impaired driving | Three or more prior impaired driving convictions within ten years. A Class F felony, sentenced on the felony grid rather than the DWI levels. |
What actually matters in your case
If you came here to find out whether a DUI is better or worse than a DWI, the honest answer is that the question does not apply in this state. Here is what does.
- Was the stop lawful? Everything the State has comes after it.
- Which of the three routes is the State using? A case built on observations is a different case from one built on a number.
- Is the testing sound? Instrument maintenance, the observation period, the rights given before the test, and chain of custody on blood are all checkable.
- Which grossly aggravating factors apply, and are the dates right? This decides the level, and the level decides the sentence.
- What mitigating factors can be put in front of the court? A voluntary assessment before sentencing is one of them, and it is available to anyone willing to act early.
- Is a privilege available, and when should it be applied for? At sentencing, in most cases, which means the groundwork has to be done beforehand.
Questions people ask us
What is the difference between a DUI and a DWI in North Carolina?
There is no difference, because North Carolina has no DUI charge. The offense is impaired driving under G.S. 20-138.1. Some other states do treat DUI and DWI as separate offenses with different severity, which is where the confusion comes from, but it does not apply here.
Is a DWI a misdemeanor or a felony in NC?
A first impaired driving offense is a misdemeanor. The statute says so directly, and then says the judge must hold a sentencing hearing and impose punishment under G.S. 20-179. It carries no misdemeanor class and is not sentenced on the normal misdemeanor grid. It becomes a felony as habitual impaired driving when there are three or more prior convictions within ten years.
What class misdemeanor is a DWI in North Carolina?
It does not have one. Impaired driving sits outside the structured sentencing class system entirely, which is why you will not find it labeled Class 1 or Class 2. It has its own six level sentencing scheme.
Do they have to prove I was over 0.08?
No. The statute gives three alternative routes: driving while under the influence of an impairing substance, driving with an alcohol concentration of 0.08 or more at any relevant time after the driving, or driving with any amount of a Schedule I controlled substance or its metabolites in blood or urine. The State needs only one of the three.
What if my reading was under 0.08?
The case can still proceed on the first route, which requires no number at all. A low reading is useful evidence and it is not the end of the matter either way.
How much jail time does a DWI carry?
It depends entirely on the level. The minimums run from 24 hours at Level Five to 12 months at Aggravated Level One, and the maximums from 60 days to 36 months. At the three lowest levels the term can be served through community service. The level, not the charge, is what decides the sentence.
What decides my sentencing level?
Grossly aggravating factors first, then aggravating and mitigating factors. Each prior conviction for an offense involving impaired driving within seven years counts as a separate grossly aggravating factor, and the number of them moves the level mechanically. Which factors the court finds is argued at the sentencing hearing.
How long will I lose my license?
For a first conviction G.S. 20-19 fixes it at one year. It is four years where a prior impaired driving conviction occurred within the three years immediately preceding, and permanent where there are two or more priors with the most recent within five years or where the sentence was at Aggravated Level One.
What is the maximum fine for a DWI in NC?
$10,000, at Aggravated Level One. The fine ceiling falls with the level: $4,000 at Level One, $2,000 at Level Two, $1,000 at Level Three, $500 at Level Four and $200 at Level Five. There is no statutory minimum fine.
Is a DUI the same as impaired driving?
People use the words interchangeably and in North Carolina they all point at the same offense. The statutory name is impaired driving. Whatever the citation says, the charge is the one in G.S. 20-138.1.
What about drugs rather than alcohol?
Impaired driving covers impairing substances generally, not just alcohol. The third route in the statute is specific: any amount of a Schedule I controlled substance or its metabolites in blood or urine, with no need to show impairment. Prescription medication can also support the first route where it impairs.
Is driving after consuming under 21 a DWI?
No. It is a separate Class 2 misdemeanor under G.S. 20-138.3, and the statute says it is not in any circumstances a lesser included offense of impaired driving. It is also not on the statutory list of offenses involving impaired driving, which affects expunction and future charges.
- Continuing Legal Education Instructor of the Year, North Carolina Bar Association
- Former President, Greensboro Criminal Defense Lawyers Association
- Board Member, Criminal Justice Section, North Carolina Bar Association
Talk to a Greensboro traffic and DWI lawyer today
Bring the citation, any DMV letter and your court date.
Garrett, Walker, Aycoth & Olson, Attorneys at Law
317 South Greene St, Greensboro, NC 27401
(336) 379-0539
This article explains North Carolina law in general terms. It is not legal advice about your case, and laws, penalties and court procedures change. Contact an attorney about your specific situation.