After a conviction for DWI, the judge determines 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:

• Certain prior convictions for an offense involving impaired driving within the last seven years
• Driving at the time of the offense while his driver’s license was revoked for DWI or certain other alcohol related offenses
• Serious injury
• 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 who 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 three 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 Driving by the defendant while his driver’s license was revoked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 seven 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)
3. A safe driving record
4. Impairment caused primarily by a lawfully prescribed drug
5. Alcohol abuse assessment. We can provide a list of several respected alcohol abuse assessment agencies to our clients.
6. 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 an 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.

Your license — if you have one — will be suspended and you cannot obtain 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.

Your driver’s license will be suspended, and you will not be eligible to receive 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.

Your license will be suspended, and you cannot get a limited driving privilege.

Level three punishment:

If the judge determines that the aggravating factors substantially outweigh any mitigating factors, the judge shall find that the defendant is subject to a 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, or not. This LDP may allow you to 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.

Level four punishment:

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 driving privilege, or not. This LDP may allow you to 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.

Level five punishment:

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 typically not a risk.

The judge has the option to grant you a limited driving privilege, or not. This LDP may allow you to 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.