When is Driving While License Revoked a Grossly Aggravating Factor?

There are six sentencing levels for Driving While Impaired (DWI) convictions. A defendant is only exposed to the three most severe levels (A1, 1, and 2) if a judge or jury finds the existence of one or more “grossly aggravating factors” beyond a reasonable doubt. These factors are listed in G.S. 20-179(c). One of them is “[d]riving by the defendant at the time of the offense while the defendant's driver's license was revoked pursuant to G.S. 20‑28(a1).” Rather than applying to all revocations, G.S. 20-28(a1) applies when person’s license is revoked for an “impaired driving revocation.”  At first glance, it appears any time a person is convicted of DWI, if their license was revoked for an impaired driving revocation, this grossly aggravating factor would apply and elevate their sentencing exposure—but that may not be the case. Read on for more. Driving while impaired. The elements of DWI are met when a person (1) drives or operates (2) a vehicle (3) on a street, highway, or public vehicular area (PVA) (4) while under the influence of an impairing substance, after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of .08 or more at any relevant time after driving, or with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine (G.S. 20-138.1). The two elements that warrant a closer look for the purposes of today’s post are (2) a vehicle, and (3) on a street, highway, or PVA. Vehicles [...]