Under a Prior Alcohol Related Suspension Automatically a Grossly Aggravating Factor? Not so Fast!
Many prosecutors will assert that any time a person is driving while license revoked for an impaired revocation, and commit another DWI, that is the basis to satisfy the grossly aggravating factor:
"driving by the defendant at the time of the offense while
the defendant's license was revoked pursuant to G.S.. 20-28(a1)"
However, one can make the argument that a plain reading of that statute means that the defendant would have had to have been charged some time in the past with DWLR-impaired revocation, under 20-28(a1), been found guilty, received the statutory suspension in 20-28(a1), then committed this DWI during that suspension period. 20-28(a1) provides for 3 suspension periods: 1 year for the first offense; 2 years for the second; and permanent suspension for the 3rd. If one looks at this grossly aggravating factor interpreting it with its plain meaning it will not apply in 95% of the DWI cases. Whether is applies or not can make a tremendous difference in DWI sentencing . It could take a Level 2 down to a level 5 or 4. It could drop an Aggravated 1 down to a 1 or a Level 1 down to a Level 2.
One can violate 20-28(a1) by any number of reasons related to alcohol that their license is still in a state of suspension, but until they get convicted of it, suspended for it, and commit the DWI during that suspension, they don't satisfy the requirements for the grossly aggravating factor. This is my view and I have had success arguing this.