Aggravated DWI/DUI is charged when the breath alcohol score is .16 or greater or the driver refused the breath alcohol test. Aggravated DWI/DUI may also be charged when there was a DWI/DUI related accident. Aggravated DWI/DUI charges result in increased minimum sentencing for all DWI/DUI convictions.
Many people refuse the breath alcohol test for any number of reasons. Some believe that it will help their chances at trial. This may be true in some cases but it also increases the possible penalties in case the trial is lost. Others are suspicious of the accuracy of the breath alcohol tests. However, there is a remedy for this.
Anyone charged with DWI/DUI may request an independent blood test from the lab of his or her choice. An independent test is free to the defendant unless he or she refuses the breath alcohol test. As such, if there is a question as to the validity of the breath alcohol test, the person should request the independent test. In short, it is typically better to take the test unless you are certain that you will test at .16 or above anyway. Otherwise, take the test and get your own independent test to verify the results if you believe the breath alcohol score is inaccurate.
In case you are convicted of aggravated DWI/DUI, there are increased mandatory minimums. The mandatory minimum jail time for a first time aggravated DWI/DUI is 48 hours. For a second, there is a mandatory 96 hours. For a third, there is a mandatory 60 days in jail. These mandatory sentences for the aggravated portion are in addition to the mandatory sentences on the base DWI/DUI.
Judges often also consider aggravated DWI/DUI, particularly in cases of high breath alcohol scores, in their decisions of whether or not to give the minimum or maximum sentences. A first time DWI/DUI carries up to 90 days in jail. A 2nd or 3rd DWI/DUI carry up to one year in jail. Felony DWI/DUI carries felony sentencing between 18 months and 3 years depending on whether it is charged as 4th or 3rd degree felony.
Judges may consider considerations such as high breath alcohol scores in determining whether to deviate up from the mandatory minimums toward the maximum sentences. For some judges, this may be the case even when the prosecutor agrees to plea down the aggravated portion to a simple DWI/DUI. Most judges in the case of a simple first DWI/DUI will sentence the defendant to First Offender Program. There are those that will require jail time for very high breath alcohol scores even on a first DWI/DUI where it was pled down from aggravated to simple. Comparable outcomes may result in aggravated 2nd or 3rd DWI/DUI cases.