Habitual DWI in North Carolina: when a DWI becomes a felony

The elements of habitual impaired driving

Every North Carolina DWI, first or fifth, is charged under G.S. 20-138.1 as driving while impaired; "DUI" is the everyday word for it. Habitual impaired driving is a separate statute that turns the same conduct into a felony because of the driver's record.

The State must prove two things. First, that the person "drives while impaired as defined in G.S. 20-138.1": on a highway, street or public vehicular area, either "under the influence of an impairing substance," with "an alcohol concentration of 0.08 or more" at any relevant time after the driving, or with "any amount of a Schedule I controlled substance" or its metabolites in the blood or urine. Second, that the person "has been" "convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within 10 years" of the date of the new offense. Three priors in ten years is the line; a driver with two priors within seven years is sentenced as a misdemeanor at Level One or above, covered on the second offense page.

The list of offenses that count is in G.S. 20-4.01(24a), and it is longer than a plain DWI:

• "Impaired driving under G.S. 20-138.1."
• "Any offense set forth under G.S. 20-141.4 when conviction is based upon impaired driving" (death or serious injury by vehicle).
• "First or second degree murder under G.S. 14-17 or involuntary manslaughter under G.S. 14-18 when conviction is based upon impaired driving."
• "An offense committed in another jurisdiction which prohibits substantially similar conduct," so out-of-state convictions count.
• "A repealed or superseded offense substantially similar to impaired driving, including offenses under former G.S. 20-138."
• "Impaired driving in a commercial motor vehicle under G.S. 20-138.2."
• "Habitual impaired driving under G.S. 20-138.5," so a habitual conviction itself counts as a prior for the next ten years.

The under-21 offense of driving after consuming in G.S. 20-138.3 is not on the list. The ten years run from each prior conviction to the date of the new offense, the same way the seven-year rule for a grossly aggravating factor is measured.

Why it is a felony, and what that changes

A misdemeanor DWI is sentenced under the six levels of G.S. 20-179, where even the harshest level, Aggravated Level One, is a misdemeanor with a maximum of 36 months. Habitual impaired driving leaves that scheme. Subsection (b) of G.S. 20-138.5 says the person "shall be punished as a Class F felon and shall be sentenced to a minimum active term of not less than 12 months of imprisonment, which shall not be suspended." The word active is the difference: at Level One a judge may suspend the term on 30 days of special probation, and at Aggravated Level One on 120 days, but a habitual sentence has a floor of a year that no probation can replace. The statute adds that "sentences imposed under this subsection shall run consecutively with and shall commence at the expiration of any sentence being served," so the year does not overlap with time owed on another case.

A felony also changes the courtroom. Misdemeanor DWI is tried by a judge in district court, where "jury trials are not available"; a felony is heard in Durham County Superior Court, which is Superior Court District 16 and sits in the same building at 510 South Dillard Street, with a jury deciding any contested facts. The District Attorney for Prosecutorial District 16 is on the eighth floor of that courthouse. A defendant who cannot afford a lawyer may ask for court-appointed counsel; the Durham Public Defender's office is also at 510 S Dillard St, and under G.S. 7A-455.1 a convicted defendant pays an appointment fee of "seventy-five dollars ($75.00)." Court costs are higher in superior court on the 2026 AOC chart, where the General Court of Justice fee is $154.50 rather than the district court's $147.50. What a DWI lawyer costs is covered separately.

The license: a permanent revocation

Subsection (d) is one sentence: "A person convicted under this section shall have his license permanently revoked." The subsection contains no restoration language. The 30-day civil revocation still applies at the time of the charge, as on any implied-consent offense, and is covered on the license page.

Elsewhere in Chapter 20 the statutes do contemplate a license after a permanent revocation, on conditions. G.S. 20-17.8(a1) applies the ignition interlock requirement to "a person whose license was revoked as a result of a conviction of habitual impaired driving, G.S. 20-138.5," and sets the interlock period at "seven years from the date of restoration if the original revocation was a permanent revocation," at a 0.02 setting. G.S. 20-19(e1) lets the DMV "conditionally restore the license of a person to whom subsection (e) applies after it has been revoked for at least three years," where subsection (e) is the permanent revocation for a driver with two or more prior impaired-driving offenses whose most recent was within five years, and the condition is no motor vehicle, alcohol control or drug conviction in the three years before applying. G.S. 20-19(c3) also names habitual impaired driving among the convictions whose restored license carries an alcohol-concentration restriction. Whether and how the DMV applies these provisions to a revocation under G.S. 20-138.5(d) is not something this guide can answer from the statutes; a lawyer or a DMV hearing officer can.

Driving during the revocation is its own crime. Under G.S. 20-28(a1), driving while revoked for an impaired-driving revocation is a Class 1 misdemeanor, and the license is revoked "for an additional period of one year" for a first offense, "two years for the second offense" and "permanently for a third or subsequent offense."

The vehicle: seizure and forfeiture

Subsection (e) of G.S. 20-138.5 makes the car part of the punishment. The "motor vehicle...becomes property subject to forfeiture in accordance with the procedure set out in G.S. 20-28.2," and the subsection applies to the vehicle "that was driven by the defendant at the time the defendant committed the offense." An owner other than the defendant can defeat the forfeiture by showing he or she "did not know and had no reason to know that the defendant had been convicted within the previous seven years."

Seizure can happen at the roadside, before any conviction. G.S. 20-28.3 applies when a DWI is committed while "the drivers license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation," or by a driver without a valid license and without liability insurance; in those cases "the officer shall seize the motor vehicle and have it impounded." A driver charged with habitual DWI whose license is still revoked from a prior DWI falls under this section. The AOC's vehicle seizure FAQ (form AOC-CR-329) explains what follows: "You must pay all accumulated towing and storage charges to the company holding the vehicle before the company will release the vehicle to you"; an owner who is not the defendant can regain the vehicle by demonstrating to the clerk's office that he or she is "innocent"; a defendant-owner can "post a bond equal to the fair market value of the vehicle" to hold it temporarily; a lienholder with a perfected security interest can seek release; and on conviction the court may "transfer the vehicle to the local school board (also known as 'forfeiting' the vehicle)." After forfeiture the vehicle may be sold "after expiration of 90 days from the date of seizure."

Bond and the jail in Durham

Durham's bail and pretrial release policy for the Sixteenth Judicial District, effective December 1, 2025, lists one impaired-driving charge by name: "For Habitual DWI* $30,000.00 $45,000.00." That range sits far above the policy's misdemeanor table, which tops out at $500 to $1,500 for a Class A1 misdemeanor. The policy's general rule is that a judicial official must impose a written promise to appear or an unsecured bond for anyone not charged with a violent offense, unless release on those terms "will not reasonably assure the appearance" of the defendant, and may set a secured bond "if, and only if" the lesser conditions "will not reasonably assure the appearance of the defendant as required," "will pose danger of injury to any person," or are "likely to result in destruction of evidence." The policy also requires the judicial official to ask about citizenship status in "any offense involving impaired driving."

A secured bond can be posted in cash, by a mortgage on real property, or through a surety such as a bail bondsman licensed by the North Carolina Department of Insurance. Release conditions on an impaired-driving charge can prohibit alcohol while the case is pending. The court page covers the case from the first setting on.

Other felony-level impaired-driving charges

Habitual impaired driving is the only charge that makes a DWI itself a felony, but the definition of an offense involving impaired driving points to others. Death by vehicle and serious injury by vehicle under G.S. 20-141.4 are offenses involving impaired driving "when conviction is based upon impaired driving"; a conviction under 20-141.4 brings a mandatory revocation under G.S. 20-17(a)(9) and, except for a conviction under subsection (a2), the interlock requirement of G.S. 20-17.8 on restoration. Murder and involuntary manslaughter convictions "based upon impaired driving" are on the same list. None of these is eligible for expunction: G.S. 15A-145.5(a1) says "an offense involving impaired driving as defined in G.S. 20-4.01(24a) is not eligible for expunction," and that definition includes habitual impaired driving.

Two things a felony charge is often confused with are still misdemeanors. Aggravated Level One under G.S. 20-179(f3), created by S.L. 2011-191 to increase the punishment for DWI offenders with three or more grossly aggravating factors, carries up to 36 months and "shall not be eligible for parole" if served as an active term, but it is a misdemeanor sentence; in fiscal year 2025, 566 DWI convictions statewide, 2% of the total, were sentenced there. And driving while revoked for an impaired-driving revocation is a Class 1 misdemeanor under G.S. 20-28(a1). The full level table is on the penalties page.