In his first assignment of error the defendant argues that the results of the breathalyzer test should have been excluded because the breathalyzer operator refused to retest him. At the time the breathalyzer test was administered in this case there was not a requirement that a second test be administered. The defendant had the right to a second test but we do not believe the officer who administered the first test could be required to administer the second one. This assignment of error is overruled.
In his second assignment of error the defendant contends there was error in the sentencing. We believe this assignment of error has merit. G.S. 20-179 provides for the imposition of sentences for persons convicted of impaired driving. After a person has been convicted of impaired driving the court must hold a sentencing hearing. There are five different levels of punishment and the level at which a person is sentenced depends on the aggravating and/or mitigating factors found by the court.
In this case the court stated at the end of the sentencing hearing that there were no aggravating factors. G.S. 20-179(d)(5) *359provides that two or more convictions within five years of an offense for which at least three points are assigned under G.S. 20-16 constitutes an aggravating factor. In this case there is evidence that the defendant was convicted of illegal passing and reckless driving in 1979. Four points are assigned by G.S. 20-16 for both these offenses. This would constitute an aggravating factor. G.S. 20-179(e)(l) provides that slight impairment and an alcohol concentration of less than .11 percent at any relevant time after driving constitutes a mitigating factor. In this case there was evidence of an aggravating factor and a mitigating factor.
The court held the defendant was subject to a level four punishment. It is not clear how the court reached this conclusion. The judge stated in open court that there were no aggravating factors but there was a mitigating factor. He checked a mitigating factor on the AOC form but then checked the place on the form showing there were no mitigating factors. If there were no aggravating or mitigating factors the court was required to impose a level four punishment. If there were not an aggravating factor and there was a mitigating factor the court could have concluded the mitigating factors substantially outweigh the aggravating factors in which case G.S. 20-179(f)(3) would require that a level five punishment be imposed.
If the court had correctly found that a level four punishment should have been imposed it erred in the imposition of the sentence. G.S. 20-179(j) limits the active term a defendant may receive as a part of a suspended sentence to 48 hours. In this case the court required the defendant to serve 30 days as a part of the conditions of the suspended sentence. This was error.
We find no error in the trial. We vacate the sentence for errors in concluding what level of punishment should be imposed and for the error in imposing a level four punishment. We order a new sentencing hearing.
No error as to the trial.
Vacated and remanded as to the sentence.
Judges BECTON and PARKER concur.