DWAI in New York
Driving While Ability Impaired, or DWAI, is the least serious Driving While Intoxicated-related charge in New York. DWAI, Vehicle and Traffic Law Section 1192(1), is not a crime, but rather a traffic infraction. Whereas, Driving While Intoxicated, or DWI, is a crime in New York. A conviction to DWAI or a plea bargain of DWAI will not result in a criminal record; however, a conviction to DWI does result in a criminal record. In addition, DWAI, which is related to alcohol, should not be confused with Driving While Ability Impaired by Drugs (DWAI By Drugs), which is a crime in New York.
Under New York Law, DWAI means operating a motor vehicle “while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.” Frequently, DWAI arrests occur when the driver’s chemical test result shows a BAC of greater than .05% but less than .08%. It is also routinely charged with DWI, whether the charge is per se or common law intoxication.
Reducing a DWI Charge to DWAI
District Attorneys (DAs) in New York’s 62 counties differ in their approach to DWI charges. However, in many New York counties it is possible to have a DWI charge reduced to DWAI. This is most likely to occur when:
- The breathalyzer or other chemical test result was .13% or less
- The driver has no prior arrests
- The DWI does not involve personal injury; and
- The DWI does not involve property damage
The impact of breathalyzer test refusal on the ability to reduce the charge to DWAI is inconsistent. Many counties have a specific policy against reducing a DWI charge to DWAI if the driver has refused a chemical test, whether by breath or blood. While some DAs will take a pragmatic approach and reduce the charges when the evidence is weak and a conviction a trial is unlikely, others stand firm on the policy and will not reduce the charge even where the chances of obtaining a conviction are low.
The maximum possible penalty for a first DWAI conviction is:
- A fine of up to $500
- A 90-day driver’s license suspension
- Up to 15 days in jail
In addition, the driver can expect:
- A $255 court surcharge (or $260 if the case is in a Town or Village Court)
- A $250 per year driver responsibility assessment for 3 years
The consequences are more severe under special circumstances, such as:
- A driver under the age of 21
- A driver holding a commercial driver’s license
However, it is very rare for a person with no prior DWI or DWAI offenses and no criminal history to be sentenced to jail for DWAI.