DWAI Speedy Trial in New York

DWAI Speedy Trial is Not Forever Anymore: 90 Days or 6 Months, Depending on Other DWI Charges

Posted March 3, 2020

In DWI

Under 2020 criminal justice reform in New York, the legislature finally established a Driving While Ability Impaired or DWAI Speedy Trial time. But that’s only if DWAI is charged with the crime of Driving While Intoxicated. And the exact time depends if DWAI is charged along with misdemeanor or felony DWI.

Andrew M. Stengel, New York DWI Lawyer

Under New York State Vehicle and Traffic Law (“VTL”) Section 1192(1), Driving While Ability Impaired, states: “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.” Under VTL Section 1193(a)(1), a person who has not been convicted of DWI within the past 5 years, DWAI is punished by a traffic infraction punishable by a fine of not less than $300 and not more than $500 or by up to 15 days jail, or both. The court also imposes a surcharge. And Department of Motor Vehicles imposes a 90-day license suspension for a DWAI conviction and a Driver Assessment of $250 for 3 years.

Prior to New York’s criminal justice reform in 2020, traffic infraction was not defined for Speedy Trial, which is found in Criminal Procedure Law (CPL) Section 30.30. People charged with DWI in New York before 2020, where the only charge was Driving While Ability Impaired, usually after the DWI charge or charges were dismissed for Speedy Trial, were in a grey area. Courts generally refused to apply the CPL Section 30.30 rules that applied to violations, misdemeanors and felonies for DWAI, VTL Section 1192(1). For example, the 2018 decision of People v. Bernier in Albany City Court makes this exact point.

Effective January 1, 2020, CPL Section 30.30(1)(e) states: “for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions.” So, in New York, under CPL Section 30.30(1)(b), DWAI Speedy Trial time is 90 days when DWAI is charged with misdemeanor DWI, DWI Drugs or DWI Combined Drugs and Alcohol (no prior DWI), VTL 1192(2), VTL 1192(3), VTL 1192(4) and 1192(4-a). Under CPL Section 30.30(1)(a), DWAI Speedy Trial time is 6 months days when DWAI is charged with felony DWI, the same VTL sections plus VTL 1192(2-a)(b), Leandra’s Law.

That’s because the sections of the Criminal Procedure Law for misdemeanor and felonies both include the phrase where “a defendant is accused of one or more offenses…” And the change to Speedy Trial Law now defines an offense to include traffic infractions. But, once again, there is a hole in Speedy Trial law if Driving While Ability Impaired is the only charge when a person is arrested for an alleged drunk driving offense in New York.

Portable breath test during a DWI stop.

The definition of traffic infraction does not fall within the definition of a felony. Penal Law Section 10.00(5) defines a felony as “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.” The definition of misdemeanor, under Penal Law Section 10.00(4), specifically excludes a traffic infraction: an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.” The definition of violation, the third category of crimes in New York, though a conviction of a violation is not considered a criminal conviction under Penal Law Section 10.00(3) also excludes traffic infraction: “an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed. So, DWAI is not categorized as any of these. That means that if and when DWAI is the only charge that once again there no specific DWAI Speedy Trial time.