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Driving While Intoxicated Laws in New York

Facing DWI charges can be frightening and confusing–beginning with the terminology. New York law refers to Driving While Intoxicated (DWI), but the name of the crime varies from state to state, so you’ve probably heard the terms DUI (Driving Under the Influence), OUI (Operating Under the Influence) and OWI (Operating While Intoxicated) as well. Don’t worry. We are here to help you understand the charges, the possible penalties for DWI or DWAI in New York, and the defenses available to you.

The first thing you should know is that there are several different charges associated with driving under the influence of drugs or alcohol.

New York DWI

There are a few different ways a driver can be charged with misdemeanor Driving While Intoxicated by alcohol in the state of New York.

Chemical Test Failure / Per Se Intoxication

The first and most straightforward is that the driver is charged with operating a motor vehicle with a blood alcohol content (BAC) of .08 percent or higher. This is often referred to as a “per se” DWI and is defined in Vehicle and Traffic Law Section 1192(2). Note that while .08 is often referred to as the legal limit, the legal limit is actually below .08 percent. At .08 (and above), the driver is violating the law.

A case involving a chemical or blood test result of .08 percent or greater may seem open and shut, and the prosecution will typically view that test result as strong evidence. But, there are a number of possible ways to challenge a chemical test result at trial. Failing a breathalyzer test does not necessarily mean a conviction!

If you’ve failed a chemical test, contact us today to find out how you may still be able to fight the charges against you.Learn More

DWI Without a Chemical Test Result / Common Law Intoxication

When a driver refuses the breathalyzer test, the state may still pursue a charge of common law intoxication, which is defined in Vehicle and Traffic Law Section 1192(3). It is unlawful in the state of New York to “operate a motor vehicle while in an intoxicated condition.”

Obviously, “in an intoxicated condition” is not nearly as clear as “BAC of .08 percent or greater.” That means, depending on the evidence, it is generally more difficult for the prosecution to meet its burden of proving guilt beyond a reasonable doubt. However, drivers can be convicted of Driving While Intoxicated without a chemical test result.

Some of the most common evidence used by prosecutors in DWI cases with no breathalyzer test result include:

  • Performance of coordination tests, which are videotaped in New York City
  • Performance of standardized field sobriety tests, which are more often performed by police outside of New York City
  • Observations of the officer, including
    • Watery and/or bloodshot eyes
    • Slurred speech
    • Unsteadiness on feet
    • Odor of an alcoholic beverage
If you’ve been charged with DWI and didn’t submit to a breathalyzer or blood test, talk to a seasoned criminal defense attorney today to learn more about the possible weaknesses in your case.Contact Us

DWI Penalties in New York

Most first-offense DWI cases are misdemeanors, meaning that the maximum possible direct penalty includes:

  • Up to 1 year in jail
  • A fine of up to $1,000
  • 6-month driver’s license revocation
  • Up to 3 years’ probation

There are additional costs and consequences associated with a DWI conviction. For example, you can expect:

  • A court surcharge of $395 (or $400 if in a Town or Village Court)
  • A driver responsibility assessment of $250 per year for 3 years
  • Required installation of an ignition interlock device on any car owned or operated by the person who was convicted for at least 6 months.As a practical matter, however, the typical first-time DWI offender with little or no criminal history is not sentenced to jail time in New York. In many instances, even a second-time offender may escape jail time.

If you’re facing DWI charges, there’s a lot on the line. Don’t try to handle it alone—contact us today and get the help you need.

Indirect Consequences of a DWI Conviction

A Driving While Intoxicated conviction, which results in a criminal record, will have consequences beyond the penalties and restrictions imposed by the legal system. For example, the conviction may impact eligibility for certain employment and licensing.

DWAI in New York

new-york-dwi-attorneyDriving While Ability Impaired (DWAI) is the least serious DWI-related charge in New York. DWAI, Vehicle and Traffic Law Section 1192(1), is not a crime, but rather a traffic infraction.

DWAI is technically defined as 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.

Talk to an attorney in our office to find out whether you’re likely to qualify for a reduction from DWI to a non-criminal DWAI.Learn More

DWAI Penalties

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.

Aggravated DWI in New York

If the driver’s BAC is .18% or higher, the charge will be Aggravated DWI—even if the defendant has no criminal history. Aggravated DWI, Vehicle and Traffic Law Section 1192(2-a), generally carries more serious penalties than a straight Driving While Intoxicated charge, but it is still only a misdemeanor. That means that the maximum term of imprisonment remains one year. The primary difference in penalties is that an aggravated DWI conviction may result in:

  • A fine of $1,000 to $2,500
  • A minimum 1-year driver’s license suspension, with the possibility of a suspension for a second year
  • Required installation of an ignition interlock device on any car owned or operated by the person who was convicted for at least 6 months.
An aggravated DWI conviction is expensive and restrictive. If you’ve been charged with aggravated DWI, don’t delay–contact us today.Get in Touch

Felony DWI in New York

Driving with an extremely high BAC isn’t in and of itself a felony in the state of New York. However, there are certain circumstances under which a person accused of Driving While Intoxicated will be charged with a Class E felony. The most common include:

  • When the driver has a prior DWI conviction in any state within the previous ten years
  • When the driver has a passenger who is 15 year old or less

The penalties for conviction of felony DWI may include:

  • Up to 4 years in state prison
  • A fine of between $1,000 and $5,000
  • A court surcharge of $250
  • A driver responsibility assessment of $250 per year for three years
  • Probation for up to 5 years
  • License revocation for one year, which may be extended by the court
  • Mandated use of an ignition interlock device or at least 6 months
You cannot afford to gamble. If you’re facing aggravated DWI charges in New York, get help right now.Contact Us
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