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New York DWI Defense

What is a DWI?

In New York, the Driving While intoxicated statute contains 6 separate offenses:

The first offense is Driving While Ability Impaired (“DWAI”). This offense is committed where the driver has consumed alcohol to the extent that he “has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” People v. Cruz, 48 N.Y .2d 419, 423 N.Y.S.2d 625 (1979). DWAI is a traffic infraction, not a crime. DWAI is an offense to which the more serious charge of Driving While Intoxicated is often reduced.

The second offense is Driving While Intoxicated (“Aggravated DWI”). This offense is committed when a person operates a motor vehicle with a BAC of 18% or more.

“The fourth offense is Driving While Intoxicated (“ DWI”). You can be charged with DWI regardless of whether there is a chemical test result (for example, if you refused to submit to a chemical test). The legal standard for DWI is that “ the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities that he is expected to possess in order to operate a vehicle as a reasonable and prudent driver”. People v. Cruz 48 N.Y.2d 419, 423 N.Y.S.2d 419, 423 N.Y.2d 625 (1979).”

The final offense is Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs (“ DWAI Combined Influence”). The standard for this self-explanatory offense is the same as for DWAI, only the Impairment can be from a combination of certain drugs or alcohol drugs and a drug or drugs.

In addition to these basic offenses, New York has additional DWI provisions which apply to commercial motor vehicles. See our Commercial Driver’s License page.

As with any criminal charge, the State bears the burden of proving the charge against you. Because of an increased political and public intolerance towards those who drink and drive, however, defending a DWI charge has become more complicated, and the penalties upon conviction have become more severe.

DWI PENALTIES

  • DWAI – First Offense
  • DWAI – Second Offense
  • DWAI – Third and Subsequent Offenses
  • DWI – First Offense
  • DWI – Second Offense
  • Aggravated DWI – First Offense
  • Aggravated DWI – Second Offense
  • DWAI Drugs
  • DWAI Combined Influence
  • Felony Offenses of DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence

DWAI – First Offense

A person is guilty of DWAI if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of alcohol. DWAI is a traffic infraction – not a crime. By contrast. DWI, DWAI Drugs and DWAI Combined Influence are crimes.

It is common for a person charged with DWI for the first time to receive a plea bargain offer reducing the charge to DWAI. However, while such an offer is common, it is by no means assured. For example, many District Attorney’s Offices will not offer a reduction to DWAI if the person had a BAC over a certain level (e.g., .13%). If the person refused to take a Breathalyzer test or s blood test, if there was an accident, if there was a child in the car, if the person was obnoxious to the police, if the person resisted arrest, etc.

If you are convicted of DWAI as a first offense, you face the following potential consequences:

  1. A fine of between $300 and $500, up to 15 days in jail, or both;
  2. Suspension of your driver’s license for 90 days (unless you are under 21 or possess a Commercial Driver’s License (“CDL”));
  3. A surcharge of $255 ($260 if the case is in either a Town or a Village Court);
  4. A driver responsibility assessment of $250 a year for 3 years; and
  5. A requirement that you attend s Victim Impact Panel.

You will most likely be eligible for the Drinking Driver Program and a conditional license.

DWAI – Second Offense

If you are convicted of DWAI after having been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs of DWAI Combined Influence within the past 5 years (the 5 years runs from the date of the prior conviction to the date of the present charge), you face the following potential consequences:

  1. A fine of between $500 and $750, up to 30 days in jail or both;
  2. Revocation of your driver’s license for at least 6 months. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  3. Discretionary revocation of your registration for at least 6 months;
  4. A surcharge of $255 ($260 if the case is in either a Town or a Village Court)’
  5. A driver responsibility assessment of $250 a year for 3 years; and
  6. A requirement that you attend a Victim Impact Panel.

You will not be eligible for a conditional license.

DWAI – Third and Subsequent Offenses

If you are charged with DWAI after having been convicted of 2 more violations of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 10 years, you can be charged with misdemeanor DWAI, in which case you face the following potential consequences:

  1. A fine of between $750 and $1,500, up to 180 days in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 18 months. In addition, DWV will require evidence of alcohol rehabilitation before it will ever relicense you;
  4. Discretionary revocation of your registration for at least 6 months;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.

You may be eligible for the Drinking Driver Program, but will not be eligible for a conditional license.

Even if the DWAI is not elevated to a misdemeanor, your driver’s license will still be revoked for at least 18 months, because once you have 3 or more VTL§ 1192 convictions within to years, DMV imposes a license revocation of 6 months per offense. Thus, 4 offenses within 10 years would result in a 24-month license revocation, etc. You will also be subject to increased license penalties if the offenses are committed within a short period of time (e.g., 3 convictions within 4 years, or 4 convictions within 8 years).

DWI – First Offense

DWI is a misdemeanor, conviction of which will result in a criminal record. If you are convicted of DWI as a first offense, you face the following potential consequences:

  1. A fine of between $500 and $1,000, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 6 months;
  4. Discretionary revocation of your registration for at least 6 months;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. 1.A requirement that you attend a Victim Impact Panel.

You may be eligible for the Drinking Driver Program and a conditional license.

DWI – Second Offense

If you are charged with DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony DWI. Nonetheless, if you are allowed to plead to misdemeanor DWI, you face the following potential consequences:

  1. A fine of between $500 and $1,000, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 1 year (at least 18 months where the prior conviction was for Aggravated DWI). In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  4. Discretionary revocation of your registration for at least 1 year;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.

If you are convicted of misdemeanor DWI after having been convicted of misdemeanor DWI within the past 5 years, you are subject to the following additional mandatory penalties:

  1. 5 days in jail or 30 days of community service;
  2. You must install an ignition interlock device in each motor vehicle you own or operate; and
  3. You must receive an alcohol or substance abuse assessment, which may result in the imposition of treatment as a condition of a sentence of probation or conditional discharge.

If the new DWI charge is more than 5 years from your prior conviction, you may be eligible for a conditional license.

Aggravated DWI – First Offense

Aggravated DWI is a misdemeanor. If you are convicted of Aggravated DWI as a first offense, you face the following potential consequences:

  1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 1 year;
  4. Discretionary revocation of your registration for at least 1 year;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.

You may be eligible for the Drinking Driver Program and a conditional license. If you are convicted of Aggravated DWI and sentenced to probation, the Court is required to order you to install an ignition interlock device in any vehicle you own or operate.

Aggravated DWI – Second Offense

If you are charged with Aggravated DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony Aggravated DWI. Nonetheless, if you are allowed to plead to misdemeanor Aggravated DWI, you face the following consequences:

  1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 18 months;
  4. Discretionary revocation of your registration for at least 18 months;
  5. A surcharge of $395 ($400 if the case in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.

If you are convicted of Aggravated DWI and sentenced to probation, the Court is required to order you to install an ignition interlock device in any vehicle you own or operate.

DWAI Drugs

Like DWI, DWAIs Drugs is a crime, conviction of which will result in a lifetime criminal record. It is critical to note that the standard of proof for DWAI Drugs is the same as that for DWAI Alcohol (that is, a person is guilty of DWAI Drugs if he/she operates a motor vehicle while his/her ability to do so is Impaired to any extent by any consumption of certain drugs). In other words. DWAI Drugs is the same level offense as DWI, but you only need to be impaired – not intoxicated – to be convicted of this offense.

The consequences of DWAI Drugs are virtually identical to those of DWI, with a critical exception. Due to a glitch in the law, if you are convicted of DWAI Drugs you are not eligible for a conditional license, but you may eligible for a restricted use license (which is very similar to a conditional license).

DWAI Combined Influence

The crime of Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs is self-explanatory. The consequences of a conviction of this offense are virtually identical to those of DWI.

Felony Offenses of DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence

If you are charged with DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence after having been convicted of one of those offenses (or Vehicular Assault or Vehicular

  • Test Refusals – Generally
  • Civil Sanctions for Chemical Test Refusal – First Offense
  • Civil Sanctions for Chemical Test Refusal – Repeat Offenders
  • Chemical Test Refusal Revocation – Underage Offenders
  • Chemical Test Refusal Revocation Runs Separate and Apart From Suspension/Revocation for DWI/ DWAI
  • Should You Refuse to Submit to a Chemical Test?
  • DMV Refusal Hearing

Test Refusals-generally

In New York, there are two primary consequences of refusing to submit to a chemical test (e.g., a breath test or a blood test). First, the refusal generally can be used against you at trial as consciousness of guilt evidence. Second, the refusal is itself a civil violation- wholly independent of the DWI charge in criminal court -Which results in proceedings before a DMV Administrative Law judge, and generally in both (a) a significant drivers license revocation, and (b) a civil penalty (ie, a fine)

Civil Sanction for chemical Test Refusal -First Offense

A Chemical test refusal is considered to be a first offense if, within the past 5 years, you have neither (a) had your driving privileges revoked, for refusing to submit to a chemical test, nor (b) been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI combined influence (not arising out of the same incident ).

The civil sanction for refusing to submit to a chemical test as a first offense are:

  1. Revocation of your driver’s license for 1 year (18 months if you have a CDL):
  2. A Civil penalty of $ 500: and
  3. A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction arising out the same incident).

Civil Sanctions for chemical Test Refusal -Repeat Offenders

A chemical test refusal is considered to be a repeat offense if, within the past 5 years, you have either (a) had your driving privileges revoked for refusing to submit to chemical test, or (b) been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI combined influence or Zero Tolerance (not arising out of the same incident).

  1. Revocation of your driver’s license for 1 year (18 months if you have a CDL);
  2. A civil penalty of $ 500; and
  3. A driver responsibility assessment of $ 250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction arising out of the same incident).

The civil sanction for refusing to submit to a chemical test as a first offense are:

  1. Revocation of your driver’s license for 1 year (18 months if you have CDL);
  2. A civil penalty of $ 250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction arising out of the same incident).

Civil Sanctions for chemical Test Refusal- Repeat Offenders

A chemical test refusal is considered to be a repeat offense if, within the past 5 years, you have either (a) had your driving privileges revoked for refusing to submit to a chemical test, or (b) been convicted of DWAI, DWI , Aggravated DWI, DWAI Drugs, DWAI combined influence or zero Tolerance (not arising out of the same incident).

The Civil Sanctions for refusing to submit to a chemical test as a repeat offender are:

  1. Revocation of your drivers’s license for 18 months (at least 10 years if you have a CDL);
  2. A Civil penalty of $750 (unless the predicate was a violation of the zero Tolerance Law, in which case the civil penalty is $500); and
  3. A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction arising out the same incident).

In addition, DMV will require evidence of alcohol and/or rehabilitation before it will ever relicense you.

Chemical Test Refusal Revocation -underage offenders

If you under 21 and are found to have refused to submit to chemical test as a first offense, your driver’s license will be revoked for 1 year. If you have a prior refusal or a conviction of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI combined influence or zero Tolerance, your driver’s license will be revoked for at least 1 year or until you turn 21, whichever is longer.

Chemical Test Refusal Revocation Runs Separate and Apart From suspension /Revocation for DWI/DWAI

The license revocation for a chemical test refusal is a ”civil” or ”administrative” penalty separate and district from the license suspension/revocation, which results from a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction in criminal court. As such, the suspension/revocation periods run separate and apart from each other to the extent that they do not overlap.

In other words, to the extent that a DWAI, DWAI, Aggravated DWI, DWAI Drugs or DWAI combined influence suspension/revocation and a chemical test refusal revocation overlap, DMV runs the suspension/Revocation periods concurrently. By contrast, to the extent that the suspension/revocation periods do not overlap, DMV runs the suspension /revocation periods consecutively.

Should you Refuse to submit to a chemical Test?

There is so simple answer (or even necessarily a correct answers) to the question of whether you should submit to a chemical test in a given situation-a question which usually arises in the middle of the night! The answer depends upon many factors, such as whether there has been accident involving serious physical injury or death , whether the DWI charge is a felony, whether you are a repeat/multiple offender, whether you need to drive to earn a living, whether the test result is likely to be above the legal limit , whether there is a plea bargaining policy in the country in which you are arrested with regard to test refusals and/or BAC limits (eg ., no reduction to DWAI if the defendant’s BAC is above. 13%), etc.

The following general rules represent our current opinion on this issue:

  • If there has been an accident involving serious physical injury or death-refuse the test
  • If the DWI charge is a felony -refuse the test
  • In virtually every other situation -take the test
  • Of course , the answers is substantially more complicated than this, and requires the advice of counsel on a case -by -case basis.

DMV Refusal Hearing

If you refuse to submit to a chemical test, you have the right to a due process hearing before a DMV Administrative Law judge. Although the odds are certainly against you at the hearing, such hearings are definitely winnable -and can also provide critical information with regard to your DWI case in criminal court (if the case is still pending).

  • suspension pending prosecution
  • condition License
  • The 20- Day order
  • License suspensions Vs. Revocation
  • The drinking Driver program
  • Victim impact panel
  • Driving while suspended or revoked is a crime
  • Lifetime Revocation – Two convictions of DWI or DWAI Drugs involving
  • Accidents causing physical injury

Suspension Pending Prosecution

if you are charged with DWI, you should be aware of several statutes which, if applicable, call for the mandatory and/or permissive suspension of your driver’s license while the case is pending. The first statue- to the so-called ”prompt suspension law” – is applicable to a person who is charged with DWI and who is alleged to have had a BAC of .08% or more at the time of his or her arrest.

A second statue is applicable to a person who is charged with DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence ans who either (a) has been convicted of any violation of VTL $1192 within the past 5 years , or (b) is charged with vehicular Assault or vehicular Homicide in connection with the current incident.

A third Statue is applicable to person who is charged with DWAI, DWI , DWAI Drugs or DWAI combined influence and who is alleged to have refused to submit to a chemical test.

Since suspension pending prosecution generally takes place at arraignment, and since there may be legitimate defenses to such suspension, it is critical that you consult an experienced DWI attorney prior to your first court appearance.

Conditional License

A conditional license allows you to drive:

  1. To,from and during work;
  2. To and from the drinking Driver Program and any related alcohol/drug treatment
  3. To and from school;
  4. To and from probation;
  5. To and from DMV;
  6. To and from medical treatment;
  7. To and from your child’s school or day care provider; and
  8. For one 3-hour time period per week to run errands,

To be eligible for a conditional license, you must be eligible for, and participate in, the Impaired Driver Program (”IDP”) . However, there are numerous conditional license disqualification. TO find out if you are eligible foe a conditional license, you should consult with a knowledgeable DWI attorney (or with DMV).

If you obtain a conditional of DWAI Drugs, you are not eligible for the return of your full driver license. However, if you are convicted of a moving violation (eg, speeding , no seat belt etc.) while on a conditional license, the conditional will be revoked by DMV.

If you are convicted of DWAI Drugs, you are not eligible foe a conditional license. However, you may be eligible for a restricted use license. A restricted use license is very similar to a conditional license, as are the eligibility requirements therefore.

The 20- Day Order

DMV will not issue you a conditional or restricted use license until your DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction has been entered into the DMV computer (assuming you are eligible for one). As a result, there is usually a delay of 10 to 18 days between the date that the court takes license (at sentencing)and the date that you can obtain a conditional or restricted use license.
To get you through this time period, most courts will grant you a ”20 Day order”. This document lets you keep driving for 20 days from the date that you are sentenced allows enough time for the court paperwork to be entered into the DMV computer.

License Suspension V.S . Revocations

There is a critical difference between a driver license suspension and a driver license revocation. A license suspension is for a fixed time period, which ends automatically upon your payment of a suspension termination fee. In other words, once you have served out your suspension time, DMV will reinstate your full driver license the minute you pay the required suspension termination fee –with no review of your driving record.

By contrast, with certain exception, a license revocation is not for a fixed time period, and does not end automatically. Rather, a license revocation is for a minimum time period, which will never, ever end until, among other things, you both(a) submit a reapplication to DMV with appropriate reapplication fee, and (b)
submit adequate proof to DMV that you have completed all required alcohol and/or drug treatment. In addition, when you reapply following a license revocation, DMV will conduct review of your driving record, and will deny your application if, among other things, your driving record contains too many “negative units” (you accumulate a certain number of negative units for each conviction of a moving violation).A critical exception to general rules provided in the section is that, if you enroll in and successfully complete the drinking driver program (including all required alcohol and/or drug treatment). DMV will terminate any outstanding suspension/revocation resulting from a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI combined influence conviction unless (a) you are under 21, (b) you possess a Commercial driver’s License, or (c) you were also revoked for refusing a chemical test.

The Impaired Driver Program

To be eligible for a conditional license, you must, among other things, be eligible for, and participate in the Impaired Driver Program (“IDP”) and not have any VTL § 1192 convictions within the past 5 years.
The IDP is comprised of 7 sessions are held once a week, and last between 2 to 3 hours – for a total of 16 hours. The IDP addresses traffic safely issues and how the consumption of alcohol and drugs relates thereto.
All participants in the IDP are screened for alcohol and/or drug abuse. If a potential problem is detected, you will be referred for further evaluation (which is done through a qualified private treatment provider of your choice). If such further evaluation determines that alcohol and/or drug treatment is recommended, you must complete such treatment before your full driver’s license will be restored.

Victim Impact Panel

Most people convicted of DWAI or DWAI related are sentenced to attend a Victim Impact Panel. This is a program in which presentations are made concerning the harm caused by, and the impact of, driving while intoxicated. The presentations are generally made by people who have lost friends and/or family members as a result of alcohol- or drug-related accidents.

Driving While Suspended or Revoked is a Crime

If you are caught driving while your driver’s license is suspended or revoked, you will be charged with the crime of Aggravated Unlicensed Operation of a Motor Vehicle (“AUO”)

Lifetime Revocation – Two Convictions of DWI or DWAI Drugs Involving Accidents Causing Physical Injury

If you are convicted twice of DWI, DWAI Drugs or DWAI Combined Influence involving accidents where physical injury resulted (including physical injury to yourself), your driver’s license will be permanently revoked.

DMV is Required to Correct Improper License Suspension/Revocation

Where a Court fails to impose, or incorrectly imposes, a license suspension or revocation for a DWI-related offense, the Department of Motor Vehicles is required by law to fix the mistake, and to impose the correct suspension/revocation.

By Eric Sachs