DWI - DWAI

The penalties for alcohol and drug related driving offenses are among the most serious in the New York Vehicle and Traffic Law. Whether charged with the infraction of DWAI, misdemeanor DWI, or felony DWI, each can dramatically alter your life.

Alcohol and drug related driving offenses are governed by Article 31 of the New York Vehicle and Traffic Law. Article 31 specifies a number of alcohol and drug related traffic offenses. A few are discussed below.

Driving While Ability Impaired (DWAI) - NY VTL 1192(1)

Motorists who operate a motor vehicle while impaired by the consumption of alcohol can be charged with DWAI. Motorists with a blood alcohol concentration between 0.5% to 0.7% are typically charged with DWAI. DWAI is a noncriminal traffic infraction. Criminal DWI charges are sometimes plea bargained to noncriminal DWAI depending on the individual circumstances including whether the motorist had a low blood alcohol concentration (BAC), his or her driving record, and the accompanying charges.

The Penalties for a first offense DWAI conviction can include:

Suspend junior learner's permit or license at arraignment pending prosecution
90 day license suspension if 21 years or older
Revoke license for 1 year if under age 21
$255 or $260 court surcharge
$300 to $500 fine
Driver responsibility assessment of $750
Up to 15 days in jail
Enrollment in the NY DMV Drinking Driving Program
Court may require attendance of Victims Impact Program
Increased insurance premiums or loss of insurance

Penalties increase with multiple convictions. For example, your license will be revoked for 6 months if you get a second conviction within 5 years and the maximum fine increases to $750. A third conviction in 10 years and it becomes a misdemeanor with a 6 month revocation of your license and a $1,500 maximum fine. Maximum jail time also increases to 30 days, and 180 days, respectively.

Driving While Intoxicated Per Se - NY VTL 1192(2)

Motorists who drive with a blood alcohol concentration of 0.08% or higher can be charged with DWI per se under NY VTL 1192(2). DWI per se is a crime. A first time DWI per se offender will be charged with a misdemeanor. The possible penalties if convicted can include:

Suspend license at arraignment pending prosecution
Revoke license for 6 months if age 21 years or older
Revoke license for 1 year if under age 21
$395 or $400 court surcharge
$500 to $1000 fine
$750 Driver responsibility assessment
Up to 1 year in jail
Enrollment in the NY DMV Drinking Driving Program
Court may require attendance of Victims Impact Program
Installation of ignition interlock device
Probation or conditional discharge
Increased insurance premiums or loss of insurance

Penalties are even stiffer for repeat offenders. For example, get a second conviction in 10 years and it becomes a Class E felony with up to a $5,000 maximum fine. A third conviction in 10 years and it becomes a Class D felony with up to a $10,000 maximum fine. Maximum jail time also increases to 4 years and 7 years, respectively. Repeat offenders within 5 years of an earlier conviction will also receive mandatory jail time or community service.

Aggravated Driving While Intoxicated - NY VTL 1192(2-a)(a)

Motorists who drive with a blood alcohol concentration of 0.18% or higher can be charged with aggravated DWI under NY VTL 1192(2-a)(a). Aggravated DWI per se is a criminal misdemeanor. The possible penalties if convicted can include:

Suspend license at arraignment pending prosecution
Revoke license for 1 year regardless of the offender's age
$395 or $400 court surcharge
$1,000 to $2,500 fine
$750 Driver responsibility assessment
Up to 1 year in jail
Enrollment in the NY DMV Drinking Driving Program
Court may require attendance of Victims Impact Program
Installation of ignition interlock device
Probation or conditional discharge
Increased insurance premiums or loss of insurance

Penalties are even stiffer for repeat offenders. For example, get a second conviction in 10 years and it becomes a Class E felony with up to a $5,000 fine. A third conviction in 10 years and it becomes a Class D felony with up to a $10,000 fine. Repeat offenders within 5 years of an earlier conviction will also receive mandatory jail time or community service.

Common Law DWI - NY VTL 1192(3)

Motorist can also be charged with common law DWI under NY VTL 1192(3). NY VTL 1192(3) states that that "no person shall operate a motor vehicle while in an intoxicated condition." Unlike DWI per se and aggravated DWI, a BAC test is not necessary. Instead common law DWI is typically based on the police officer's determination that he has probable cause to believe that you were driving while intoxicated. The possible penalties for common law DWI are essentially the same as those for DWI per se, except that in absence of a BAC test of 0.08% your license will not be suspended pending prosecution.

Chemical Test Refusal - NY VTL 1194

If arrested for drinking and driving, you will typically be asked to submit to chemical testing. New York, like all other states, is an "implied consent" state, which means that you give your consent to submit to a chemical test in return for the privilege to drive in New York.

Refuse the chemical test and your license may be revoked for a minimum of 1 year. Motorists who refuse the chemical test must attend a refusal hearing at the DMV. The refusal hearing is an administrative hearing that is separate and distinct from the court proceedings related to your DWI or DWAI charge. The refusal hearing will focus on the following issues:

did the police officer have reasonable grounds to believe the driver had been driving in violation of NY VTL 1192
was the arrest lawful
was the driver given sufficient warning that the refusal would result in immediate suspension and subsequent revocation of their license
did the driver refuse the test

Your license will be revoked for 1 year if the hearing officer determines that the answer to these questions is yes. This revocation is in addition to any suspension or revocation imposed by the court on your DWI or DWAI charge. Thus, the DMV refusal hearing could result in a 1 year revocation of your license even if you are found not guilty of your DWI or DWAI charge. Unfortunately, this administrative revocation is not eligible for a conditional license. The only way to possibly obtain a conditional license thereafter is to plea guilty to or be convicted of a drinking and driving offense.

Contact A DWAI Or DWI Ticket Attorney

Contact the Shelton Law firm if you are charged with DWAI or DWI. The Shelton Law Firm knows how to defend clients charged with a drinking and driving violation under NY VTL 1192. With the Shelton Law Firm on your side, you have the peace of mind to know that your DWAI or DWI attorney will zealously defend your rights.