On average, almost 90,000 DWI related arrests are made in New York State every year! They can happen to almost anyone and can result in serious fines, dramatically increased insurance rates, loss of driving privileges and, sometimes, even jail or prison sentences. They are offenses that prosecutors and courts take very seriously and anyone charged with a DWI offense needs to be sure that they are represented by an attorney that understands one of the most intricate and complicated areas of criminal defense practice.

Defending people charged with alcohol related offenses is a very specific area of criminal law. Effective defense of DUI related charges sometimes involves seeking the best possible “plea agreement” with the District Attorney’s office. Other times, it may mean taking the charges to a trial. Whatever the situation, an attorney that understands both the law and the science of determining whether an individual is intoxicated, how that was determined by the police and whether proper procedures were followed, often determines the outcome of a case.

In New York State there are a variety of possible alcohol related vehicle offenses. Which offense is charged is determined by the “Blood Alcohol Content” (BAC) of the person arrested and whether or not they have had previous convictions for alcohol related motor vehicle offenses. In cases where a party, other than the intoxicated driver, is injured or killed very serious criminal charges may be filed, including reckless murder.


Driving While Ability Impaired (DWAI)

The lowest level of alcohol related motor vehicle offense is Driving While Ability Impaired (DWAI). Unlike virtually all other alcohol related vehicle offenses, it is not a criminal offense (misdemeanor or felony). Instead, it is a “violation” somewhat like a speeding ticket…like a very, very serious speeding ticket. To convict someone of DWAI the state must prove, beyond a reasonable doubt, that a person operated a motor vehicle while their ability to safely and lawfully operate that vehicle was impaired by having consumed alcohol. A first time conviction can result in a fine of up to $500, a jail sentence of up to 15 days and will result in a 90 day suspension of your driver’s license. A second conviction for DWAI within 5 years of another alcohol related vehicle offense dramatically increases all of those penalties. In addition, a conviction for DWAI will almost certainly lead to a substantial increase in your auto insurance rates.

DWAI is often a charge that a person arrested for DWI will end up pleading guilty to as a result of a “plea bargain”. Since it is not classified as a “crime” and has relatively small penalties, attorneys will often seek to convince district attorneys to agree to drop a DWI charge in return for a plea of guilty to DWAI. The likelihood that an attorney can, eventually, obtain such an agreement is often based on what kind of alcohol related driving record a defendant has. Also, in many counties the District Attorney’s office will have a “policy” of not plea bargaining a DWI charge down to a DWAI charge if the blood alcohol level was above a set percentage (ex. no plea down to DWAI if B.A.C. was above .14%). However, there is no consistency from one county to another at to what percentage B.A.C. is “too high” to negotiate a deal down to DWAI.


DWI-Driving While Intoxicated (Misdemeanor)

In New York State there are two different drinking and driving offenses that are misdemeanors (a lesser “crime”). They are known as “per se” Driving While Intoxicated (DWI) and “common law” DWI. Both offenses are spelled out in Vehicle and Traffic Law Sec. 1192.2 and 1192.3. Per se DWI is charged when a motor vehicle is operated by a person whom a chemical test of breath, blood or urine shows the driver had a blood alcohol content (BAC) equal to or higher than .08%. The important aspect to understand about a “per se” DWI charge is that to convict a person a prosecutor doesn’t have to show that the person acted intoxicated or showed signs that his/her ability to drive was impaired. All that has to be proved is that the blood alcohol level was at .08% or more and that person was operating a motor vehicle. However, that doesn’t mean that the conduct of the driver is irrelevant. In order to arrest someone and obtain a BAC sample of breath, urine or blood the police officer must have “probable cause” to believe that person is intoxicated. That “probable cause” is typically developed by observing the driver on the road and after stopping the driver, as well as, on the basis of what are known as “Field Sobriety Tests”. In contrast, “common law” DWI is all about the conduct of the person charged with the offense. It is based upon observations of a police officer and/or other witnesses who claim that the behavior and demeanor of the driver, along with the “Field Sobriety Tests” prove the driver was intoxicated.

A conviction on either a “per se” or “common law” DWI can result in a punishment of up to 12 months in jail, a fine of up to $1000 and the suspension of your drivers license for 6 months. A second DWI conviction within 10 years can dramatically increase the penalties. In some cases subsequent convictions can elevate the offense to a felony charge (the most serious type of crime) and involve very substantial prison time and fines.

SPECIAL ALERT- Recent changes to NYS DWI law have made it a felony to be driving while intoxicated (first offense) with a child under the age of 16 in the vehicle. Also, effective with convictions that take place after August 15, 2010 all persons convicted of DWI will have to have an “alcohol interlock” installed on all vehicles they own or drive. This law applies to first time offenders. The minimum installation period for the interlock is 6 month, maximum is 12 months for a first offense.


Aggravated Driving While Intoxicated (ADWI)

A new misdemeanor intoxication offense in New York was added in the summer of 2006. It is called Aggravated Driving While Intoxicated (ADWI). This offense is charged when a blood alcohol reading of .18% or greater is determined by a chemical test. If convicted of ADWI the possible penalties are much greater than a conviction for either “per se” or “common law” DWI (this includes fines, possible jail time and length of driving license suspensions/revocations). Due to a flaw in the language of the statute when it was passed, ADWI has not been prosecuted in 2006 (it is common for the police to charge ADWI, but the charges are usually reduced or dropped to standard DWI). However, the NYS legislature has passed a revised version of this statute and it became law in late December 2006. The revised statute is now being prosecuted throughout New York.

Misdemeanor DWI is the most common form of intoxication offense charged in New York State.


Driving While Ability Impaired-Drugs (DWAI-D)

Operating a motor vehicle while the ability to operate it safely has been “impaired by drugs” is an equivalent offense to DWI. It can be charged as either a misdemeanor or a felony and subjects the person charged with similar criminal penalties and NYS DMV license suspensions/revocations. A previous conviction (within past 10 years) for either DWI or DWAI-Drugs is the predicate for charging DWAI-Drugs as a felony. A person can be charged with DWAI-Drugs from the use of either a “controlled substance (i.e. illegal drug) or even a lawfully prescribed prescription drug. Probable cause for arrest is usually based upon the same Standardized Field Sobriety Tests used in DWI arrests. However, unlike DWI a “breath test” is not used to determine the level of intoxication. Rather, blood or urine tests are used to detect the presence of drugs. These tests can determine if drugs have been consumed in the recent past. However, they often cannot be used to determine whether someone was or was not intoxicated by drugs at the time they were driving (or arrested). Very often DWAI-Drugs is charged in conjunction with other criminal charges such as “Criminal Possession of a Controlled Substance” if the police also found drugs on the person or in the car of the individual arrested.


Chemical Tests and Test Refusals

Almost all DWI arrests involve the police requesting that the suspected intoxicated driver agree to provide a sample of their breath, blood or urine for chemical testing. Under NYS Vehicle and Traffic Law a refusal by a driver to provide such a sample will result in a revocation of their driver’s license or driving privilege in NYS for one year. A second refusal within 10 years of a previous refusal dramatically increases the revocation period. The chemical tests that invoke these harsh sanctions must be given by an officer who has been trained to give them (in the case of breath tests) and has been certified by the NYS Department of Health to give such tests. If a blood test is requested the blood must be drawn by a nurse, physician or other person trained and certified to draw blood. The actual testing of the blood or urine must be done in a certified laboratory (usually operated by a law enforcement agency). Chemical breath tests are admissible in court if the operator is properly trained and certified, if the follow a very precise procedure and the test equipment has been properly maintained and calibrated. The chemical breath test is almost always given at a police station. Sometimes police officers will use a hand held breathalyzer at the scene of an arrest. These machines are not considered accurate enough to provide reliable evidence of the degree of intoxication for use in court. However, they can be used to as “probable cause” to arrest someone. A refusal to take a field breath test does not invoke the revocation a driver’s license that a refusal to take a chemical breath test at a police station does. Refusal to take a field breath test is simply a minor traffic violation.


DWI-Driving While Intoxicated (Felony)

A person convicted of DWI is subject to being charged with DWI as a Felony if their second DWI arrest occurs within 10 years of the date of their first offense. Under NYS penal law there are two types of criminal offenses: misdemeanors and felonies. Misdemeanors are a less serious category of criminal offense which can be punished by up to one year in jail (county or city jail). Felonies are more serious offenses that are punishable by one year or more in state prison. Felony DWI is an “E-Felony.” This is the lowest category of offenses that are considered felonies. In order for a felony to be prosecuted an indictment must be issued by a Grand Jury which has heard the evidence and has, by majority vote, determined that a felonious offense probably was committed by the person indicted. A misdemeanor can be prosecuted simply on the basis of a document (called an “information”) filed by the District Attorney’s office. In 2010 a new form of felony DWI was added by statute when a driver is arrested for DWI and has a passenger in the vehicle under the age of 16. This felony offense is enforced and prosecuted aggressively by both police and District Attorney offices around New York State.