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.” 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; Per Se. This offense deals with operating a motor vehicle with a specific blood alcohol concentration (“BAC”). In New York, it is DWI per se to operate a motor vehicle with a BAC of .08% or more.

The third offense is Aggravated Driving While Intoxicated (“Aggravated DWI”). This offense is committed when a person (a) operates a motor vehicle with a BAC of .18% or more; or (b) operates a motor vehicle in violation of VTL §§ 1192(2), (3), (4), (4-a), with a child under the age of 16 in the vehicle.

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 which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver”.

The fifth offense deals with operating a motor vehicle while impaired by drugs (“DWAI Drugs”). While DWAI Alcohol is a traffic infraction, DWAI Drugs is a crime. The legal standard for DWAI Drugs, however, is the same as that of DWAI Alcohol. Specifically, a person is guilty of DWAI Drugs when the driver has consumed certain drugs 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.”

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 of alcohol and a drug or drugs.

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.

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. 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
  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 a 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 or 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 or 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; A period of probation of 3 years;
  2. Revocation of your driver’s license for at least 18 months. According to the new DMV regulations, you will be denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock device. See the section titled, Important Recent Changes to New York’s DWI Laws, below;
  3. DMV 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;
  7. A requirement that you attend a Victim Impact Panel and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

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 10 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 lifetime 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;
  7. A requirement that you attend a Victim Impact Panel and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

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; A period of probation of 3 years;
  2. Revocation of your driver’s license for at least 1 year (at least 18 months where the prior conviction was for Aggravated DWI).
  3. 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;
  7. A requirement that you attend a Victim Impact Panel and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

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 during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court; and 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.

Misdemeanor 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;
  7. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months

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

Misdemeanor 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 not prosecuted on the felony, but 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; A period of probation of 3 years;
  2. Revocation of your driver’s license for at least 18 months. According to the new DMV regulations, you will be denied full licensing until the expiration of the minimum revocation period. See the section titled, Important Recent Changes to New York’s DWI Laws, below;
  3. Discretionary revocation of your registration for at least 18 months;
  4. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  5. A driver responsibility assessment of $250 a year for 3 years;
  6. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

DWAI Drugs

Like DWI, DWAI Drugs is a crime, conviction of which will result in a lifetime criminal record.  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. If you are convicted of DWAI Drugs you are not eligible for a conditional license, but you may be eligible for a restricted use license (which is very similar to a conditional license). In addition, the ignition interlock device requirement is not applicable.

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. However, the ignition interlock device requirement is not applicable.

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 Manslaughter) within the past 10 years, you can be charged with a class E felony, and face the following potential consequences:

  1. A fine of between $1,000 and $5,000, up to 4 years in state prison, or both;
  2. A period of probation of 5 years;
  3. Revocation of your driver’s license for at least 1 year. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  4. Note that while DMV will revoke your license for at least 1 year, the Court can also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that this condition of probation has been removed;
  5. Discretionary revocation of your registration for at least 1 year;
  6. A surcharge of $520;
  7. A driver responsibility assessment of $250 a year for 3 years;
  8. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

If your predicate conviction was 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; during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court; and 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 charge is more than 5 years from your prior conviction, you may be eligible for a conditional license. However, even if you are eligible to drive, the Court may prohibit you from doing so as a condition of probation.

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 in the 1st or 2nd degree or Vehicular Manslaughter) TWICE within the past 10 years, you can be charged with a class D felony, and face the following potential consequences:

  1. A fine of between $2,000 and $10,000, up to 7 years in state prison, or both;
  2. A period of probation of 5 years;
  3. Revocation of your driver’s license for at least 18 months. In addition, DMV will require evidence of alcohol rehabilitation before it will ever relicense you;
  4. Note that while DMV will revoke your license for at least 18 months, the Court can also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that this condition of probation has been removed;
  5. Discretionary revocation of your registration for at least 1 year;
  6. A surcharge of $520;
  7. A driver responsibility assessment of $250 a year for 3 years;
  8. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

If your predicate DWI convictions were within the past 5 years, you are subject to the following additional mandatory penalties:

  1. 10 days in jail or 60 days of community service;
  2. You must install an ignition interlock device in each motor vehicle you own or operate; during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court;
  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.

Limits to Plea Bargaining

New York’s DWI laws contain various plea bargaining limitations applicable to DWI cases. For example, a charge of DWI, DWAI Drugs or DWAI Combined Influence generally cannot be reduced below DWAI Alcohol; and a charge of Aggravated DWI generally cannot be reduced below regular DWI.

Critically, however, the law does permit a plea bargain outside of this policy where the District Attorney determines that there is good cause for doing so (for example: An unlawful stop). If there were no ability whatsoever to reduce a charge outside of a legislatively imposed plea bargaining restriction, such restriction would be illegal.

Simply stated, not everyone charged with DWI is guilty, not every arrest for DWI is lawful, and not every officer making DWI arrests is competent. An experienced DWI lawyer is more likely to expose weaknesses in the case against you.

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 statute — 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 statute is applicable to a person who is charged with DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence and 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 statute is applicable to a 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 Drinking Driver Program (“DDP”). If you obtain a conditional license, you can use it until you are eligible for the return of your full driver’s license. However, if you are convicted of a moving violation (e.g., speeding, no seatbelt, etc.) while on a conditional license, the conditional license will be revoked by DMV.  If you are convicted of DWAI Drugs, you are not eligible for 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 your 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, which allows enough time for the Court paperwork to be entered into the DMV computer.

The Drinking Driver Program

To be eligible for a conditional license, you must, among other things, be eligible for, and participate in, the Drinking Driver Program (“DDP”), and not have any VTL § 1192 convictions within the past 5 years.

The DDP is comprised of 7 sessions. The sessions are held once a week, and last between 2 to 3 hours — for a total of 16 hours. The DDP addresses traffic safety issues and how the consumption of alcohol and drugs relates thereto.

All participants in the DDP 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 an alcohol-related offense 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. There is usually a fee associated with the Victim Impact Panel.

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.

Underage

In the context of New York DWI law, an “underage offender” is a person under 21 years of age. By contrast, a “youthful offender” is a person at least 16 years of age and under 19 years of age. As a general rule, the laws pertaining to, and the consequences of, alcohol- and drug-related driving offenses are similar for motorists over and under 21, with 3 major exceptions:

  1. Certain statutes such as the Zero Tolerance laws only apply to underage offenders,
  2. License suspension/revocation periods are generally longer for underage offenders, and
  3. Successful completion of the Drinking Driver Program does not terminate a driver’s license revocation for an underage offender.

DWI in New Jersey

1. No pre trial plea bargaining.
2. A refusal of a breathalyzer will result in a second charge.

Alcohol or drug related DUI with BAC of 0.10% or greater

License loss
Fines, fees & surcharges
Prison term
Community service, IDRC & Interlock
7 months–
1 year
$300–$500 fine
$230 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for 3 years) surcharge
$75 to Neighborhood Services Fund
Up to 30 days12–48 hours IDRC*
BAC 0.15% or greater: ignition interlock device during license suspension and 6 months - 1 year following restoration

Alcohol or drug related DUI with BAC greater than 0.08% but less than 0.10%

License loss
Fines, fees & surcharges
Prison term
Community service, IDRC & Interlock
3 months$250–$400 fine
$230 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for 3 years) surcharge
$75 to Neighborhood Services Fund
Up to 30 days12–48 hours IDRC*

Repeated DUI convictions

Offense
License loss
Fines, fees & surcharges
Prison term
Community service, IDRC & Interlock
2nd offense within 10 years2 years$500–$1,000 fine
$280 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,000/year (for 3 years) surcharge
$75 to Neighborhood Services Fund
48 hours–
90 days
30 days CS
12–48 hours IDRC*
Ignition interlock device during license suspension and 1-3 years following restoration
3rd offense within 10 years of 2nd offense10 years$1,000 fine
$280 IDRC* fee
$100 to drunk driving fund
$100 to AERF*
$1,500/year (for 3 years) surcharge
$75 to Neighborhood Services Fund
180 daysUp to 90 days CS (can reduce period of imprisonment)
12–48 hours IDRC*
Ignition interlock device during license suspension and 1-3 years following restoration