The state of New York has been prosecuting drivers for DWI for over a century. In fact, New York passed the nation’s first drunk driving law back in 1910. Since that time, the laws governing intoxicated driving in this state have expanded and grown quite complicated. While this is a general look at New York’s drunk driving laws, if you are charged with any crime related to driving and drinking, you’ll need to obtain the specific legal advice pertinent to your own circumstances by discussing your case with an experienced Westchester County DWI attorney.

In the state of New York, DWI stands for “driving while intoxicated,” and it’s the legal term for operating a motor vehicle while under the influence of alcohol and/or other intoxicating drugs. A number of laws in New York govern intoxicated driving, and the charges available to prosecutors include “standard” DWI, “aggravated” DWI, and “DWAI” or “driving while ability impaired.” Knowing what these charges mean and how prosecutors use them is important if you drive in New York, because the penalties for each of these charges are substantially different.

WHAT ARE THE PENALTIES FOR “STANDARD” DWI?

If you drive anywhere in New York after consuming alcohol, and if your blood alcohol content (BAC) level measures at 0.08 percent or higher, you can be charged and prosecuted for “standard” DWI. The penalties for a first-offense driving while intoxicated conviction can include a fine of up to $1,000, up to a year in jail, or both, and a driver’s license revocation for at least six months.

A second standard DWI offense within ten years of the first conviction is punishable by a fine of up to $5,000, up to four years behind bars, and a driver’s license revocation for at least a year. The 0.08 percent legal limit applies to most adult drivers age 21 and above, but for drivers under 21, the legal limit is 0.02 percent, and for drivers operating with a CDL (commercial driver’s license) the legal limit is also 0.02 percent.

WHAT IS “AGGRAVATED” DWI AND WHAT ARE THE PENALTIES?

However, if you are driving in New York and your BAC level is measured at 0.18 percent or higher – more than double the legal limit – you can be charged with “aggravated” DWI. The penalties for a first-offense aggravated DWI conviction can include a fine of up to $2,500, up to a year in jail, or both, and a driver’s license revocation for at least a year. A second aggravated DWI offense within ten years of the first conviction is punishable by a fine of up to $5,000, up to four years behind bars, and a driver’s license revocation for at least eighteen months.

WHAT IS DWAI?

DWAI – driving while ability impaired – can be charged in two ways in New York: driving while ability impaired by alcohol and driving while ability impaired by drugs. When a driver’s BAC level measures from 0.05 percent to 0.07 percent, DWAI can be charged. Although DWAI by alcohol is considered a traffic infraction rather than a crime, the penalties for a conviction are similar to the penalties for DWI. (DWAI by drugs is considered a crime, as explained below.)

A conviction for a first DWAI by alcohol is punishable by up to fifteen days in jail, a fine of up to $500 (plus a mandatory $260 “surcharge”), or both, and a mandatory ninety-day driver’s license suspension. To be convicted for DWAI by alcohol, the state must prove beyond a reasonable doubt that a driver was impaired. This is often difficult when the defendant’s BAC level measured below 0.08 percent, so anyone charged with DWAI by alcohol should seek the legal advice and services of an experienced Westchester County DWI attorney.

DWAI by drugs is the charge when a driver is operating a motor vehicle while under the influence of intoxicating drugs other than alcohol. DWAI by drugs is a criminal offense which comes with much more serious penalties than DWAI by alcohol. A first conviction for DWAI by drugs is punishable by a fine of up to $1,000, up to a year in jail, or both, and a driver’s license suspension for at least six months. A second DWAI by drugs conviction within ten years of the first conviction is punishable by a fine of up to $5,000, up to four years behind bars, and a driver’s license revocation for at least one year.

CAN I REFUSE A BREATHALYZER TEST?

Implied consent is the law in New York, so you cannot refuse a breathalyzer examination. Simply by driving in this state, you have already legally consented to submit to a breathalyzer test (or to a blood or urine test) to measure your blood alcohol content level if asked to do so by a police officer in this state. If you refuse to be tested, you can be fined $500, and your driver’s license will be revoked for at least a year. For commercial drivers, the fine for refusal to test is $550 and the license revocation period is eighteen months.

A second refusal to test within a five-year period or any DWI charge within the previous five years increases the minimum penalties for refusal to test to a $750 fine and a mandatory eighteen-month driver’s license revocation. Commercial drivers who refused a chemical test or were charged with a DWI offense within the past five years can have their commercial driver’s license revoked for life.

DWI charges can be challenged in the state of New York, often successfully. If you simply plead guilty, you will be convicted and you will probably be sentenced to at least the minimum penalties. Additionally, you will have a conviction on your criminal record, your automobile insurance rates will increase substantially, and if driving is essential to your work, you may have difficulty keeping or finding employment.

On the other hand, an experienced Westchester County DWI attorney can often have a DWI charge reduced or completely dismissed. When the evidence against a DWI defendant is overwhelming and a conviction is unavoidable, the right DWI attorney can still work on the defendant’s behalf for alternative sentencing or a reduction of the penalties. Finally – as everyone really knows – all of this legal trouble can be avoided entirely when drivers adhere to one basic piece of advice – Don’t Drink and Drive.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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