All fifty states in the U.S. enforce laws against drunk driving. A driver may not operate a motor vehicle anywhere in this nation when his or her blood alcohol content (BAC) level exceeds 0.08 percent. In many states, the drunk driving charge is called “driving under the influence” or DUI.

In New York and several other states, the charge is called “driving while intoxicated” or DWI. If you are charged with DWI in New York, you will need to obtain legal help at once and contact an experienced Westchester County DWI lawyer.

A number of laws in the state of New York govern impaired driving, and the charges available to prosecutors include “standard” DWI, “aggravated” DWI, and “DWAI” or “driving while ability impaired.”

In most states, if a driver is obviously impaired, that driver can be charged with DUI or DWI even with a BAC level below 0.08 percent. Several states, however, including New York, do it somewhat differently, establishing a separate legal violation for impaired driving below the 0.08 percent level.


In New York, an impaired driver with a blood alcohol content level that measures from 0.05 percent to 0.0799 percent may be charged with DWAI – driving while ability-impaired/alcohol.

And even without a blood or breath test, erratic driving, slurred speech, or just an odor of alcohol can trigger a DWAI/alcohol charge.

In fact, there are actually two DWAI charges in New York: DWAI/alcohol and DWAI/drugs. It’s a good idea for drivers in New York to understand exactly what constitutes DWI, DWAI/alcohol, and DWAI/drugs, and it’s also good to know what the penalties are for these crimes.

A driver in New York can be charged with driving while ability impaired if he or she is operating a motor vehicle while impaired by the consumption of either alcohol or drugs.

Any driver in New York who faces either DWAI charge will also need legal help at once and will need to contact an experienced Westchester County DWI lawyer.

Although the precise penalties for any particular conviction will depend on the details of the charge and the defendant’s previous convictions if any, the standard penalties for a first and second offense DWAI/alcohol conviction include:

  • a fine from $300 to $500 (or $500 to $750 for a second offense)
  • up to fifteen days in jail (or up to thirty days in jail for a second offense)
  • a ninety-day mandatory driver’s license suspension (or a six-month driver’s license revocation for a second offense)


A third DWAI/alcohol conviction within ten years is punishable upon conviction by a fine of $750 to $1,500, up to 180 days in jail, and an eighteen-month mandatory license revocation. However, if a driver is charged with DWAI/drugs, the penalties can be far more severe.

If you are convicted for DWAI/drugs, the penalties for a first offense include a fine of $500 to $1000, three years on probation, and a minimum six-month driver’s license revocation.

For repeat offenders, as you might expect, the penalties grow incrementally harsher with each subsequent conviction for DWAI/drugs.

Drivers in New York should understand that DWAI/drugs includes more than pot and “street” drugs like cocaine and oxycontin.

A number of prescription pharmaceuticals and even some over-the-counter medications can be just as dangerous – in terms of impairing someone’s ability to drive – as alcohol and street drugs.

No one in New York may drive legally while impaired by any drug even if it is medicine that is prescribed, legal, and required for the person’s health.

If a driver is stopped in traffic by a police officer in the state of New York, and if that officer asks the driver to blow into a breathalyzer device, that driver may not legally refuse.

“Implied consent” is the law in New York, which means that simply by driving a vehicle on any street or highway in this state, a driver is legally implying his or her consent to a breathalyzer exam if a police officer requests it.

A refusal to be tested can be penalized with a $500 fine, and your driver’s license will be revoked for at least a year. Commercial drivers who refuse to test face a $550 fine and an eighteen-month driver’s license revocation.


DWI and DWAI charges can be challenged in the state of New York, often successfully, so if you face one of these charges, don’t give up hope and plead guilty.

To be convicted of DWAI/alcohol, a prosecutor must prove beyond a reasonable doubt that a driver was impaired.

This is difficult when a defendant’s BAC level measured under 0.08 percent, so anyone charged with DWAI/alcohol in this state should seek legal advice at once and fight the charge aggressively.

If you simply plead guilty to either DWI or DWAI, you will be convicted and probably sentenced to the minimum penalties.

You will have a criminal conviction on your record, your auto insurance costs will rise, and in some cases, offenders convicted of driving while intoxicated or DWAI may have trouble keeping or finding work, especially any work that requires driving.

On the other hand, an experienced New York DWI attorney can sometimes have a DWAI or driving while intoxicated charge reduced or dropped completely, depending on the particulars of the charge.

And even if the evidence is conclusive and a DWI or DWAI conviction is certain, a good DWI attorney will negotiate on a defendant’s behalf for reduced penalties or alternative sentencing. Don’t even think about facing a DWI or DWAI charge without a good attorney’s help.

The better plan, if you intend to enjoy some drinks with friends, is to arrange a safe ride home in advance.

Have someone you trust act as a designated driver, or arrange for a ride service, a limo, a taxi, a room, or a friend’s sofa.

Yes, anywhere in the Westchester County and New York City area, a ride-for-hire will cost a few bucks, but if you’ve been drinking, a taxi or a rideshare still costs far less than a ride to the jail, the emergency room, or the morgue.

All of the legal trouble attached to DWAI and DWI can be completely avoided when you adhere to one fundamental 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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