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. For example, many District Attorney’s Offices will not offer a reduction to DWAI if the person had a BAC over a certain level (e.g., .13%), if the person refused to take a Breathalyzer test or a blood test, if there was an accident, if there was a child in the car, if the person was obnoxious to the police, if the person resisted arrest, etc.

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 (unless you are under 21 or possess a Commercial Driver’s License (“CDL”));
  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). 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. 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. It is critical to note that the standard of proof for DWAI Drugs is the same as that for DWAI Alcohol (that is, a person is guilty of DWAI Drugs if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of certain drugs). In other words, 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. Due to a glitch in the law, 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 operatee; 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.

Realistically, however, if you find yourself in this situation you will likely be going to jail or prison for substantially longer than this required minimum period.