Driving While Intoxicated, Aggravated Driving While Intoxicated and Driving While Ability Impaired, collectively referred to as DWI offenses in New York, are criminal or traffic infraction charges stemming from an individual being accused of operating a motor vehicle upon a public highway while under the influence of alcohol and/or drugs. The severity of these charges can range from felonies punishable by years in state prison, to misdemeanors punishable by up to one year in local jail, to non-criminal traffic infractions. The severity and particular statute used to charge an individual in a particular case will generally depend on the aggravating and/or mitigating facts and circumstances in a particular case.

If an individual is charged with their first DWI, and they chose to participate in breath test at the time of arrest, and their Blood Alcohol Content (BAC) was measured at .08 or above, but less than .18, he or she will typically be charged with was is often referred to as “per se DWI” under Vehicle and Traffic Law (VTL) Section 1192(2). This is an unclassified misdemeanor punishable by up to one year in the local jail and/or probation, fines, surcharges, Intoxicated Driver Program (IDP, formerly DDP), the installation of an ignition interlock device, and Victim Impact panels (VIP). This particular offense is referred to as “per se” because it is essentially a presumption that if a person operates a motor vehicle with this BAC, they are in fact intoxicated. In other words, the prosecution does not need to prove intoxication by relying on how the person was driving or acting, such as swerving, slurred speech, running a red light, field sobriety tests, and so on.

On the other hand, if an individual refuses to submit to a breath test or other BAC test at the time of arrest, he or she can be charged with what is often referred to as “common law DWI” under VTL 1192(3). This is the same level of offense as VTL 1192(2) with largely the same potential penalties and jail time, but this charge relies on evidence of how the driver was operating the motor vehicle and/or behaving to prove that he or she was intoxicated. This typically makes a case more difficult for a prosecutor to prove, to varying degrees. However, unlike in some other states, in New York the fact that the driver refused to take the BAC test can be used against that person at a trial. Not only that, but the DMV can and will typically suspend a driver’s license simply for the refusal itself, regardless of the strength or results of the criminal case.

Aggravated DWI under VTL 1192(2-a)(a) is charged when a person submits to a breath test or other BAC test and has a BAC of .18 or more. While this charge is still a misdemeanor, assuming it’s the driver’s first such charge, the fines are elevated from a non-aggravated DWI charge all the way up to $2500 on a first conviction. Conversly, Driving While Ability Impaired (DWAI) under VTL 1192(1) is not a criminal charge at all, and is typically charged with a person submits to a breath test and blows below .08. This charge does not require proof of “intoxication” but only the lower threshold of “impaired” by alcohol “to any extent.” A conviction of this traffic infractions comes with lower fines, up to $500 for a first conviction, a maximum of 15 days in jail that is very infrequently imposed, and a shorter license suspension period.

A person can also be charged with related, but different, offenses for driving while his or her ability is impaired by drugs or a combination of drugs and alcohol under VTL 1192(4) and 1192(4-a) respectively. These are comparable to charges under VTL 1192(2) and 1192(3) with respect to potential penalties, except that notably the ignition interlock device is not relevant and therefore not mandated.

DWIs can also be charged as felonies under certain circumstances. Perhaps the most typical situation is where a person has previously been convicted of a misdemeanor DWI under one of the statutes mentioned here. A second such offense will be an E felony punishable by time in state prison, or a longer term of probation and higher fines. The third such conviction in 10 years will be a D felony punishable be an even longer state prison sentence, probation and/or even greater fines.  Other aggravating factors can elevate a DWI to a felony, such has having a child 15 years old or younger in the vehicle (Leandra’s Law), or being a commercial driver, large and heavy tractor trailers, and taxis/livery cabs.

A driver’s license will typically be suspended while the criminal case is ongoing. However, an individual can still apply for a conditional license with the DMV while the case is pending. However, if the case results in a conviction, that new conditional license will be suspended or revoked as part of the sentence. Along the same lines, while a case is pending, a driver can make a motion with the Court for a hardship privilege. This is a special exception or allowance made by the presiding judge to allow an individual to drive under certain strict limitations and conditions, most typically to and from work if reasonable public transportation is not readily available. A conditional license from the DMV comes with similar restrictions and typically only allows the driver to operate a motor vehicle to and from work, during work hours, to and from  the DMV, to and from the IDP program, to and from school, to and from probation and/or the Court, specific ranges or hours of the day, to and from doctor’s offices, and to and from a child’s school or daycare.

Contact The Law Office of Samuel S. Coe today to consult with an experienced DWI attorney and former Manhattan prosecutor.