NY DWI & DWAI Laws Guide

What is the difference between DWI and DWAI in New York?

These terms are all acronyms that refer to the crime commonly known as “drunk driving.”  Different states have different names for crime.  For example, in Oregon, the term driving under the influence of an intoxicant or DUII is used; Massachusetts and Maine call the charge operating under the influence or OUI; Florida, Connecticut, and numerous other states use the term driving under the influence or DUI.

Like many states, New York State law uses the terms driving while intoxicated (DWI) and aggravated driving while intoxicated (Aggravated DWI).  New York also has a separate charge known as driving while ability impaired or DWAI.  [Colorado is the only other state that uses the term DWAI.]  More on those terms are below.

New York DWI / DWAI charge

I just got arrested for New York DWI / DWAI charge. What happens now?

ISSUE ONE:  New York Implied Consent Proceeding

Your New York driver’s license (or your right to drive in New York if you’re not a New York licensed driver) was most likely revoked for a year or more if you refused a chemical (breath) test.  You also face a $500 civil penalty.  Read your paperwork carefully.  It may be in your interest to challenge this revocation at a DMV hearing.  Speak to your New York DWI hearing for more information.

ISSUE TWO:  New York Aggravated DWI / DWI / DWAI Case

Separate from the implied consent license revocation proceeding is the charge for DWAI, DWI, or Aggravated DWI.  You were probably charged with one of the following offenses:

• Driving while ability impaired (DWAI).  Under New York law, it is unlawful to operate a motor vehicle while your ability to operate a motor vehicle is impaired by the consumption of alcohol.  This offense is most commonly seen when a driver’s BAC is between 0.05 and 0.07 percent.
• Driving while intoxicated; per se (Per Se DWI).  Under New York law, it is unlawful to operate a motor vehicle while you have 0.08 percent or more by weight of alcohol in your blood as shown by chemical analysis of your blood, breath, urine or saliva.
• Aggravated driving while intoxicated; per se (Aggravated DWI).  Under New York law, it is unlawful to operate a motor vehicle while you have 0.18 percent or more by weight of alcohol in your blood as shown by chemical analysis of your blood, breath, urine, or saliva.
• Aggravated driving while intoxicated; child in the car (Aggravated DWI).  Under New York law it is unlawful to drive while intoxicated with a child under 15 years of age in your vehicle.
• Driving while intoxicated (DWI).   Under New York law, it is unlawful to operate a motor vehicle while in an intoxicated condition.
• Driving while ability impaired by drugs.   Under New York law, it is unlawful to operate a motor vehicle while your ability to operate a motor vehicle is impaired by the use of a drug.
• Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs.   Under New York law, it is unlawful to operate a motor vehicle while your ability to operate a motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.

Important:  The implied consent proceeding and the criminal DWI / DWAI case are completely separate from one another.

Will my NY driver’s license be revoked or suspended?

RELATED TO ISSUE ONE ABOVE:  Your New York driver’s license (or your right to drive in New York state if you do not have a valid New York license) may be revoked under implied consent law for refusing a chemical test.  New York’s implied consent law does not suspend or revoke a driver’s license if they fail a breath or blood test (though many other states do so).

RELATED TO ISSUE TWO ABOVE:  If you are convicted of the DWI or Aggravated DWI charge, you will also lose your license (or your right to drive in New York if you don’t have a valid New York license) for six months or more.

DWAI conviction

A DWAI conviction will also result in a suspension or revocation of your license.

Keep in mind that these conviction-based revocations are separate and distinct from the implied consent revocation.  Talk to your NY DWI lawyer for possible suspension and revocation lengths for your situation.

Also keep in mind that your license can be suspended or revoked for a variety of reasons unrelated to a DWI / DWAI arrest e.g. excessive tickets, a hit-and-run conviction, etc.

What happens if I get caught driving while my license is suspended/revoked?

Aggravated unlicensed operation (AUO) of a motor vehicle should be avoided as it is a new crime.  Most commonly, you’ll face the charge of the aggravated unlicensed operation in the second degree.  This charge is common after an alcohol-related suspension/revocation.  Penalties include fines and possible jail time.

• If you’re on probation for a DWI / DWAI when you are arrested for unlicensed operation, you also face a probation violation hearing.
• If you’re driving while intoxicated and driving after a revocation, you may face a charge of AUO in the first degree.  This is a felony charge.

I really need to drive.  Will I be able to get a NY restricted / occupational/conditional permit / conditional / hardship license?

If you’re serving a revocation, for a first DWI / DWAI conviction and you participate in the Drinking Driver Program (DDP), you may be able to obtain a conditional license.  If you receive a New York conditional license, it is valid to drive only:

• to and from work;
• on the job (if driving is part of your job);
• to and from a class at an accredited school, college, or university;
• to transport your child to and from child care or school if necessary to maintain your employment;
• to and from Drinking Driver Program classes and required evaluation or treatment;
• to and from a state or county motor vehicle office for business related to your conditional license;
• to and from court-required probation activities;
• to and from medical treatment for you or a family member;
• during an additional three-hour period each week.

The State of New York does not issue conditional licenses to drive commercial motor vehicles.

What is the New York State Drinking Driver Program (DDP)?

The Impaired Driver Program (IDP) is a government program designed to reduce recidivism among persons convicted of DWI. During the introductory phase of the program, participants discuss the social, medical, legal, and driver safety problems caused by alcohol and other drug abuse. The program includes classroom education, screening, and sometimes evaluation and treatment.

An IDP participant must attend seven weekly classroom sessions. Each session lasts two to three hours.   If you satisfactorily complete the classroom sessions, your involvement in the IDP ends unless the program refers you for a formal evaluation and subsequent treatment.   This referral may result from:

• the results of a written self-assessment;
• two or more alcohol or drug-related driving convictions within the past 10 years;
• an arrest for an alcohol or drug-related driving offense while enrolled in the DDP;
• attending class under the influence of alcohol or drugs;
• a request by the student for help with a substance abuse problem, or an admission that the student is currently in treatment;

If you are referred for evaluation, you may choose a treatment provider from a list supplied by the DDP. [Note:   If you are not satisfied with the results of the evaluation, you may contact the DDP director and request a second evaluation. However, you must accept the findings of the second evaluation.]

After the evaluation, you may be required to complete a substance abuse treatment program. If you fail to complete the required evaluation and treatment, you will be dropped from the IDP and your conditional license will be revoked.

You will receive a “Notice of Completion” when you have completed all the requirements of the IDP. A copy of your completion notice will be sent to the NYS DMV. Depending on your license status and driving record, your license will be restored or you will be eligible to apply for a new driver’s license.

Is a DWI offense in New York a misdemeanor or felony?

In New York state, a DWI is usually a misdemeanor crime.  However, if you have a prior DWI offense in the past 5 – 10 years, the offense may be a felony crime.  Also, getting a DWI with a child under 15 years of age in the car results in a felony offense under Leandra’s law.  Refer to the table below for more information.

DWAI offenses are generally infractions or misdemeanor offenses so long as the offense involves alcohol (and not drugs).

What penalties if I am convicted of a New York DWAI / DWI?

Upon conviction of a New York DWI / DWAI offense, a defendant can receive a variety of penalties including substance abuse screening/treatment/education.  A range of penalties is set forth below:

New York State DWIAnd DWAI Penalty Chart

NEW YORK DWI / DWAI OFFENSE	TYPICAL PENALTIES
FIRST DWAI OFFENSE (alcohol) Type of Offense:  Traffic Infraction	Fine of $300 – $500; Jail of 0 to 15 days; 90 days license suspension.
SECOND DWAI OFFENSE (alcohol) Second Offense w/in Five Years Type of Offense:  Traffic Infraction	Fine of $500 – $750; Jail of up to 30 days; Six-month license revocation.
THIRD DWAI OFFENSE (alcohol) Third Offense w/in 10 Years Type of Offense:  Misdemeanor	Fine of $750 – $1500; Jail of up to six months; One-year license revocation (if the prior offense was w/in the past five years; otherwise 90 day suspension).
FIRST DWAI OFFENSE (combination of alcohol and drugs) Type of Offense:  Misdemeanor	Fine of $500 – $1000; Jail of up to one year; Six-month license revocation.
SECOND DWAI OFFENSE (combination of alcohol and drugs) Second Offense w/in Five Years Type of Offense:  E Felony	Fine of $1000 – $5000; Up to four years in prison; One-year license revocation.
THIRD + DWAI OFFENSE (combination of alcohol and drugs) Third Offense w/in 10 years Type of Offense:  D Felony	Fine of $1000 – $5000; Up to seven years in prison; Eighteen months license revocation.
FIRST DWI OFFENSE or FIRST DWAI-Drugs OFFENSE Type of Offense:  Misdemeanor	Fine of $500 – $1000; Jail of up to one year; Six-month license revocation.
SECOND DWI OFFENSE or SECOND DWAI-Drugs OFFENSE Second Offense w/in the Past 10 Years Type of Offense:  E Felony	Fine of $1000 – $5000; Up to four years prison (minimum of five days jail or 30 days community service if second offense w/in past five years); One-year license revocation.
THIRD DWI OFFENSE or THIRD DWAI-Drugs OFFENSE Third Offense w/in the Past 10 years Type of Offense:  D Felony	Fine of $2000 – $10,000; Up to seven years prison (minimum of 10 days jail or 60 days community service if 3rd offense w/in past five years); One-year license revocation.
FIRST AGGRAVATED DWI OFFENSE Type of Offense:  Misdemeanor	Fine of $1000 – $2500; Jail of up to one year; One-year license revocation.
SECOND AGGRAVATED DWI OFFENSE Second Offense w/in the Past Five Years Type of Offense:  E Felony	Fine of $1000 – $5000; Up to four years prison (minimum of five days jail or 30 days community service); Eighteen-month license revocation.
THIRD AGGRAVATED DWI OFFENSE Third or Greater Offense w/in the Past 10 Years Type of Offense:  D Felony	Fine of $2000 – $10,000; Up to seven years prison (minimum of 10 days jail or 60 days community service); Eighteen-month license revocation.

Three or more alcohol or drug-related offenses within 10 years can result in a permanent revocation of your NY driver’s license.

Committing a DWI with a child aged 15 or less in the vehicle will result in a felony charge.  This is known as Leandra’s law.

Will my defense lawyer be able to plea or negotiate my New York DWI / DWAI charge down to a (lesser) offense?

Probably not.  New York law generally prohibits prosecutors from allowing a plea on a DWI charge to a non-alcohol offense.  Talk to your New York lawyer about the details of your specific offense.

Will a New York DWI conviction go on “my driving record?”

Yes.  A DWI conviction will go on your New York driving record and will stay on your record forever.  You cannot expunge a DWI conviction in New York state.

Just how much jail/prison time will I have to do if I am convicted of a DWAI or DWI offense in New York state?

The amount of incarceration (jail or prison) you face will depend on a number of factors, including (but not limited to) the following factors:

• your prior driving record especially your DWAI, DWI, or Aggravated DWI history (including any DUI / DWI outside of the State of New York);
• your level of intoxication / BAC (BAC of 0.18 or greater can generate greater penalties);
• whether there was an accident/collision involved;
• whether there was a bodily injury to another person in the collision;
• which New York county or court your case is in;
• what judge you are sentenced by;
• whether there was a passenger/child in your car (getting a DWI with a child under 16 years of age in your vehicle will result in a felony offense regardless of your prior DWI history);
• whether the judge feels you have accepted responsibility for your actions.

I am licensed to drive in a state other than New York and I was arrested for a DWI in New York state.  Will my driver’s license be suspended/revoked?

New York only has the authority to suspend your right to drive in the State of New York.  However, New York state and 44 other states, and the District of Columbia have adopted an agreement known as the “Driver License Compact.”  New York will report a DWI conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your home state will then generally take action to suspend or revoke your license.

This also works in reverse.  If you are a New York licensed driver and you are convicted of a DWI / DUI charge in another state, New York will revoke your license if it learns of the conviction.

Will I have to install an Interlock Device on my car?

An ignition interlock device (IID) is a breath alcohol measurement device that is connected to a motor vehicle ignition.  In order to start the motor vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration.  If the alcohol concentration exceeds the startup set point on the interlock device, the motor vehicle will not start.

You will have to install an IID in your vehicle for at least six months if you’re convicted of any DWI charge.  Speak to your DWI lawyer for more information.  Driving a vehicle in violation of an ignition interlock order (w/o the device) is a misdemeanor crime.

What will a New York DWAI / DWI do to my insurability?

If your insurance company finds out about your DWAI / DWI one of two things is likely to happen.  Either your New York state insurer will raise your rates or you may be canceled or non-renewed.  New York does NOT require SR-22 filings with a DWAI / DWI conviction.

What happens if I was on probation when I got arrested for my New York DWI offense?

Committing a new offense while you’re on probation for a previous crime creates two problems.  First, you face the new NY DWI charge.  Second, you face a probation violation hearing for failing to obey all laws (a standard condition of probation).  The most serious scenario is when you receive a New York DWI offense when you’re already on probation for a previous DWI.  When this happens, it’s in your best interest to speak to a New York lawyer as soon as possible.

I’m not a United States citizen.  Will a New York DWI / DWAI conviction result in my removal from this country?

Probably not.  Typical, run-of-the-mill NY DWI / DWAI (no priors) are not considered crimes of moral turpitude or aggravated felonies resulting in removal.  Remember:  It is important to consult an experienced immigration lawyer about your situation just as you should consult with an experienced New York criminal defense lawyer about your pending DWI charge.

Keep two points in mind.  First, it is very important to answer honestly all questions about prior arrests/convictions on immigration and Visa applications and forms.  Lying on these forms is often considered more serious than any DUI conviction.  Second, non-citizens must take extra care not to drive on a suspended or revoked license.

What will a NY DWI conviction do to my ability to travel to Canada?

Having a DWI conviction generally makes you criminally inadmissible to Canada for at least 10 years.  On rare occasions, a person may be deemed rehabilitated when less than 10 years have elapsed since the conviction/end of probation.  Consult Canada’s Citizen and Immigration website for more information.

Are there any concerns for licensed pilots who get a New York DWI?

Yes.  The FAA has reporting requirements for certain Motor Vehicle Actions including New York DWI convictions and certain implied consent suspensions.  Learn more here.

I missed my New York court appearance.  What do I do now?

Failing to appear in court is to be avoided.  When you miss a court appearance, bad things happen.  At a minimum, the New York state court typically issues a warrant for your arrest (known as a bench warrant).  You can also be charged with a new criminal offense called bail jumping.  [To avoid a bail jumping charge, it is important to turn yourself in on any outstanding warrant within 30 days of missing your court appearance.]  Talk to a New York criminal defense attorney as soon as possible.

Can I represent myself in court on my New York DWI, DWAI, Aggravated DWI, and/or other criminal offense(s)?

Yes.  You have a constitutional right to represent yourself on any criminal offense no matter how serious including New York DWI charges.  Keep in mind that New York DWI / DWAI defense is a complex area of the law as shown by the information here.  If you cannot afford to hire your own lawyer, you most definitely should apply for court-appointed counsel to represent you.