New York DWI/DWAI Help

You’ll want to change the state’s nick-name from the ‘Big Apple’ to the ‘Big Grapple’ if you get caught for driving while intoxicated (DWI) in New York.

New York’s DWAI (driving while ability impaired) ‘per se’ law states that a blood alcohol content of .05% to.07% can be considered relevant evidence of driving while impaired along with circumstantial evidence, such as slurred speech, blood shot, watery eyes, unbalanced coordination, hazardous driving, and field sobriety tests.

A New York DWI (driving while intoxicated) is a heavier offense and a BAC test of .08% by itself (the ‘per se’ law) constitutes impairment to a degree that you are assumed to be unsafe behind the wheel.

If you haven’t been drinking or you believe that you might have been “impaired” from a benign source such as alcohol based paint, solvents, mouthwash, prescription or over-the-counter drugs be aware that you can still be arrested for a New York DWI, even though you are not “legally drunk”.

You should note that you have the right to a second BAC test at your own expense at a place of your choice. When blood is drawn with or without a request from law enforcement, it is extremely important to have your New York DWI attorney contact the hospital immediately with notice of the federal confidentiality law and to assert your patient’s rights regarding the privacy of medical records.

After being charged with a New York DWI you’re going to face two adversaries: the criminal courts, and the New York Department of Motor Vehicles. If your license was suspended or revoked because of a DWI, you will be offered a formal hearing. DMV hearings may be a crucial opportunity to let your New York DWI defense attorney cross-examine, rebut testimony, and confront evidence offered by those involved in your arrest and investigation.

You have the right to make a request within 15 days for an administrative hearing with the DMV to try avoiding losing driving privileges. You will lose your license if a hearing is not requested, for not appearing, or for an unsuccessful outcome.  DMV sanctions can also be imposed even if you are found not guilty in a criminal court case.

Be advised that New York has an out-of-state Driver’s License Compact Agreement. This means that New York DWI convictions will be reported to your home state which will generally take action to suspend your license. Offenses for out-of-state drivers can also create other complications. Consequently, it’s imperative that you contact a local New York DWI attorney to walk you through the procedures and insure that you don’t face complications with bail, jail, and your driving privileges.

Across the country DWI laws and evidentiary procedures are being challenged, while at the same time state laws are becoming more severe. To be certain that you have the correct and current knowledge contact a New York DWI specialist. In any case, if you are stopped and arrested for suspicion of a New York DWI, request to see a DWI attorney, the sooner the better.

– Info You Should Know –

Was I Stopped Legally?

Basically you were stopped because of an equipment failure or an officer had probable cause to think you were driving in an impaired manner. Arrests for drunk driving in every state focuses on four areas: driving patterns (too slow, too fast or erratic), physical appearance, field sobriety tests, and chemical tests.
 
Not all reasons offered by officers are legal. Check with a New York DWI attorney who will examine all the different aspects of your case, will defend you aggressively and try to mitigate any penalties.


Should I Have Talked To the Cop?

Remember that you don’t have to answer any questions that will incriminate you. Most people say that they have had a "couple of drinks” which is not necessarily incriminating. However such "statements of consumption" will be used against them in court or at a hearing.


Did I Have A Right To Make A Call?

It is the right of all drivers to consult with a DWI lawyer before deciding whether to take or refuse the BAC test. It is critical to consult with a New York DWI attorney when making the decision to take or refuse a BAC test as this can have serious consequences. If you refuse the test under the implied consent law you can lose your license on the spot, and probably for many months.

Also be advised that law enforcement does not have to wait for the arrival of your DWI attorney before proceeding with the test.


What if I Refused To Take a BAC (blood alcohol content) Test?

Refusal carries certain penalties. The arresting officer will take your license and it will be automatically suspended. You may request a hearing within 15 days of the arrest to contest the validity of the confiscation or suspension.

This hearing is not a trial and producing evidence of innocence and the burden of proof bears upon the accused.
 

Did I Have To Take a Field Sobriety Test (FST)?

Unlike blood and breath testing, submitting to a "field sobriety test" is voluntary, but do not expect an officer to inform you of this. According to the National Highway Traffic Safety Administration (NHTSA), the only tests that have been shown to have some relevance to establishing legal intoxication are the One Leg Stand, the Heel-to Toe and the Horizontal Gaze Nystagmus (HGN). The results of these tests will be entered as evidence against you. But even under laboratory conditions, these tests have only been established to be accurate in predicting blood alcohol content above .10% in 66% to 77% of the time.


I’m Simply Going To Plead Guilty, Why Do I Need A New York DWI Lawyer?

The penalties and the numerous, complicated laws relating to motor vehicles, DWI charges and New York drunk driving laws should be taken very seriously. New York DWI convictions and penalties can be long lasting and severe, both in court and with the New York Department of Motor Vehicles which regulates your driving privileges.

Experienced and skilled legal counsel may be able to help maximize your defenses thereby mitigating your penalties. A New York DWI defense attorney will level the playing field between you and the prosecution in an effort to provide and preserve your constitutional rights.

When considering consulting a New York DWI attorney, take into account the impact of a criminal conviction: possible loss of voting privileges, increased cost or cancellation of auto insurance, lost educational opportunities, inability to rent or own cars, restrictions on travel, damage to security clearances, job barriers, possible harm to professional credentials or certifications, and the loss of freedom. Don’t you think these rights, possessions, achievements and abilities are worth protecting?


What’s A New York DWI Defense Attorney Going To Cost?

One of the biggest concerns for people charged with driving while intoxicated is attorney fees. As cases vary, so does cost. Most people don’t realize that money spent now on skillful help from a New York DWI attorney might save them untold cost in money, personal and professional loss in the years to come.


What Are Court Costs?

Additional costs for court or administrative services, regulated by state penal or vehicle codes violated. In addition to the imposed fine following conviction, most offenders must pay a mandatory surcharge and a fee for assistance to crime victims. Not including the fine, the additional required surcharge and fee, combined, may reach hundreds of dollars or more.
In addition to paying any fines, fees, penalties and surcharges authorized by law, you may have to pay a "Driver Responsibility Assessment" for certain violations that result in a conviction or administrative finding. Your learner permit, driver's license, or driving privileges will be suspended if you do not make these payments.

Can I Plea Bargain?

The law prohibits a plea to a non-alcohol or drug-related violation. A plea bargain means that you agree to plead guilty to some lesser charge or having your attorney and prosecutor mitigate the penalties. This is impossible without an experienced New York DWI lawyer. The plea bargain is extremely advantageous to anyone accused of a New York DWI, but remember even a conviction to a lesser charge will still count as a ‘prior’ for calculating penalties for future offenses.


I’ve Heard of A Nolo Contendere Plea, What Is It?

In legal terms, nolo contendere (Latin for “I do not wish to contest”) is an alternative to a guilty or not guilty plea. While not technically a guilty plea, a nolo plea has many of the same effects, but with some mitigating circumstances. In most states you can only plea nolo once in DWI cases. Generally a judge decides whether a nolo plea will be accepted, and it is not always available.

In any case, without services of a veteran New York DWI specialist, specialized pleas or plea bargaining is not possible.


Is Being Punished by the New York DMV and the Criminal Courts Double Jeopardy?

Like most states, New York law permits the enforcement of administrative penalties in addition to court punishments, as the state considers driving a privilege, not a right, and not subject to civil liberties. The New York DMV administers driver’s licenses, imposes civil penalties, serves as the judge, jury and also deals out punishment.


What if I Am An Out-Of-State Driver?

Be advised that New York and most states have an out-of-state Driver’s License Compact Agreement, meaning that New York DWI convictions will be reported to your home state which will generally take action to suspend your license. Offenses for out-of-state drivers can also create other complications. Consequently, it is imperative that you contact a local New York DWI attorney to walk you through the procedures and insure that you don’t face complications with bail, jail, and your driving privileges.


What Happens In Court?

You’ll have to make several appearances. In a criminal case you have the right to a jury trial with presumption of innocence, but once convicted, it can be up to the judge what punishment you will receive. The sentencing range, and whether the offense will be a misdemeanor or a felony, is based on a number of things including the number of priors. These convictions include any previous New York administrative or criminal court drunk driving suspensions, for refusal to submit to a BAC test, or any ‘operating while intoxicated’ convictions in other states. There are also penalty enhancements due to aggravated circumstances.

In addition, a judge may require you to participate in alcohol or drug treatment programs as part of a parole (probation) program and have an ignition interlock device installed on your vehicle, or even have your vehicle seized and forfeited.


What About Enhanced Punishments For Multiple New York DWI Convictions?

Aggravated circumstances are defined as follows: BAC of .15% or higher (.18% for DMV sanctions), when a traffic accident or substantial property damage has occurred, refusal to take the chemical test, prior DWI convictions, the presence of a minor in the car, speeding and/or reckless driving, and causing an accident with injuries or property damage, any attempt to evade police or flee the scene of a DWI accident.

Any time you face multiple or ‘aggravated’ charges, or if death, injuries or sizeable property damage occurs, the fallout for New York multiple convictions will get very heavy, including thousands of dollars in fines, mandatory years of imprisonment, massive restitution and a loss of license and vehicles for years, if not permanently. We strongly recommend retaining an experienced New York DWI attorney in order to secure the best possible outcome of a potentially severe situation.


What is a ‘Look Back’ Period for Prior Offenses?

The ‘look back period’ is a 10-year period in New York, calculated from the date of conviction of a prior DWI case. New York DWI punishment will depend upon whether the drunk driving arrest is for a prior misdemeanor or a felony. A misdemeanor New York DWI case can be punished by up to 1 year in jail. A felony drunk driving arrest may be punished for more than 1 year in state prison.


What About My Insurance?

Your insurance rates will probably increase or your insurance will be cancelled. Rates for your family members, or for your employer (if you use a company car), may increase as well.


Can I Get a Conditional License?

You can receive a conditional license after a first conviction if you participate in the Drinking Driver Program (DDP). The DMV will determine if you are eligible, but be advised that a judge can cancel your eligibility.

– Extra Info You Should Know –

3 or more alcohol, drug related convictions or refusals can result in permanent driver’s license revocation. A waiver is permitted after 5 years.

Aggravated DWI with any priors within 10 years is a minimum of 18 months license revocation

All DWI/DWAI offenders are required to participate in the DDP (Drinking Driving Program).

In addition to any fines you must pay a drivers responsibility assessment. The amount, paid once a year for three years, depends on your violation. For BAC refusals, alcohol and drug related offenses including refusals the assessment is $250 per year. Plus you are also responsible for an additional surcharge of $160 for all misdemeanors and $750 for all felonies.

Three or more alcohol or drug related convictions or refusals can result in permanent license revocation. A waiver is permitted after 5 years.

The Conditions of Probations are:

Community Service
Taking a DWI awareness class.
Monthly reports to your probation officer.
No alcohol or other drugs.
Maintain a job.
Lead a law abiding life.

– New York DWI/DWAI Criminal Penalties –

1st DWAI Offense
A traffic infraction which results in a criminal record.
A fine of no less than $300 and no more than $500.
$160 surcharge for misdemeanors, $270 for felonies.
15 days possible jail time.
Loss of license for 90 days.

2nd DWAI Offense (Within 5 years)
A fine of no less than $500 and no more than $750.
30 days possible jail time.
6 months loss of license.

3rd DWAI Offense (Within 10 years)
$750 to $1,500 fine.
180 days possible jail time.
90 days loss of license if prior over five years ago, but less than 10 years.
1 year loss of license if prior within five years.

1st DWI (no prior DWI convictions within 10 years)
$500 to $1,000 fine.
Up to 1 year possible jail time.
6 months loss of license.

2nd DWI Offense (Within 5 Years)
$1,000 to $5,000 fine.
Maximum of 4 years in prison, 5 days mandatory jail time, or 30 days community service,
1 year loss of license.

3rd or Subsequent Offense DWI (Within 5 Years)
$2,000 to $10,000 fine.
Maximum 7 years in prison, 10 days mandatory jail time or 60 days community service.
1 year loss of license.
Ignition interlock device installed on vehicle.
Substance4 abuse evaluation required.

Second Offense DWI or DWAI Drugs (Within 10 Years)
$1,000 to $5,000 fine
4 years maximum prison time.
1 year loss of license.

3rd or Subsequent DWI Offense (Within 10 Years)
$2,000 to $10,000 fine.
7 years maximum prison time.
1 year loss of license.

1st Aggravated DWI Offense
$1,000 to $2,500 fine.
1 year possible jail time.
1 year loss of license.

2nd Aggravated DWI Offense (Within 5 years)
$1,000 to $5,000 fine.
5 days mandatory jail time or 30 days community service, up to 4 years possible prison time.
18 months loss of license.

3rd or Subsequent Aggravated DWI (Within 10 years)
$1,000 to $5,000 fine.
10 days mandatory to 7 years in jail or 60 days community service.
18 months loss of license.

Refusal of a BAC Test
1st refusal, 1 year loss of license.
$500 fine.
2nd refusal within 5 years,18 months loss of license.
$750 fine.

Commercial Driver’s License
1st DWI offense, 1 year loss of license.
Refuse BAC test, loss of license for 18 months.
$550 fine.
3 year loss of license if transporting hazardous materials.
2nd DWI lifetime disqualification.
2nd BAC test refusal lifetime disqualification.

Underage DWI
6 months to 1 year loss of license.
Refusal of BAC test loss of license for 1 year.
$125 fine.
$100 suspension termination fee.

2nd Offense
Minimum $125 fine.
1 year loss of license or until 21 years old, whichever is longer.
$100 license re-application fee.

– New York DMV Penalties –

Aggravated Driving While Intoxicated (ADWI)
$1,000 to $2,500 fine.
1 year in jail.
1 year loss of license.

2nd ADWI in 10 years
E class felony.
$1,000 to $5,000 fine.
4 years in jail.
18 months loss of license.

3rd ADWI in 10 years
D class felony.
$2,000 to $10,000 fine.
7 years in jail.
18 months loss of license.

Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI)
$500 to $1,000 fine.
1 year jail.
6 months loss of license.

Driving While Ability Impaired by Alcohol (DWAI)
$300 to $500 fine.
15 days jail.
90 days loss of license.

2nd DWAI violation in 5 years
$500 to $750 fine.
30 days in jail.
6 months loss of license.

2nd DWI/DWAI-Drug Violation in 10 years
A felony.
$1,000 - $5,000 fine.
4 years jail.
1 year loss of license.

3rd DWI/DWAI-Drug violation in 10 years
D class felony.
$2,000 to $10,000 fine.
7 years jail.
1 year loss of license.

Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination)
$500 to $1,000 fine
1 year jail.
6 months loss of license.

2nd DWAI/Combination in 10 years
E class felony.
$1,000 to $5,000 fine.
4 years jail.
1 year to 18 months loss of license.

3rd DWAI/Combination in 10 years
D class felony.
$2,000 to $10,000 fine.
7 years jail.
1 year to 18 months loss of license.

Refusal of BAC Test
1st refusal: 1 year loss of license.
$125 to $550 civil penalty payable to DMV.
2nd refusal: 18 months loss of license for refusal within 5 years of a prior conviction.
$750 civil penalty payable to DMV.

Commercial Drivers License
1st offense: 18 months loss of license
$550 fine.
2nd offense: permanent loss of license for refusal within 5 years of a prior.
$750 fine.

Underage DWI
$125 civil penalty.
$100 fee to terminate suspension.
6 months loss of license.

2nd Underage Offense
$125 civil penalty.
$100 re-application fee.
1 year loss of license, or until age 21 (whichever is longer).

Underage Refusal of BAC Test
1st refusal: $500 fine and 1 year loss of license.
2nd refusal: $750 civil penalty and $50 re-application fee.
1 year loss of license, or until age 21 (whichever is longer).

Out-of-State Driving Under the Influence
6 months loss of driving privileges.
Underage, loss of license for 1 year, or until 21 (whichever is longest.)



Only experienced New York DWI attorneys should provide you with bonified legal advice concerning New York DWI laws. Consequently, the aforementioned information on this web site should not be construed as legal advice, rather suggestions and a range of helpful information and should not be substituted for speaking with accredited New York DWI attorneys. There is no warrantee, expressed or implied herein. These issues are complicated, laws change and litigation takes experience. Please let us refer you to a seasoned professional New York DWI attorney specializing in DWI cases.


New York State Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs
§ 1192.
New York State Driving After Having Consumed Alcohol; Under Twenty-One Procedure
§ 1194-a.
New York State Ignition Interlock Device Program
§ 1198.
Driving While Impaired by Alcohol, VTL Section 1192.1

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