New York State DWI Frequently Asked Questions

What is a DWI, DUI and DWAI?

Each state titles its drinking and driving law differently.  Often times people use these terms interchangeably, but technically each of these acronyms does not apply to every state.  In New York, DWI and DWAI are used.  DWI is Driving While Intoxicated.  DWAI is Driving While Ability to Drive is Impaired (either by alcohol or drugs).

What are the penalties for DWI in New York State?

In New York there are different degrees of DWI and DWAI and any penalties or sentence is dependent on a variety of factors such as: (1) what was the Blood Alcohol Level reading (breathalyzer); (2) whether there was an accident; (3) if defendant refused the  BAC test; (4) if the defendant has a criminal record for similar crimes; (5) if the defendant has a commercial license; (6) how old the defendant is; and (7) whether there were any children in the car at the time of arrest.

 If a defendant is convicted of a DWI/DWAI in New York different penalties/sentences will be imposed depending on the existence of these questions which could include: (1) license suspension or revocation; (2) monetary fines; (3) ignition interlock devices; (4) drinking and driving classes; (5) community service; (6) alcohol/drug treatment programs; (7) probation; or (8)  incarceration.

Should I refuse to take a breathalyzer test? 

This is an important question that is often asked.  The answer is: IT DEPENDS.  The general rule of thumb is that if a driver is pulled over and asked to submit to a breath test, they should agree to take the test.  In New York, the sanctions and penalties surrounding the refusal of a breathalyzer test can get very strict.  For instance, if a driver refuses to take the breathalyzer test, New York VTL law will authorize the immediate suspension of that driver's license – whether that driver is under the influence or not. 

Also, on top of that any criminal court proceedings that the driver will have to attend, NY DMV will require that driver to appear at a separate DMV hearing that will focus specifically on whether the arresting officers engaged in the proper procedure when the driver “refused.”  If DMV concludes that the arresting officer acted properly and that the driver did refuse, additional sanctions will be placed on that driver over and above any potential sanctions imposed in criminal court.  For example, even if the defendant wins the DWI case in criminal court, DMV's finding that the driver refused could still stand.

 Also, District Attorney's offices have policies where plea offers will take into account whether the defendant refused the breathalyzer.  This means that oftentimes, the plea offer made to a defendant who refused the breathalyzer is worse than those made to a defendant who submitted.   Lastly, the fact that a defendant refused the breathalyzer will be testimony that a District Attorney will use as evidence of consciousness of guilt.

However, there may be certain circumstances when a driver should strongly consider refusing the breathalyzer test such as: if an accident occurs where there is serious injury or death or if the driver has been convicted of DWI offenses in the past.

What are the consequences of a first-time offense? 

There is no automatic answer to this question because it depends on other facts, such as: Was there an accident?  Did the defendant refuse the breathalyzer test? What county in New York did this occur?  Generally, the consequences for first-time offenders will include a license suspension or revocation, a fine, a DWI class, and in some cases, possibly community service, an alcohol program, and an ignition interlock system. 

What are the consequences of a second-time offense? 

Similar to the answer above, the consequences for second-time offenders depends on other facts.  However, there is one major distinction.  In cases where a defendant is charged with 2nd DWI offense within 10 years of another, a DA has the power to charge a defendant with DWI as a felony.  If that occurs, the consequences of a conviction of a Felony DWI grow more severe.  For instance, increased time periods for license suspensions and sanctions, increased fines, and great potential for probation and/or incarceration.

Should I fight a DWI charge?

There are many good reasons and many good strategies to fight a DWI charge.  There are many defendants who require their license of job or personal responsibilities.  There are others whose employment could be negatively affected by criminal record caused by a DWI conviction.  Fighting a DWI charge – even if it means negotiating the DA down to a lesser DWI charge (DWAI) that will not lead to a criminal record.  Strategies for fighting DWI charges consist of cross examining the arresting officers and raising doubt about their alleged observations of a defendant's driving and of the defendant's appearance and demeanor.  Also, when it comes to cases where there is a breathalyzer reading, it is extremely important that a defense attorney attack the validity and operation of the breathalyzer that was utilized in the case.  Often times the help of an expert is needed to focus of this portion of the defense.  The goal here is that if a defense attorney can show that the breathalyzer is unreliable, then the DA will have a more difficult time proving that a defendant was intoxicated. 

What is a conditional license? 

In New York, if a driver agrees to submit to blowing into the breathalyzer, and the reading is a .08% or greater (which is the legal limit in New York), a judge then has the power to automatically suspend a defendant's license.  This law, which has been in effect for several years, is a major hindrance for anyone charged with a DWI offense and where the BAC reading is at or above the legal limit.  What is significant about this law is that a defendant is effectively sentenced or sanctioned even if a defendant ultimately is acquitted of the DWI or pleads guilty to a lesser DWI offense when the case resolves.

Given this severe sanction, defendants often require the use of a conditional license in order to maintain driving privileges so that they can drive to work or drive a family member to an important location like a doctor.  For many defendants this is a welcomed benefit so that they are not totally without the ability to use their vehicle for important obligations in their life.

What happens if I get a DWI under the age of 21? 

New York is a “zero tolerance” jurisdiction.  This means that any driver under that age of 21 who is caught driving where a BAC level can be measured between .02-.07 will result in a DWI arrest and incur various sanctions.  For example, if the case is proven, the driver license is suspense for at least 6-months and pay certain fines.  Should a driver sustain a second “zero tolerance” violation, their license will be revoked for at least a year or until the driver reaches 21 – whichever is longer.  The best advice therefore to any driver under the age of 21 is: if you are driving, do not drink a thing.

What are my rights when I have been pulled over?

As with any case where police officers pull your vehicle over and charge you with a crime, you have rights.  You have the right to remain silent.  You have the right to not consent to a search of your car.  You also have the right to challenge any search of your person or of the car as the case proceeds.  However, it is important to remember that when one is stopped for a DWI, there is no 5th Amendment right to refuse a breathalyzer.  Unlike having the right to remain silent,  blowing into a breathalyzer is unlike giving a statement, so, you have the ability to refuse to blow, but this refusal will be used against you. 

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Our firm serves clients in New York City, Long Island, Kings, Bronx, New York, Queens, Richmond, Nassau, Suffolk, Westchester, and Rockland Counties, and San Juan, Puerto Rico.