INSIGHTS

Home > Case Studies > DWI > Types of DWI Offenses in New York State 

Types of DWI Offenses in New York State 

by | Aug 28, 2023

Being charged with the offense of driving while intoxicated can be stressful and overwhelming. However, it’s important to understand that the consequences you may face can depend upon the facts and circumstances surrounding the DWI — and the specific offense with which you’ve been charged. Under New York Vehicle and Traffic Law (VTL), there are several types of DWI offenses that each carry their own possible penalties, including monetary fines, jail time, and license revocation.

Driving While Ability Impaired by Alcohol

Driving While Ability Impaired (DWAI) is a VTL violation that a driver may face even if their BAC is below .08%. Unlike a DWI which requires proof of intoxication, a DWAI only requires that the prosecution prove the driver was “impaired” by alcohol. Generally, a BAC of .06% or .07% is considered sufficient to establish impairment. Although a DWAI is a violation — and not a misdemeanor or felony — it can still carry significant penalties, including a $300-$500 fine, a maximum jail sentence of 15 days, and a 90-day driver’s license suspension.

Driving While Intoxicated, Per Se

Under New York VTL § 1192.2, a driver can be convicted of the offense of Driving While Intoxicated, Per Se if the prosecution can establish that they were operating a motor vehicle with a BAC of .08% or more. It is not necessary to prove that the individual was driving erratically — only that they violated the law by having a BAC above the legal limit. A first DWI can result in a monetary fine of up to $1,000, a one-year jail sentence, and license revocation for at least six months. 

Aggravated DWI, Per Se

An Aggravated DWI means a driver was operating a motor vehicle with a BAC of at least .18%. This offense is codified under VTL § 1192.2-a and is more serious than a regular DWI. While it is also a misdemeanor, an Aggravated DWI comes with harsher penalties, including a fine between $1,000 and $2,500, one year in jail, and license revocation for at least one year. A second Aggravated DWI within a ten year period can be charged as a felony that carries a four-year jail sentence, three years of probation, a $5,000 fine, and license revocation for 18 months.  

Aggravated DWI, with a Child in the Vehicle

Operating a motor vehicle while intoxicated by drugs or alcohol with a child 15 years or younger in the car is a Class E felony under VTL § 1192(2-a)(b). This offense is punishable by up to four years in jail and a $5,000 maximum fine. However, a driver can be charged with a C felony, punishable by 15 years in jail if a child sustains a “serious physical injury” as a result of their conduct.  

Driving While Intoxicated (Common Law DWI)

A common law DWI typically involves a driver who refused a chemical BAC test. In such cases, the prosecution must prove intoxication through other evidence, such as field sobriety tests or an officer’s observations — unlike in a per se DWI where the prosecution relies upon a chemical test. Not only can a driver face jail time and fines if they are convicted of a DWI, but refusing a chemical test can result in a civil penalty and license revocation by the DMV under New York’s Implied Consent laws. 

Driving While Ability Impaired by Drugs

Driving while under the influence of a controlled substance is a misdemeanor under VTL § 1192(4). To establish a drug DWAI, the prosecution must prove that the drug impaired the driver’s ability to operate a motor vehicle by any degree. Unlike with an alcohol DWAI, there is no per se standard that can be measured by a chemical test. The evidence in the case will usually focus on the observations of law enforcement. A person found guilty of this offense can face a fine up to $1,000, one year in jail, and license revocation for at least six months. 

Driving While Ability Impaired by Combined Influence of Drugs and Alcohol

Operating a motor vehicle while under the influence of multiple drugs or both drugs and alcohol is a misdemeanor under VTL § 1192(4-a). Punishment for a first offense can include a fine up to $1,000, a one-year jail sentence, and license revocation for six months. A second offense within ten years can be charged as a Class E felony that comes with a $5,000 fine, a four-year jail term, and license revocation for at least one year. A third conviction within ten years is a Class D felony that comes with a $10,000 fine, a seven-year jail term, and license revocation for one year.        

Contact an Experienced New York DWI Attorney

If you have been accused of a DWI or DWAI, it’s essential to have a skillful criminal defense attorney by your side who can fight the charges against you. The attorneys at D’Emilia Law offer experienced representation to those who are facing alcohol or drug-related driving offenses and work to obtain the best possible results in their cases. To schedule a consultation, contact us at 1-888-DEMILIA.

DWI
Constructive Possession

Understanding Constructive Possession in Drug Cases

There are two types of possession in New York drug crimes — actual and constructive. Significantly, constructive possession is an alternative theory to actual possession that allows a person to be charged with a drug-related offense, even if they did not have the...
What are Mitigating Factors in DWI Sentencing? cover

What are Mitigating Factors in DWI Sentencing?

If you’ve been convicted of a DWI, a judge will consider both aggravating and mitigating factors when determining your sentence. Mitigating factors are circumstances that can reduce your level of culpability — and lessen the penalties that might be imposed. It’s...
Ignition Interlock Device

What Happens if You Violate the Ignition Interlock Device Requirements?

If you were required to install an ignition interlock device (IID) in your vehicle in connection with a DWI, it’s crucial to comply with the court order. Violating an IID mandate is a serious matter that can be charged as a misdemeanor offense, resulting in jail time...
How Can an Expert Witness Help in My DWI Case? cover

How Can an Expert Witness Help in My DWI Case?

Being convicted of a DWI is a serious matter that can come with significant repercussions — and it’s crucial to mount a solid defense. If your DWI case will be going to trial, your criminal defense attorney might want to bring in an expert witness as part of your...
Can Medications and Medical Conditions Affect Breathalyzer Results? cover

Can Medications and Medical Conditions Affect Breathalyzer Results?

Breathalyzers are commonly used by the police when they pull someone over on suspicion they are driving while intoxicated. While these devices measure blood alcohol content (BAC) to determine whether the driver is impaired, there are a number of reasons why they may...
What’s the Difference Between Drug Possession, Sale, and Intent to Sell a Controlled Substance in New York? cover

What’s the Difference Between Drug Possession, Sale, and Intent to Sell a Controlled Substance in New York?

Drug selling and possession offenses are two categories of narcotics crimes that are prosecuted aggressively in New York. While drug possession involves holding a controlled substance for personal use, the criminal sale of a controlled substance refers to selling,...
When Are Breathalyzer Results Inadmissible in New York? cover

When Are Breathalyzer Results Inadmissible in New York?

A breathalyzer is a tool regularly used by law enforcement in New York DWI cases to determine whether a driver’s blood alcohol concentration (BAC) exceeds the legal limit. However, there are certain protocols that must be followed and legal requirements that must be...
What is Double Jeopardy and How Does it Work in a Criminal Case? cover

What is Double Jeopardy and How Does it Work in a Criminal Case?

Double jeopardy protects criminal defendants from being tried more than once for the same offense. It is a right that is afforded to the accused under both the Fifth Amendment of the U.S. Constitution and New York Criminal Procedure Law. Specifically, it provides...
What is the Right to a Speedy Trial? cover

What is the Right to a Speedy Trial?

The right to a speedy trial is a fundamental right under both the U.S. Constitution and New York State law. It guarantees that an individual charged with a crime must be prosecuted in a timely manner — they cannot be incarcerated indefinitely without having their case...
Violating Probation

What are the Consequences of Violating Probation in New York?

Probation is a common alternative to jail time for certain criminal offenses in New York. While probation can allow someone who is convicted of a crime to remain in their community, specific terms and conditions must be followed. Failure to do so can result in a...