The Pocket Guide to New York DWI Law was created to help people arrested for an alcohol related offense, who wish to understand what they can do to protect themselves.
DWI IN NEW YORK STATE
For better or for worse, America is a car culture. We like to move fast and we don't like when things get in our way. We make movies about highways and writes love songs to jalopies. Our identity, both as a nation and as individuals, is often tied up with cars: what we drive, where we drive, and how we drive. Anything that threatens the privilege of driving when you want and where you want, then, can be devastating.
A DWI charge in New York State is a serious matter. If you've been arrested for an alcohol-related driving offense, you could be facing a few hundred or several thousand dollars in fines and other surcharges. A criminal conviction or the loss of your driver's or other professional license could seriously hurt your career by hampering your employability and eliminating job opportunities. You might face embarrassing or uncomfortable situations like an alcohol evaluation, Impaired Drivers Program, Victim Impact Panel, and a public trial. You might even be worried about facing jail time. However, with an experienced attorney, you could make the best of a bad situation, achieve a better outcome in trial or through a plea bargain, and take those first steps to getting your life back on track – and getting back on the road.
The first thing you should understand is that not all alcohol-related driving situations, charges, and convictions are the same. New York DWI law has different classifications for impaired driving. Some of the classifications are:
DWI (DRIVING WHILE INTOXICATED)
- The driver has a blood alcohol concentration (BAC) of .08% or higher.
- The driver is operating a commercial vehicle and has a BAC of .04% or higher.
- The driver has a BAC of .18% or higher.
- The driver was intoxicated and carrying a passenger 15 years of age or younger.
DWAI (DRIVING WHILE ABILITY IMPAIRED)
- The driver has a BAC between .05 and .07%
UNDER 21: “DRIVING AFTER HAVING CONSUMED ALCOHOL”
- The driver is under 21 and has a BAC between .02 and .05%.
The difference between these offenses can run deeper than BAC. Penalties can range from a few hundred dollars for a DWAI to several thousand dollars for an Aggravated DWI. These are also different types of offenses.
A DWAI is a traffic violation, or infraction – in other words, not a crime. The maximum jail sentence for a DWAI in New York State is 15 days, but this is rare.
A DWI is a misdemeanor, with a maximum of one year in jail (though this wouldn't likely happen for a first-time offense).
An Aggravated DWI, if a child of 15 or younger is in the car, is a felony, with jail sentences exceeding one year.
Remember that you can still be committing the crime of DWI even if you are driving while impaired by drugs instead of alcohol.
COMMON QUESTIONS ABOUT DWI
How much will an attorney charge me for a DWI defense?
An attorney's fees will depend upon the particulars of the case. Were there accidents, injuries, or deaths involved? Is this your first DWI-related charge? Were you charged with an Aggravated DWI? Other things, like any motions your attorney has to file, or whether you resolve the case in a trial or in a plea agreement, will impact the cost. A consultation, however, should be free.
How long does a DWI case take to be resolved?
A DWI case might be resolved in as little as one month, or as long as nine to 10 months. Most cases, however, wrap up in three to six months. This time frame allows your lawyer to file motions on your behalf, work out a plea bargain is possible, and take the case to trial if necessary.
Will I go to jail for a DWI?
This depends on the circumstances of your case. If the DWI is your first offense, it's unlikely that you'll go to jail. However, a judge may be more inclined to impose jail sentences in cases involving:
- A very high BAC reading
- An accident
- A child 15 or younger in the car
How long will a DWI stay on my record?
In New York State, a DWI conviction will stay on your record permanently, and cannot be expunged or sealed. A conviction for DWAI, DWI, or refusing a breath test can impact one's driver's license for 25 years – if, for example, you find yourself with multiple offenses and reapplying for a revoked license, the DMV may deny you, delay your request, relicense you with a problem driver restriction, or require you to submit proof of rehabilitation.
What are the long and short term effects of a DWI on my license?
New York State suspends the license of any individual charged with DWI pending prosecution, but an attorney can help you get a “hardship license.” A hardship license will allow you to drive to and from work, medical appointments, or school if you are a student. An attorney may also be able to help you get a conditional license after 30 days, allowing you to drive to work, school, and medical appointments, as well as allowing you three consecutive hours of leisure driving at a set time each week.
Can I represent myself in court?
You are entitled to represent yourself in a DWI case as in any other case. However, you should know the very serious consequences that could befall you. In any DWI case, you face the possibilities of hundreds or even thousands of dollars in fines, jail time from a few days to a year or more, and serious restrictions on your ability to operate your vehicle and move about freely in the world. Don't take this lightly. Consider the benefits of hiring an experienced attorney, who'll be able to relieve some of the stress of your situation and fight for the best possible outcome.
Should I refuse a breathalyzer test in New York?
People often ask whether they can – or should – refuse a breathalyzer test. In every state, you are entitled to refuse a breath test. However, there are immediate consequences. Your license will be suspended for one year and you will face a $750 fine. The prosecutor may use your refusal as evidence of your “consciousness of guilt.” On the other hand, accepting a breathalyzer test gives the prosecution hard evidence that won't be easy to overcome, overturn, or have dismissed. Refusing a breathalyzer test might mean the difference between being charged with a DWI (a misdemeanor) and a DWAI (a traffic violation).
What is Leandra's Law?
The New York State legislature passed “Leandra's Law” in 2009. This reduced the BAC limit for DWIs from .10% to .08%. Secondly, it states that if you are arrested for a DWI and you have a child of 15 or younger in the car, that charge will be raised to an Aggravated DWI, which carries harsher penalties (explained further on). This is a felony charge. You can also get an Aggravated DWI for driving with a BAC of .18% or higher, but this Aggravated DWI is a misdemeanor.
Can I get a DWI on a boat?
Boating While Intoxicated – BWI – carries many of the same penalties as a DWI. If charged with BWI, your driver's license will not be suspended, but your privilege to operate the vessel may be suspended for six months to one year for a first offense. On top of this, if you're charged with a DWI and have a BWI already on your record, a judge will consider this during sentencing, and you may receive harsher penalties.
CHARGES AND COSTS
What are the penalties for a DWI?
The severity of your punishment will depend on several factors, such as your age, anyone else that was in the vehicle, the type of vehicle you were operating, the substance that made you intoxicated, whether this is your first DWI offense, and whether you agreed to submit to a chemical test. There are also two types of penalties you can face, criminal and civil. Criminal penalties can include:
- Fines: Between $300 and $5,000
- Jail time: Between 15 days and 4 years
- License suspension: Between 90 days and 18 months
- You will have an ignition interlock device installed in your car, requiring a breath sample before you can operate it.
If you refuse to submit to a chemical test, you will have your driver's license suspended for a minimum of one year and have to pay up to a $750 civil fine, even if you are not criminally convicted of DWI. This is because New York has an implied consent law. This law means you can be civilly punished for refusing to submit to a chemical test even though you are not criminally found guilty of DWI.
What is a DWAI?
Many states recognize an offense slightly less serious than a DWI. Some call it a DUI, “Driving Under the Influence.” In New York, we have the DWAI, “Driving While Ability Impaired.” DWI is a misdemeanor – this means that if a DWI is your first run-in with the law, you could walk away with a brand new criminal record. A DWAI, however, is a traffic violation – like speeding or driving without tail lights. Instead of the .08% BAC metric of the DWI, police can charge you with a DWAI if you operate a motor vehicle and your ability is impaired to any extent by alcohol or drugs. Usually this means between .05 and .07% BAC. An experienced attorney may be able to reduce your charge to a DWAI. Penalties for a first-offense DWAI include:
- A fine of between $300 and $500, up to 15 days in jail, or both;
- Suspension of your driver's license for 90 days (unless you are under 21 or possess a Commercial Driver's License (“CDL”));
- A surcharge of $255 ($260 if the case is in either a Town or a Village Court);
- A driver responsibility assessment of $250 a year for 3 years; and
- A requirement that you attend a Victim Impact Panel.
What is the cost of an Aggravated DWI?
There are two ways to get a charge of aggravated DWI: driving intoxicated with a child under 16 in the car, or driving intoxicated with a BAC of .18% or higher. While still a misdemeanor, the penalties for this crime are higher. The fine could range from $1,000-2,500 with additional surcharges, the immediate revocation of your license for six months to one year, three years of probation, and up to one year in jail. Judges are more likely to impose jail sentences in cases of Aggravated DWI.
What's the effect of a DWI on a Commercial Driver's License?
If you have a Commercials Driver's License (CDL) and are convicted of a DWI, your license will be suspended for one year. If you were driving a commercial vehicle, that suspension may be longer.
A Commercial Driver's License is a valuable asset that you might need to earn your living. If you've been charged with a DWI and are worried about your CDL, consult an experienced attorney.
I was in a car that was pulled over, and the police found narcotics, guns, and other contraband, but they weren't mine. Will I be charged?
New York State Criminal Law sets down a principle called “vehicle presumption.” This means an arresting officer, and later the court, must presume that anyone inside a car simultaneously with drugs, weapons, or other contraband, “possesses” that contraband. That means if you're in a car with any contraband, the courts can charge you with possession of that contraband, even if you didn't know it was there. The “presumption” doesn't always result in a conviction, though. An attorney can examine the facts and circumstances of how you arrived in that vehicle, how the contraband came to be present in that vehicle, and who else may have been inside that vehicle, all of which might help your case.
What are the charges for driving with a suspended license?
There are many reasons a court or the DMV might have suspended your license: multiple traffic violations, failure to pay fines, failure to appear in court, or a DWI. If caught and arrested, your charge will be aggravated unlicensed operation of a motor vehicle, and you could face a fine of $200-300 and imprisonment up to 30 days.
Facilitating the aggravated unlicensed operation of a motor vehicle is also a crime. If you allow someone without a license or with a suspended license to drive your car, you may face a fine of $200-500 and up to 15 days in jail.
DEALING WITH THE POLICE
If an officer pulls you over, the way you interact with that officer could determine your outcome in court. The important thing to do is be courteous and indicate that you will hire an attorney to deal with the situation in court.
Your outcome depends on a lot of things – the hard evidence of a breathalyzer test, your performance on roadside evaluations, any previous criminal or DWI-related history, and your attorney's ability to negotiate a plea deal – but in general, individuals who are calm and cooperative see better results. You cannot win an argument with an officer about whether you should be arrested and/or ticketed. Hire an attorney to help you fight that charge.
Do I have to let the police search my car?
The police have the right to search your car in three scenarios:
- Probable cause: For example, an officer smelled marijuana coming from your car.
- Consent: You have given consent.
- Arrest: If an officer arrests you, the police can search your car as part of the impounding procedure.
If you have not been arrested and the officer does not have probable cause to search your car, you may refuse. It's best to be polite. You might say something like, “No, you may not search my car. That would not be convenient for me now.”
An attorney can help you with a DWI-related charge in many ways. First, an attorney can examine whether an officer had a proper reason to pull you over and investigate the offense.
Does arrest always lead to conviction?
To obtain a DWI conviction, the state must prove you operated a motor vehicle while intoxicated. This is usually done by testing your BAC by taking a sample of your blood, urine, breath or saliva. However, you can still be convicted of DWI even if you never submit to a chemical test that measures your BAC. This is because the police officer's observations during the stop, as well as your field sobriety test performance, can serve as evidence.
There are many ways for an experienced DWI Attorney to undermine the evidence that “proves” you operated a motor vehicle while intoxicated.
Police officer's observations can be unreliable, BAC test machines can malfunction, BAC results can be misinterpreted and a police officer may have violated your constitutional rights when he or she pulled you over or arrested you.
The arresting officer didn't read me my Miranda rights. Can I have my charges dismissed?
Individuals often believe that, if they were not read their Miranda rights, their case should be dismissed, but it is important to remember that those rights are not relevant for all matters. Miranda rights pertain to custodial interrogation. If an officer failed to read you your Miranda rights and you were not free to leave, any statements you made to incriminate yourself may not be allowed in court. It's important in any case to remember whether an officer read you your Miranda rights, and to go over any statements you made with an attorney.
If I go to trial, will I automatically lose?
You will not necessarily “lose” if you go to trial. Your attorney may work out a plea bargain with the district attorney beforehand. In that case you will still go to trial, and there the judge will offer you a plea bargain. Most New York criminal cases are resolved in this way.
In rare cases with serious contentions – if, for example the arresting officers violated your rights in some way while charging you with a DWI – you may present your case in court and have the charges dismissed or reduced.