The Complete Guide to New York DWI Law
The Complete Guide to New York DWI Law was created to help people arrested for an alcohol related offense minimize their consequences.
Understanding DWI in New York State
Being convicted of a DWI in New York State is a serious offense. A conviction can take a heavy toll on your finances, family, career, and basic freedoms – and could even lead to jail time. The consequences of a DWI last long after your sentencing. However, being charged with a DWI is not the same as being convicted of a DWI, and the penalties meted out after an arrest depend on many factors – including your driving and criminal history, your performance on sobriety tests, and your behavior toward the arresting officers. With the help of an experienced attorney, you can use these factors to your advantage, no matter the charge and no matter the situation. You can start by understanding the different charges, penalties, and possible outcomes associated with DWI in New York State.
>> DWI, DUI, DWAI: What’s the difference?
- DWI: This stands for “Driving While Intoxicated.” A person may be convicted for DWI if he or she was driving with a blood alcohol content (BAC) of .08% or higher.
- DUI: Though you’ll sometimes hear the term DUI, or “Driving Under the Influence,” it’s not a legal term used in New York State.
- DWAI: The closest New York equivalent to what other states call DUI is DWAI: it stands for “Driving While Ability Impaired.” The most salient difference between DWI and DWAI is that DWI is a criminal misdemeanor, and DWAI is a traffic infraction, or violation. This means that DWI will carry harsher penalties, including fines and possibly jail time.
If you are charged with a DWI in New York State, you should consult with an experienced attorney about the chances of reducing your conviction to a DWAI.
>> What if I’m pulled over for drinking and driving and I’m under 21?
New York State’s Zero Tolerance Law pertains to underage drinking and driving. If you are under the age of 21 and are arrested after driving with a blood alcohol level of .02% or higher, you may face disciplinary actions from the Department of Motor Vehicles. If you are charged of “driving after having consumed alcohol,” a special violation under the Zero Tolerance Law, you will be summoned to a DMV Administrative Hearing (failure to attend will result in a temporary suspension of your license). You may have a lawyer present, and you may present evidence, including calling witnesses, in your defense, though you are not entitled to a public defender for an administrative hearing.
“Driving after having consumed alcohol” is a violation, not a crime. If your BAC was at or below .05%, you will not face any jail time in New York State. At the very least, however, the DMV will suspend your license for six months and you will pay a civil penalty of $125. You will pay an additional $100 to have your license reinstated.
If you have no prior driving offenses or violations, you may be eligible for a conditional license, which would allow you to drive back and forth from work and school. If eligible, you may receive a conditional license upon enrolling in an approved Drinking Driver Program – both the program and the license carry additional fees.
If police stop you and find your BAC to be more than .05% but less than .08%, they may charge you with a DWAI, a more serious violation; you will be arrested and summoned to court, and could face up to 15 days in jail, though if you cooperate with police and with the court this outcome isn’t likely. If your BAC is above .08%, you will be charged with a DWI, a criminal misdemeanor. Then the consequences, particularly license revocations, could be higher than they would be for drivers 21 and older.
>> What is an Aggravated DWI?
You may face a charge of Aggravated DWI if you:
- Had at least one child 15 or younger in the car.
- Had a BAC of .18% or higher.
The consequences for Aggravated DWI are more severe. If the cause was a BAC of .18% or higher, you may be convicted of a misdemeanor, but if you were charged because of one or more children in the car, you may be convicted of a Class E felony.
>> What is Leandra’s Law?
Passed unanimously in the New York State Assembly and Senate and signed by then-Governor David G. Patterson in 2009, Leandra’s Law, or the Child Passenger Protection Act, makes it an automatic Class E felony to drive intoxicated (BAC .08% or above) with a person 15 or younger in your car. You have violated Leandra’s Law if a child 15 or younger was in your vehicle and you were driving while intoxicated. As a felony offense, this could result in fines of over $1,000, and up to four years in jail.
>> What if I’ve been charged with DWI and have a Commercial Driver’s License?
Penalties may be higher for Commercial Drivers charged with DWI – and the consequences could reach far beyond the courtroom. The holder of a Commercial Driver’s License (CDL) may have his or her license suspended for a year, be imprisoned for up to a year, and/or pay a fine of up to $1,000. If you hold a CDL and have been charged with a DWI, your livelihood is at stake. Seek the help of an experienced attorney immediately.
>> Can I be charged with DWI for using vehicles other than a car?
You can be charged with Boating While Intoxicated under New York State Navigation Laws. Since legislation passed in 2006, penalties for BWI and BWAI have been on par with penalties for DWI and DWAI in New York State.
In some states, you can also be charged with a DWI while riding a bicycle. This isn’t the case in New York: state DWI law is limited explicitly to motor vehicles. Individuals riding altered bicycles equipped with a motor may still be charged with a DWI; individuals riding any bicycle while intoxicated may still face misdemeanor charges for public intoxication or public endangerment, for example.
The same applies to horses and to horse-drawn carriages. Because of the precedent of People v. Szymanski (1970), drivers of horse-drawn carriages, while subject to all the traffic regulations governing motor vehicles (such as stopping at red lights, keeping right, etc.), may not be convicted of DWI or DWAI.
>> Can I be charged with a DWI in a non-moving vehicle?
Some drivers see flashing lights behind them and attempt to pull off the road or into a driveway to avoid being charged. Unfortunately, the vehicle doesn’t have to be moving for a person to be charged with DWI. If you are in control of the vehicle, or if the officer has reason to believe you were operating the vehicle while intoxicated, you may still be charged. Officers have significant discretion in these cases. If you’ve been charged with a DWI while sitting in a non-moving vehicle, you should seek an experienced attorney to defend you.
|Charge:||DWI (misdemeanor)||DWAI (violation)||CDL DWI (misdemeanor)||Aggravated DWI (misdemeanor OR Class E felony)||Under 21: “driving after having consumed alcohol”|
|For:||BAC ≥ .08%||BAC ≥ .05% ≤ .07%||BAC ≥ .08% with CDL||a. BAC ≥ .18%||BAC ≥ .02 ≤.05 and under 21 years of age|
|b. child ≤ 15 in the car|
|Costs:|| i. $500-1,000 fine
ii. Maximum 1 year in jail
iii. Min. 6 months license revocation
| i. $300-500
ii. Max. 15 days in jail
| i. $1,000
ii. Max. 1 year in jail
iii. 1 year license revocation
| i. $1,000-2,500 fine
ii. Max. 1 year in jail, max. 4 with a child in the car
iii. 1 year license revocation
| i. $125 civil penalty
ii. 6 month license suspension
iii. $100 to terminate suspension
Penalties increase for anyone charged with second or third DWIs. If you find yourself facing this situation, please seek the counsel of an experienced attorney.
Interacting with police
If you’ve been charged with a DWI, a lot will depend upon the arresting officer’s testimony. When interacting with police, you should try not to see arresting officers as adversaries, or “out to get you.”
If you see that police are signaling behind your vehicle, pull off the road as safely as possible, no matter the circumstances. Cooperate with the police officer in providing whatever information he or she requests. Any statements you make can be used to incriminate you; however, if you are cooperative with the police officer, it may assist in your ability to plead down to a lesser charge.
>> Should I refuse the breathalyzer test?
You are not legally required to take a breathalyzer or blood test; police must obtain your permission before attempting to make such a test. If you refuse to take a breathalyzer test, your license will automatically be revoked for one year. If you are eligible you may seek a conditional license – which allows you to drive to and from work, school, and medical appointments, as well as during a fixed three-hour weekly period of your choosing – but you should be prepared to pay fees for the conditional license and for a New York State Drinking Drivers Program, a total of 16 hours in two-and-a-half to three hour sessions over at least seven weeks.
Refusing a breathalyzer test will be costly, and could limit your freedom of movement for longer. However, if you choose to take the breathalyzer test and register a BAC over .08%, it’s unlikely that you’ll be able to secure a DWAI, and would be marked by a criminal misdemeanor rather than a violation. If possible, you should consult with an attorney before deciding whether you will take the test.
Preparing for a Trial
>> When will my DWI be “over”?
After “what will it cost me?” the first thing clients charged with a DWI usually ask an attorney is, “When will this all be over?”
The DWI “process” can last from two months to a year, depending upon the need to gather evidence, complications from any injuries or damages involved, and the speed of the courts. However, a DWI or other alcohol-related conviction can have ramifications that extend well beyond the sentencing, and even past the day you pay your final fine. As explained further on, your ability to travel into Canada may be restricted for five years or more; your insurance rates might rise and remain higher for up to 10 years; and if your job depends on your license you may find yourself forced into a new occupation. Convictions for second- and third-offense DWI carry harsher penalties, including, possibly, jail time. Consult with a trusted attorney to get a better understanding of the long-term impacts of as DWI conviction in your particular case.
>> What are my options when charged with a DWI?
Remember: a DWI charge is not a DWI conviction. An attorney can advise you on the best course of action, and in some cases can even hold a pre-trial meeting with the District Attorney’s representative and with the judge to negotiate a plea bargain. If you have no criminal or driving violation history and if you’ve cooperated with the police and with the court, an experienced attorney may be able to reduce your charge from a DWI misdemeanor to a DWAI infraction.
What To Expect: Financial Penalties
DWIs come with a hefty price tag. You might have seen the recent billboards here in New York. One compares the cost of a DWI to the cost of a semester at college. Another reads, “You just blew $10,000.” Despite these shock-and-awe estimates, there is no one set price for a DWI conviction – the cost of a DWI can range significantly, depending on whether the charge is for a first offense, or if other factors complicate the case. The cost doesn’t end with the penalty imposed by a judge, either: you have to account for attorney’s fees, many administrative fees, increases in insurance premiums, and possibly lost income. An experienced attorney can help you anticipate expenses, so you’re better prepared for the road ahead.
>> How much will I have to pay in legal fees?
The first cost of a DWI charge, after a night in jail, embarrassment, and recovering your car, will be your attorney’s fee. This amount often depends on whether it’s your first offense, whether an accident is involved, and if there are any other complications. Expect your attorney to explain any fees and a billing schedule fully at your first consultation. If an attorney is vague about fees, or declines to answer your questions, choose someone else.
>> How much will I have to pay in fines?
As discussed above, the fines for different DWI charges range significantly. A first-time DWAI fine might be as low as $300. A felony third-offense DWI in New York State might carry a fine as high as $10,000.
Refusal of a chemical (breathalyzer) test carries its own fine in New York State – currently $750.
Don’t go into your trial without some idea of what to expect, given the particulars of your case. Consult with an experienced DWI attorney as soon as possible.
>> Will my insurance premiums go up?
Insurance premiums are another serious cost of a DWI conviction – how much they might increase depends upon your state. One recent study found that the most dangerous state for DWI insurance increases was South Carolina, where convicted drivers faced hikes of 4.09x. New York drivers convicted of a first DWI faces a relatively lower insurance premium increase of 1.42x.
Your insurance company may even decline to renew your current plan. When that expires, if no other company agrees to insure you, you will enter the New York Automobile Insurance Plan (the “risk pool”) at a significantly higher cost than your previous plan.
Generally, insurance companies determining premiums factor in alcohol-related convictions for 5-10 years after the conviction. Remember that your life insurance premiums may also rise as a result of an alcohol-related driving conviction.
>> What other fees might I have to pay?
There are many “hidden” fees associated with DWI in New York State. After you’ve paid your court-mandated fine, you may have to pay for a conditional license, and then, later, for the termination of your license suspension. The judge may mandate an alcohol evaluation from a licensed psychologist, and this could lead to a recommendation for substance abuse counseling, which will require at least two urine tests. You may have to attend a Victim Impact Panel, or an approved New York State Drinking Drivers Program. All of these carry fees, ranging from $25 to $225 – they add up quickly. An experienced DWI attorney can help you plot these out in your first consultation.
>> Will I be sentenced to jail if I’m convicted of a DWI?
The maximum jail sentence for a first-time DWI is one year, but a conviction doesn’t necessarily carry any sentence. This depends in part upon the inclinations of the judge and he policies of the District Attorney. Accounting for these factors, if you cooperated with police and with the courts, and if this is your first alcohol-related conviction, a judge wouldn’t likely sentence you to jail time. If, however, this is not your first DWI conviction, and if there were other complicating factors – such as drugs, a BAC of over .18%, aggressive behavior during your arrest, or children in the car – you might be facing jail time over the standard one year maximum.
>> Will I lose my license if I’m convicted of a DWI?
If you agreed to a breathalyzer or other chemical test and were convicted of a DWI in the State of New York, the court will revoke your license for six months, granting you a conditional license. With a conditional license you can drive to and from work, school, and medical appointments, with an additional allotment of three hours unrestricted driving at a fixed time each week. If you refused a breathalyzer test, the court will automatically revoke your license for one year, though you may still be granted a conditional license.
>> Will I lose my job because of my DWI?
You will not automatically lose your job because of a DWI or DWAI conviction. However, some occupational licenses – such as nursing, real estate, and stock brokering – may be revoked because of a conviction. If you are a commercial driver, you will lose your Commercial Driving License, and face stiffer penalties than you would have had you been using a regular license, as discussed above. If you are in the country on a green card, your arrest may lead to deportation or further detainment, jeopardizing your job.
An experienced attorney could be able to help you obtain a Certificate of Relief from Civil Disabilities, or a Certificate of Good Conduct, both designed to aid offenders in rehabilitation.
- Certificate of Release from Civil Disabilities: If the law automatically imposes a ban on your employment because of your DWI conviction, and you have not been convicted of more than one felony, you may apply for a Certificate of Relief from Civil Disabilities effectively to lift that specific bar to employment. A court could issue a Certificate of Relief from Civil Disabilities on the same day as your sentencing; because of this, you should seek the help of an experienced DWI attorney if you hope to achieve this outcome.
- Certificate of Good Conduct: The State Board of Parole may issue a Certificate of Good Conduct to an offender after a minimum period following her or her release from supervision, or from the end of the sentence – three years for a Class E felony and one year for a misdemeanor. If you have convicted of several DWI offenses, this certificate, which will appear beside your conviction on your Record of Arrests and Prosecutions (your “rap sheet”), signals a “presumption of rehabilitation.” This could be very helpful if you’re concerned about the impact of multiple DWI or DWAI offenses on your future employment. An employer may still disregard a Certificate of Good Conduct, however, if your convictions bear directly on your ability to perform the job.
Because any DWI or DWAI conviction poses serious risks to your career, you should seek an expert attorney to explain the best possible outcomes, and help you plan for your future.
>> Will other countries hold my conviction against me?
Policies about visitors with alcohol-related convictions vary from country to country. In most cases, your conviction shouldn’t impact your ability to travel. For New Yorkers, there is one prominent exception: Canada. Canadian law bars the entry of any American citizen convicted of a misdemeanor. Even if your conviction was for a DWAI (a violation), you may still be barred from entering Canada, as it was an alcohol-related offense. Any American citizen convicted of an alcohol-related driving offense and wishing to enter Canada for a short-term visit must apply for a Minister’s Permit with the Canadian Consulate. There is a fee for processing this application, and you aren’t guaranteed that the Canadian government will approve it. Five years after the completion of a sentence for an alcohol-related driving conviction, a U.S. citizen may apply to be “rehabilitated,” and regain the right of free entry into Canada – that individual’s criminal record would in effect be expunged in the eyes of the Canadian government. Again, this application will cost money, and is not guaranteed approval.
>> What is an ignition interlock device?
An ignition interlock device (IID) connects to a vehicle’s ignition system and prevents a driver from operating the vehicle without first submitting to a breathalyzer-like test. If the driver tests positive for alcohol, the vehicle will not start. As a condition of Leandra’s Law, since 2010 any New York State driver convicted of a DWI must use and maintain an ignition interlock device in any vehicle he or she operates. Drivers convicted of a DWAI are not generally required to use an IID.
The IID brings many complications. A driver convicted of a DWI will not be allowed to drive his or her car home from sentencing unless it is already equipped with an IID. Operating any motor vehicle not equipped with an IID – except in certain cases for employer-owned vehicles – will be a crime. Tampering with or bypassing an IID and soliciting or allowing any other person to blow into your court-ordered IID will also be a crime. The cost and maintenance of an IID may run from $500 to more than $800 over the course of six months to a year. It’s important to understand the scope, length, and cost of a possible IID requirement. Seek the counsel of an experienced attorney to help you understand these factors.
>> Will I have to go to counseling?
Depending on the circumstances of your case, the court may order you to undergo an alcohol evaluation with a licensed psychologist. In this session – which, of course, carries a fee – you will answer a series of questions to determine your potential need for further treatment. Depending on your answers, you may be bound by the court to pursue that treatment, undergoing some form of substance abuse counseling, in either group or individual sessions, at an additional cost.
>> Will I have to attend an Impaired Driver Program?
The Impaired Driver Program (IDP), formerly the Drinking Driver Program, is a reeducation and behavior modification tool, separate from any other court-mandated counseling or evaluation. It’s designed to help drivers convicted of an alcohol-related offense to avoid any future charges. These DMV-approved programs are typically 16 hours, lasting a minimum of seven weeks.
Some IDP programs incorporate a form of alcohol evaluation, and, again, depending on one’s answers, the program may require a participant to undergo a separate course of counseling to qualify for completion of the IDP.
Most people who enroll in an IDP do so to obtain a conditional license. You must enroll in person at a specified DMV office; expect a $75 DMV application fee and a $225 program enrollment fee.
>> Will I have to attend a Victim Impact Panel?
In most cases, conviction of an alcohol-related driving offense will include the requirement to attend a Victim Impact Panel. These consist of presentations from volunteer survivors of DWI accidents, and, in some cases, people convicted of DWIs. These are emotional presentations – they offer a rare opportunity to witness the consequences of drinking and driving on real people.
>> Can my DWI or DWAI be expunged?
Your alcohol-related driving offense cannot be sealed or expunged in New York State, no matter how many years have passed since the conviction. New York State Criminal Procedure Law requires the court to seal all records relating to acquittals: if for any reason you’re charged with an alcohol-related driving offense and have these charges dropped, you can rest assured that the court will seal these records. CPL permits a court to seal or expunge records for convictions of noncriminal offenses. DWAI is a noncriminal offense – a traffic violation – but it is also an exception to the rule.
So, if you’ve been convicted in New York State of a DWI or DWAI, you will have a Record of Arrests and Prosecutions (“rap sheet”) sent to the Division of Criminal Justice Services in Albany. There is no way to make this rap sheet “go away.” While public employers sometimes may gain access to rap sheets, your conviction, and the existence of this record, won’t necessarily affect your day-to-day life. While some positions are more likely to require extensive background checks – work with vulnerable groups such as children or the elderly, public trust positions as in police or fire departments – New York State law prohibits employers from using a criminal record as an “absolute” determination of employment, unless a criminal offense and the specifics of the job are directly related, or if a person’s employment could pose a reasonable risk to property or public welfare.
Mapping out the Cost of a DWI
As discussed above, dozens of factors determine the costs of an alcohol-related driving offense. You can’t pick and choose your consequences – the information below isn’t a menu – but you might think of it as a road map, to give you a better sense of “the lay of the land.” Remember that many of these figures are estimates based on offerings in New York State, and will vary significantly.
|Under 21: driving after having consumed alcohol||$125|
|DWI||First offense: $500-1,000|
|Third offense: up to $10,000|
|Refusal of a chemical test: Driver Responsibility Assessment||$750 ($250/year for 3 years)|
|Attorney’s fees||$250 (For only entering a guilty plea.)|
|$1,000-2,500 (For typical cases that involve a pre-trial or plea bargain.)|
|Up to $25,000 (For complicated cases involving injuries/damages, multiple offenses, etc.)|
|Substance Abuse Counseling||$75/session, up to $250|
|Impaired Drivers Program Application||$75|
|DMV photo document fee||$12.50|
|Impaired Drivers Program Enrollment||$225|
|Termination of license suspension||$50|
|Ignition Interlock Device||$300-800|
|Driving insurance premium increase||$142/year (based on yearly rate of $1,000)|
|Effect on employment||Incalculable|
|Lowest estimated cost of your alcohol-related charge||$125|
|Mid-range estimated cost of your alcohol-related charge||$5,000|
|Highest estimated cost of your alcohol related charge||> $36,000|
There are too many variables to predict the final cost of your alcohol-related driving conviction. You need the help of an experienced DWI attorney to get a grasp on the costs and consequences you might be facing, and to achieve the best possible outcome.
A DWI can be life-changing, but if you’ve been charged with a DWI it’s important to remember throughout the process that your life isn’t over. By the time you’ve paid all your fines and the court’s penalties and restrictions have been played out, you’ll probably have settled back into the rhythms of your career, hobbies, and family life.
You should learn something from this experience: the cost of a taxi, a hotel, or showing up late to work are all far less than the thousands of dollars in fees and penalties that come with a DWI charge, not to mention the stress and time wasted in courts, classes, and attorneys’ offices.
To help speed along this process, give you peace of mind, and secure the most desirable outcome in court, you need an experienced DWI attorney on your side.
If you have been arrested or charged with DWI or an alcohol related charge in New York it is important to hire an experienced lawyer. Contact DWI Attorney Robert Friedman in Buffalo NY for complete defense.