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DWI PENALTY STATUTES

Driving While Impaired by Alcohol, VTL Section 1192.1:

Considered a non-criminal "traffic infraction" which does not leave the driver with a criminal record, this is the least serious DWI offence. The penalties can range from a minimum fine of $300.00 and a maximum fine of $500.00 to up to 15 days in jail or both. However, if the driver has already been convicted of one prior DWI offense in New York, the penalty is increased to a minimum fine of $500.00 and a maximum fine of $750.00 or 30 days in jail or both. If the driver has been convicted of two or more DWI offenses in New York, then the classification of this DWI offense is changed to a misdemeanor (which does give the driver a criminal record) with a minimum fine of $750.00 and maximum of $1,500.00, plus up to 180 days in jail or both. A mandatory 90-day suspension of the driver's license to operate a vehicle will be imposed if the motorist has no prior DWI convictions. The suspension is for 6 months where the motorist does have a prior DWI conviction. However, courts are often willing to postpone that suspension for 20 days in order for the motorist to petition the Department of Motor Vehicles for a restricted license that will permit them to drive to and from work only.

Driving While Intoxicated, VTL Section 1192.2:

This is the standard, garden-variety offence that is typically charged when a motorist is arrested for DWI. It is considered a misdemeanor and does constitute a crime, giving the driver a criminal record. The minimum penalty, assuming no prior convictions for DWI as a misdemeanor, is a minimum fine of $500.00 and a maximum fine of $1,000.00 or both. A term of no more than one year in prison is authorized. The mandatory license revocation is for 6 months, with the same provision for a restricted license through DMV as outlined above.

CLICK HERE FOR EXPANDED PENALTY INFORMATION

DWAI - First Offense

A person is guilty of DWAI if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of alcohol. DWAI is a traffic infraction -- not a crime. By contrast, DWI and DWAI Drugs are crimes.

It is common for a person charged with DWI for the first time to receive a plea bargain offer reducing the charge to DWAI. However, while such an offer is common, it is by no means assured. For example, many District Attorney's Offices will not offer a reduction to DWAI if the person had a BAC over a certain level (e.g.,.13%), if the person refused to take a Breathalyzer test or a blood test, if there was an accident, if there was a child in the car, if the person was obnoxious to the police, if the person resisted arrest, etc.

If you are convicted of DWAI as a first offense, you face the following potential consequences:

  1. A fine of between $300 and $500, up to 15 days in jail, or both;
  2. Suspension of your driver's license for 90 days;
  3. A surcharge of $75 ($80 if the case is in either a Town or a Village Court);
  4. A driver responsibility assessment of $250 a year for 3 years; and
  5. A requirement that you attend a Victim Impact Panel.

You will most likely be eligible for the Drinking Driver Program and a conditional license.

DWAI - Second Offense

If you are convicted of DWAI after having been convicted of DWI, DWAI or DWAI Drugs within the past 5 years (the 5 years runs from the date of the prior conviction to the date of the present charge), you face the following potential consequences:

  1. A fine of between $500 and $750, up to 30 days in jail, or both;
  2. Revocation of your driver's license for 6 months. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  3. A surcharge of $75 ($80 if the case is in either a Town or a Village Court)
  4. A driver responsibility assessment of $250 a year for 3 years; and
  5. A requirement that you attend a Victim Impact Pane

You will not be eligible for either the Drinking Driver Program or a conditional license

DWAI -- Third and Subsequent Offenses

If you are charged with DWAI after having been convicted of 2 or more violations of DWI, DWAI or DWAI Drugs within the past 10 years, you can be charged with misdemeanor DWAI, in which case you face the following potential consequences:

    1. A fine of between $750 and $1,500, up to 180 days in jail, or both;
    2. A period of probation of 3 years;
    3. Revocation of your driver's license for at least 18 months. In addition, DMV will require evidence of alcohol rehabilitation before it will ever relicense you;
    4. A surcharge of $185 ($190 if the case is in either a Town or a Village Court);
    5. A driver responsibility assessment of $250 a year for 3 years; and
    6. A requirement that you attend a Victim Impact Panel

You may be eligible for the Drinking Driver Program

 

Also, even if the DWAI is not elevated to a misdemeanor, your driver's license will still be revoked for at least 18 months, because once you have 3 or more DWI, DWAI or DWAI Drugs convictions within 10 years, DMV imposes a license revocation of 6 months per offense. Thus, 4 offenses within 10 years would result in a 24-month license revocation, etc.

DWI - First Offense

DWI is a crime, conviction of which will result in a lifetime criminal record. If you are convicted of DWI as a first offense, you face the following potential consequences:

    1. A fine of between $500 and $1,000, up to 1 year in jail, or both;
    2. A period of probation of 3 years;
    3. Revocation of your driver's license for 6 months;
    4. A surcharge of $185 ($190 if the case is in either a Town or a Village Court);
    5. A driver responsibility assessment of $250 a year for 3 years; and
    6. A requirement that you attend a Victim Impact Panel.

You may be eligible for the Drinking Driver Programand a conditional license.

DWI - Second Offense

If you are charged with DWI within 10 years of having been convicted of either DWI or DWAI Drugs, you can be charged with class E felony DWI. Nonetheless, if you are allowed to plead to misdemeanor DWI, you face the following potential consequences:

  1. A fine of between $500 and $1,000, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver's license for 1 year. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  4. A surcharge of $185 ($190 if the case is in either a Town or a Village Court);
  5. A driver responsibility assessment of $250 a year for 3 years; and
  6. A requirement that you attend a Victim Impact Pane.

If you are convicted of misdemeanor DWI after having been convicted of misdemeanor DWI within the past 5 years, you are subject to the following additional mandatory penalties:

  1. 5 days in jail, or 30 days of community service; and
  2. You must install an ignition interlock device in each motor vehicle you own.

If the new DWI charge is more than 5 years from your prior DWI or DWAI Drugs conviction, you may be eligible for the Drinking Driver Program and a conditional license.

DWAI Drugs

Like DWI, DWAI Drugs is a crime, conviction of which will result in a lifetime criminal record. It is critical to note that the standard of proof for DWAI Drugs is the same as that for DWAI Alcohol (that is, a person is guilty of DWAI Drugs if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of certain drugs). In other words, DWAI Drugs is the same level offense as DWI, but you only need to be impaired -- not intoxicated -- to be convicted of this offense.

The consequences of DWAI Drugs are virtually identical to those of DWI, with two critical exceptions. First, due to a glitch in the law, if you are convicted of DWAI Drugs you are not eligible for a conditional license, but you may be eligible for a restricted use license (which is very similar to a conditional license). Second, the additional mandatory penalties for a 2nd DWI conviction within 5 years (i.e., ignition interlock device and either 5 days in jail or 30 days of community service) do not apply to DWAI Drugs.

Felony DWI

If you are charged with DWI after having been convicted of DWI or DWAI Drugs (or Vehicular Assault in the 1st or 2nd degree or Vehicular Manslaughter in the 1st or 2nd degree) within the past 10 years, you can be charged with a class E felony, and face the following potential consequences:

  1. A fine of between $1,000 and $5,000, up to 4 years in state prison, or both;
  2. A period of probation of 5 years;
  3. Revocation of your driver's license for at least 1 year. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  4. Note that while DMV will revoke your license for at least 1 year, the court can, also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that either the court or the probation department have given you permission to drive;
  5. A surcharge of $295;
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.

If your conviction is for class E felony DWI, and your predicate DWI conviction was within the past 5 years, you are subject to the following additional mandatory penalties:

  1. 5 days in jail, or 30 days of community service; and
  2. You must install an ignition interlock device in each motor vehicle you own.

If the new charge is more than 5 years from your prior DWI or DWAI Drugs conviction, you may be eligible for the Drinking Driver Program and a conditional license. However, if you are on felony DWI probation, it is unlikely that the Court will allow you to drive regardless of whether you are eligible to do so.

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If you are charged with DWI after having been convicted of DWI or DWAI Drugs (or Vehicular Assault in the 1st or 2nd degree or Vehicular Manslaughter in the 1st or 2nd degree) twice within the past 10 years, you can be charged with a class D felony, and face the following potential consequences:

  1. A fine of between $2,000 and $10,000, up to 7 years in state prison, or both;
  2. A period of probation of 5 years;
  3. Revocation of your driver's license for at least 18 months. In addition, DMV will require evidence of alcohol rehabilitation before it will ever relicense you;
  4. Note that while DMV will revoke your license for at least 1 year, the court can, also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that either the court or the probation department have given you permission to drive;
  5. A surcharge of $295;
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A requirement that you attend a Victim Impact Panel.
If your conviction is for class D felony DWI, and your predicate DWI convictions were within the past 5 years, you are subject to the following additional mandatory penalties:
  1. 10 days in jail, or 60 days of community service; and
  2. You must install an ignition interlock device in each motor vehicle you own.
Realistically, however, if you find yourself in this situation you will probably be going to jail or prison for substantially longer than this required minimum period.

There is no cost or obligation for a consultation with NY DWI Attorney Ronald Meltzer. Call 646-738-8090, or e-mail Rmeltzer@NycDwiLaw.com, or click here for our Free DWI Consultation Form to submit to our office.

 

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