What is a DWI in New York?
DWI is an acronym for Driving While Impaired, which is the general term for impaired driving offenses in New York. New York has some of the most stringent DWI penalties in the books. A person convicted under the Vehicle and Traffic Law faces a lifelong criminal record, suspension or revocation of license, and even the installation of an Ignition Interlock Device (IID) in the person's vehicle.
There are different categories of impaired driving offenses in the state, and New York state courts penalizes offenders based on the severity of the crime. A person charged or arrested or a violation of this manner needs proper representation to confront the allegations. The resulting alternative is a conviction that attracts a permanent New York criminal record which can affect the person long term.
What is the Difference Between a DWI and a DWAI in New York?
Many people think that a DWI and DWAI are the same thing. While this may ring true for other states, it does not apply to New York because the state separates the requirements and penalties for these offenses. The primary distinction is that DWI stands for "driving while intoxicated," and DWAI represents "driving while ability impaired".
A DWI charge in New York means that the motorist is above the legal Blood Alcohol Content (BAC) limit of at least 0.08%. New York State laws regard such a motorist as intoxicated or drunk. A DWI is a crime under New York law, but a DWAI is a traffic infraction or violation. A person with a Blood Alcohol Content limit of 0.05% to 0.07% attracts a DWAI charge.
A DWAI is more concerned with the substance that impairs the driver. A subcategory of a DWAI charge is a DWAI-drugs charge which arises where the driver is under the influence of drugs, whether prohibited or prescribed. Then, a DWAI-alcohol charge is for driving under the influence of alcohol and attracts a similar conviction with a DWI offense.
Upon conviction for these offenses, different penalties will apply. For instance, DWI convicts must install an IID in the convict's vehicle. The Ignition Interlock Device is a breathalyzer attached to the engine of the car. Before starting the vehicle, the driver must use the device, and if it detects any trace of alcohol, the car will not start.
New York DWI Laws
In the New York VAT, section 1192, individuals may find all alcohol and drug-related offenses. The section further makes the following prohibitions:
- In the New York VAT, it is illegal to operate a motor vehicle when alcohol consumption impairs the driver. The provision calls this offense "driving while ability impaired"(DWAI).
- The provision also makes it illegal to operate a motor vehicle with a blood alcohol content level of 0.08% seen through chemical analysis of the person's blood, breath, urine, or saliva shows this intoxication level. The offense here is "driving while intoxicated"(DWI).
- The New York VAT also states that no person should operate a motor vehicle with a blood alcohol content of 0.18%, shown by chemical analysis. A violation here is "aggravated driving while intoxicated".
- A person driving a motor vehicle in an intoxicated condition commits the offense of "driving while intoxicated" (DWI).
- Driving is illegal when the driver's ability to operate the vehicle is impaired by drugs or the combined influence of drugs and alcohol.
- Suppose a person operates a commercial vehicle with a level of 0.04% or more blood alcohol content, but below 0.06%, the person commits a level 1 DWAI offense.
- When a person operates a commercial vehicle with a blood alcohol content level of 0.06% or more and not more than 0.08%, the person commits a level 2 DWAI.
Section 225 of the VAT empowers the Department of Motor Vehicles to handle and penalize all traffic infractions. The section authorizes the department commissioner to appoint hearing officers to hear and determine matters related to traffic violations and set penalties for these offenses.
DWI Penalties in New York
Section 1193 of the New York VAT provides for the penalties for impaired driving offenses. Driving while intoxicated or impaired by drugs or the combined influence of drugs and aggravated driving while intoxicated are misdemeanors. Appropriate punishments for these misdemeanors are a fine of not less than $500 and no more than $1000 or a minimum term of one year in the county jail, or both. It also attracts a license of six months. The "aggravated driving while intoxicated" offense has a separate minimum fine of $1000 and no more than $2500 or a minimum imprisonment term of a year, or both.
In addition to these penalties, the court may sentence a youthful offender that commits aggravated driving while intoxicated or driving while intoxicated to a term of probation or conditional discharge. Such a person must install an IID for no less than a year from the day of sentencing. It does not apply to a driver with a revoked license due to the offense. The court may also make the convict attend a victims impact program that has presentations concerning the impact of operating a vehicle under the influence of alcohol or drugs.
What Happens When You Get a DWAI in New York?
A DWAI in New York is a traffic infraction and attracts a fine of not less than $300 nor more than $500 or an imprisonment term in the county jail for not more than 15 days, or both for a first offense. It also attracts a license suspension of 90 days. For a second DWAI in five years, the fine is between $500 and $750, jail time of up to thirty days, and a license revocation of a minimum of six months.
What Happens When You Get a DWI for the First Time in New York?
Under section 1194 of the VAT, all motor vehicle drivers in New York consent to a chemical test of one of the following: breath, blood, urine, or saliva. The test is to determine the alcohol and drug content of the blood of the person. Police officers authorize or carry out these tests on reasonable suspicion that the person violates DWI laws. Reasonable ground relates to the circumstances that indicate the violation, like a behavioral indication of alcohol consumption, an open container of an alcoholic beverage, or any other evidence that shows that the driver operated the vehicle after consuming alcohol.
An officer cannot arrest a person under 21 for a DWI but may temporarily detain the person to administer the required breath, blood, or alcohol test. When a driver refuses to take the chemical test, it attracts a revocation or suspension of the person's license. However, the person may appeal the suspension through a hearing at the Department of Motor Vehicles. The hearing is to challenge if the police officer made a lawful arrest and the commissioner has the discretion to restore or confirm the license revocation.
What is the Penalty for a Second DWI in New York?
The DMV penalty for a second DWI within ten years of the first misdemeanor in New York is a fine of between $1000 to $5000. It also attracts a maximum jail term of a year and at least one year of a revoked driving license. The law regards a second DWI as a class E felony, and it has a lighter felony punishment than the other four classes of felonies.
What Happens After a Third DWI in New York?
A third DWI offense in New York has two prior DWIs within ten years, and it climbs a rung up the felony ladder to become a class D felony. It attracts a fine of between $2000 to $10,000 and a maximum jail term of seven years. The convicted driver also faces a license revocation for at least a year.
How Long Does a DWI Stay on Your Record in New York?
A conviction for driving under the influence in New York stays on a person's record for fifteen years from the day of sentencing. The category of driving while ability impaired remains a public record for ten years. More severe convictions like vehicular homicide may stay on public records for life.
The only way to clear the conviction is to get an expungement, erasing a criminal record. However, New York does not have a provision for the expungement of DWI misdemeanors or felonies. So, a DWI conviction will never get off a convicted person's criminal record unless it falls off after the compulsory term of ten to fifteen years, depending on the charge.
DWI Expungement in New York
Generally, New York does not allow the expungement of criminal records, but a 2017 Sealing Law allows for sealing certain records. As a result, eligible persons may request a record sealing on the condition that such persons do not have any convictions for another crime for ten years from the day of sentencing or release. The sealing law covers all misdemeanor convictions except those that require registration as a sex offender.
A person may also seal at least one felony, provided it is not for sex offenses, violent or serious felony. The effect of this sealing procedure is to prevent members of the public, including employers and housing agencies, from seeing the sealed conviction. Some other entities will still have access to it, like law enforcement agencies, courts, probation departments, sheriffs offices, district attorneys' offices, and more.
An interested individual may apply to seal only official court records and the Division of Criminal Justice Services records related to the specific arrest, prosecution, and conviction. Sealing a criminal record does not also mean that the New York State government will destroy records. The process applies only to convictions from courts within New York.
Under the New York State Human Rights Law, employers cannot ask about or act in response to a sealed conviction. The only exception is if the applicant is a police or peace officer. To apply for a record sealing, interested persons may obtain a copy of the request forms from the New York State Courts website. These forms include the "Notice of Motion and Affidavit in Support of Sealing Pursuant to CPL §160.59" form and instructions to complete the process.
How Likely is Jail Time After a First DWI in New York?
Jail time after a first DWI in New York is very likely, based on the New York state's Vehicle and Traffic Law provisions and the judge's discretion. A person convicted for a first DWI in New York faces a maximum penalty for up to a year in jail.
Yet, it is uncommon for a judge to assign jail time for a DWI misdemeanor in practice. Instead, the judge considers other factors like the time and place of the crime, the blood alcohol content of the accused person, and other factors in determining if jail time is an appropriate punishment.
What is the Average Cost of DWI in New York?
A DWI conviction in New York will cost the convict a lot of money, with fines ranging from $300 to $10,000. The court surcharges for a felony offense amount to about $520. Then, every convicted driver must pay a DMV driver responsibility assessment levy of $750.
Drivers who want a conditional license will pay a fee ranging from $200 to $225 to attend the New York drinking driver program. If the driver has to undertake an alcohol and substance abuse evaluation, the driver will cover the cost of the treatment. Then, there is the cost of getting a lawyer to defend the charges in court.
Depending on how complex the case is, average DWI attorney fees in New York may range from $2,000 to $10,000. The DWI convict will also need to buy automobile insurance that is often three times more than the rate for regular drivers.
How Much is Bail for a DWI in New York?
After the arrest of an offender, the offender faces arraignment in one of the New York State courts. The arraignment is the formal reading of the criminal charges against the person, and it is the right place for the person to plead guilty or not guilty. If the offender pleads guilty, such an offender has waived the opportunity to review the prosecution's evidence, file motions, or evaluate possible defenses.
At the end of arraignment, the judge sets bail as a deposit that guarantees the offender's appearance at the next scheduled court hearing. In practice, courts set bail for first-time offenders at about $500 to $1000, depending on the circumstances of the case. If the offender cannot afford bail, such an offender can get a bail bond to cover the bail amount.
How to Get My License Back After a DWI in New York?
Serious traffic offenses or multiple offenses can revoke a person's driving privileges or New York State driver license. A cancellation implies canceling the license and that the person must apply for a new one after the revocation period elapses. Reinstating a revoked license starts with requesting and receiving approval from the DMV Driver Improvement Unit (DIU) before applying for a new license at a DM office.
To apply online, which is the fastest way, interested applicants must create a MyDMV account with a New York State Driver License, Permit or Non-Driver ID and Social Security Number and visit the portal to complete the application process. A $100 re-application fee must accompany the license application, and the department accepts check or money orders payable to the Commissioner of Motor Vehicles.
The applicant must first submit a completed Application for Permit, Driver License, or Non-Driver ID Card (MV-44) with the following if any of the conditions apply:
- The driver must produce a copy of the probation conditions and a letter from the sentencing court or the probation office granting the driver permission to apply for a driver's license. The letter must have the court or probation letterhead.
- For a terminated probation, the applicant must provide a letter from the court or probation department with the termination date on the letterhead.
- A copy of the probation conditions showing no driving restrictions on the applicant
An applicant with two or more alcohol or drug convictions in 25 years must complete an alcohol evaluation and treatment within a year from the date of the final review. The provider must notify the DMV via electronic means of the successful completion. Interested persons may find acceptable providers on the NYS Office of Addiction Services and Supports (OASAS) website. Persons with no access to the internet may call the OASAS HOPE line at (877) 846-7369, which operates toll-free, 24/7.
Before applying for the license, the applicant must pay all outstanding DMV fees like suspension termination, civil penalty, or Driver Responsibility Assessment (DRA). Information on how to pay is on the DMV website.
Applications via mail take up to 12 weeks to process, and upon getting approval, the applicant must wait 30 days before applying for a new license. After completing the Application for Permit, Driver License, or Non-Driver ID Card (MV-44) form, the applicant may send the completed form to Driver Improvement Unit NYS DMV 6 Empire State Plaza, Room 338 Albany, NY 12228.
How Does a DWI Affect Your Life in New York?
The consequences of a DWI in New York go beyond the fines and other penalties. There are real-life consequences that can affect the future of a convicted person. First, the conviction leaves behind a permanent criminal record that makes finding a job difficult. Some jobs require a clean driving record as part of the employment conditions, like bus or taxi drivers are not to have DWI convictions on record.
Upon conviction for a DWI, the sentencing court keeps a record of the case or rap sheet. The rap sheet is a public document to which the police and public employers, in some cases, have access. Some employers conduct background checks on an applicant's criminal history before hiring.
Although section 752(1) & (2) of the New York Corrections Law prevents an employer from denying an employee employment based on a criminal conviction, there are exceptions where an employer can refuse a prospective employee based on that. These exceptions are if there is a direct relationship between the criminal conviction and the employment or that granting the job will pose an unreasonable risk to property or the welfare of specific individuals or members of the public.
Sometimes, it may prevent a convict from entering a prestigious college or receiving financial aid. There is also the factor of increased insurance premiums or outright cancellation of insurance policies to consider because the law regards the driver as high-risk. It can also lead to the suspension or revocation of professional licenses upon conviction.
Can You Get Fired for a DWI in New York?
Yes, a DWI in New York can result in job loss for an employee. New York is an employment-at-will state, which means that the employer or employee may terminate the employment contract without reason. Every contract of employment states the working terms and conduct expected of employees. If the agreement provides that a conviction will result in job loss, it automatically terminates the employment.
If the contract does not provide for such a termination, the employer can still fire an employee after hearing about the arrest or conviction. It also applies whether the arrest affects the employee's performance or not. After the arrest, an employer needs to be on notice, as court dates may disrupt the employee's work schedule, causing poor performance and termination regardless.
How Do I Find DWI Checkpoints in New York?
DWI or sobriety checkpoints are legal tools law enforcement officers in New York use to find intoxicated drivers. These checkpoints spring up mostly on weekends or around certain holidays like Thanksgiving, Halloween, Christmas, etc. However, there are specific requirements for a DWI checkpoint to be considered legal:
- Advance public notification of the checkpoint
- Law enforcement officers need not be intrusive to a motorist
- Adequate warning signs of upcoming checkpoints, e.g., warning lights
- Officers must use a random formula for selecting vehicles to stop
Individuals interested in finding these checkpoints may carry out a third-party search, as there is no official publication to that effect.
Which is Worse, DWI vs. DWAI?
The New York Vehicle Traffic Law considers a DWI as more severe than a DWAI. The reason is that there is a lower blood alcohol content required for a DWAI charge. DWI penalties are also higher in terms of fines, jail time, and license revocation periods. Also, the law requires DWI convicts to install an IID, but it doesn't demand such from DWAI offenders.