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What is a DWI in New York?

All alcohol-related traffic offenses are classified as driving while intoxicated (DWI) and driving while ability impaired (DWAI) in the State of New York. However, driving a motor vehicle under the influence of alcohol may be designated with different terms, in different states, and under different circumstances. These offenses are considered very serious by law enforcement agencies and the New York Criminal Courts. As such, those arrested for DWI or DWAI offenses in New York are required to act swiftly and seek legal help to minimize or even avoid possible consequences.

What is the Difference Between a DUI and a DWI in New York?

From a legal standpoint, there is no such thing as driving under influence (DUI) in New York; the actual charges covering the full range of drunk driving violations in the state are DWI and DWAI. According to the New York Vehicle and Traffic Law §§ 1192(1), 1192(4), and 1192(4-a), DWAI means someone is driving a vehicle while:

  • Under the influence of alcohol
  • Under the influence of a controlled drug
  • Under the combined influence of drug and alcohol
  • With a blood alcohol concentration (BAC) of 0.05 to 0.07

On the other hand, DWI refers to driving with a BAC over the legal limit. In states where DUI is recognized, the term is used when a driver is charged with being under the influence of alcohol or drugs, but not over the limit. While New York solely uses the terms DWAI and DWI, drivers who have out-of-state DUI convictions can face additional criminal penalties when charged with a subsequent offense in the state.

What happens when you get a DWI for the First Time in New York?

DWAI and DWI offenses fall under the umbrella of traffic violations that are considered criminal. Following an arrest, the arresting officer will be required by law to send a completed Notice of Suspension or Revocation Form together with the offender's driver's license confiscated with a sworn report to the traffic courts. First offenders are likely to get charged with a misdemeanor or felony — if there was injury as a result of the drunk driving. The penalties can include one or more of the following:

  • Expensive court fines between $300 - $1000
  • Potential jail time with community service
  • Possible installation of an ignition interlock device
  • Suspension of driver's license
  • DWI alcohol education classes
  • Victim restitution fees (if applicable)

Generally, offenders can contest their penalties and request a hearing within 30 days of receiving the copy of the Order or Judgment with Notice of Entry.

How Likely is Jail Time After a First DWI in New York?

The likelihood of going to jail for a first-time DWI depends on the jurisdiction where the offense occurred and whether or not other aggravating factors exist. Those convicted for a first-time misdemeanor offense in New York may face up to 15 days in county jail. Some counties and city traffic courts offer plea bargains to first-time misdemeanor DWI offenses without jail time. Other counties popular for imposing harsh penalties on DWI offenders may go hard on first-time offenders. No matter the county or city of occurrence, first-time offenders that refused testing may be subject to mandatory jail time.

What are the Typical Penalties for a DWI Conviction in New York?

The penalties associated with DWAI and DWI offenses in New York vary based on prior offenses on records and whether or not someone was injured as a result of the driving under influence. The guidelines for punishing different alcohol-related offenses are outlined in New York Vehicle and Traffic Law § 1193. The following are a summary of DWAI penalties as accessed in the State of New York:

  • Type of Offense: First offense misdemeanor DWI (Non-Aggravated)
    Custody Sentence: Up to 15 months in county detention center or jail
    Associated Fine: Between $500 and $1000
    IID Period: Yes
    DWI Alcohol Education Classes: Yes
    Licence Suspension: 6 months
  • Type of DWI: Second offense DWI (Class E felony)
    Custody Sentence: Up to 4 years in jail
    Associated Fine: Not less than $1000 and not more than $5000
    IID: Mandatory
    DWI Alcohol Education Classes: Yes
  • Type of DWI: Aggravated Driving While Intoxicated
    IST Offense:
    Custody Sentence: Up to 1 year in county jail
    Associated Fine: Not less than $390 and not more than $1000
    IID Period: 2 years. Although IID is not mandatory for DWI misdemeanor 3rd offenders, failure to get it will typically attract 3 years license suspension
    DWI Alcohol Education Classes: Yes. 30 months
  • Type of DWI: Misdemeanor DWI with injury
    Custody Sentence: Between 5 days and 1 year in county jail
    Custody Sentence: $390 to $5,000 in addition to compensation to injured victims
    IID Period: Six months but not mandatory. (Alternative: 1 year license suspension)
    DWI Alcohol Education Classes: Yes. 3, 18, or 30 months
  • Type of DWI: Felony DWI with injury (first offense)
    Custody Sentence: Between 16 months and 16 years in state prison
    Custody Sentence: $1015 to $5,000 in addition to compensation to injured victims
    Mandatory IID Period: 1 year
    DWI Alcohol Education Classes: Yes. 18 or 30 months
  • Type of DWI: Felony DWI (without injury)
    Custody Sentence: 16 months, 2 years or 3 years in New York state prison
    Custody Sentence: $390 to $1,000
    Mandatory IID Period: Not applicable. License suspension for up to 5 years
    DWI Alcohol Education Classes: Yes. 18 or 30 months

How Long Does a DWI Stay on Your Record in New York?

In New York, a DWI conviction stays on a person's driving records for 10 years and stays on a criminal record permanently. In the practical sense, driving records are only available to law enforcement officers, relevant DMV employees, as well as to car insurance companies. The sole purpose of keeping these records is to review driver license suspensions and to determine the charges for subsequent DWI offenses. Insurance companies also use these records to increase car insurance premiums, depending on the number of points on a DWI driver's records.

Most DWAI/DWI arrests and convictions are classified as misdemeanors. Even then, a New York DWI may be charged with a felony based on whether or not there was personal injury and if it is the second offense DWI within a period of 10 years. While these alcohol intoxication criminal records show up on criminal background checks, they may be sealed as stated in CPL 160.55. Be aware that New York, sealing of a DWI record does not affect the Department of Motor Vehicles Records. Criteria that must be met before a person can file a petition for a dismissal of a DWI record include:

  • Completing all sentence requirements including payment of all fines and attending all mandatory DWI classes and probation terms
  • The sentence was served in a county jail and not a state prison
  • The ex-offender is not currently facing any other criminal charges

Records that are considered public may be accessible from some third-party websites. These websites often make searching simpler, as they are not limited by geographic location, and search engines on these sites may help when starting a search for a specific or multiple records. To begin using such a search engine on a third-party or government website, interested parties usually must provide:

  • The name of the person involved in the record, unless said person is a juvenile
  • The location or assumed location of the record or person involved. This includes information such as the city, county, or state that person resides in or was accused in.

Third-party sites are independent from government sources, and are not sponsored by these government agencies. Because of this, record availability on third-party sites may vary.

How do I Find DWI Checkpoints in New York?

Yes, DWI checkpoints or sobriety checkpoints are legal in New York. Drivers are required to stop at DWI checkpoints available in many parts of the state. The Supreme Court of New York has ruled these checkpoints as administrative inspections similar to airport screenings. Hence, they are not considered an infringement to the Fourth Amendment Rule that an officer of the law must have a reasonable suspicion to search people and examine them for DWI. During DWI checks, law enforcement officers inspect drivers' licenses and registrations and also engage in brief discussion to look for signs of alcohol intake, drugs, slurred speech, and other signs of physical impairment. If positive, the officer may then conduct a chemical drunk driving investigation including:

  • New York DWI field sobriety tests (FSTs)
  • Preliminary Alcohol Screening test (PAS) breath test
  • DWI mouth swab test for drugs in system
  • Swab test for DWI of marijuana

While DWI checkpoints are legal in New York, failure of the police to adhere to strict procedures may render a particular DWI checkpoint unconstitutional. To determine whether or not a sobriety checkpoints are legal, the New York Supreme Court outlined eight guidelines including:

  • Supervising officers must determine when, where, and how a checkpoint will operate
  • Criteria for stopping vehicles must be neutral
  • The checkpoint must be located in places where there are a high incidence of accidents and arrests due to DWI
  • The checkpoint must be safely located
  • Supervising officers are required to reflect "good judgement" in setting the time of the day and the duration of a checkpoint
  • Drivers should be able to clearly see that there is an official DWI stop ahead of them
  • Drivers should be detained only long enough for questioning and inspection. Those with no signs of impairment should not be delayed further
  • DWI checkpoints should be publicized in advance. Note that the absence of prior public advertising does not render a DWI checkpoint unconstitutional

Interested persons can find notice of these checkpoints on the news, local newspapers, official websites of law enforcement agencies, and adverts. Provided it is safe to do so, drivers are within their rights to turn around or take a different route to avoid DWI checkpoints.

What is an Aggravated DWI in New York?

In New York, an aggravated DWI is a felony charge with specific "aggravating influences" present at the time of an arrest. While most drunk-driving offenses in the state are discharged as misdemeanors, certain factors may lead to more serious charges, punishments, and penalties. Essentially, aggravated DWI includes standard DWI elements and any one of the following:

  • The DWI caused injury or death
  • The DWI is the offender's fourth offense
  • The defendant has a prior felony DWI conviction
  • The defendant was caught driving under the influence and has a minor under the age of 14 in the vehicle. Such a defendant will likely face a Penal Law 260.10 child endangerment charge plus the DWI

What Happens When You Get a DWI in New York?

When someone is arrested and charged for a DWI, they are expected to defend against the criminal charges brought by the prosecutors and also against the DMV's administrative penalties. If guilt is established —through a plea deal or jury trial— the associated penalties may depend on the severity, the defendant's cooperation, as well as on any aggravating circumstances. It is recommended to seek the services of a skilled traffic lawyer to provide guidance on the way forward. Possible jail time ranges from a few days to many years in custody. Also, the DMV may suspend the defendant's license for a range of six months for first offenders that are noncommercial drivers, older than 21 years, and agreed to chemical testing all the way up to 18 months revocation of license for commercial drivers and repeat offenders. Those whose licenses were suspended for not more than 30 days can also apply for a restricted license after completing the offender alcohol program, provide a proof of insurance (SR22), and pay a license reinstatement fee to the Department of Motor Vehicles.

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