DWI Laws in New York

SUMMARY OF NEW YORK IMPAIRED/ INTOXICATED DRIVING STATUTES

COMMON ACRONYM(S) USED TO DESCRIBE "DRUNK DRIVING":

DWAI/DWI

PROHIBITED VEHICULAR ACTIVITY:

COVERED VEHICLES OR DEVICES:

COVERED LOCATIONS:

IMPAIRED DRIVING OFFENSES:

• Driving, etc., while ability impaired by alcohol.
• Driving, etc., with an alcohol concentration of .08 or more (per se offense), in first, second, third, and fourth offenses.
• Driving, etc., while intoxicated by alcohol in first, second, third and fourth offenses.
• Driving, etc., while ability impaired by drugs.
• Driving, etc., while ability impaired by drugs and alcohol.
• Driving a commercial vehicle with a blood alcohol concentration of .04 or more.
• Persons under 21 who operate a motor vehicle with a blood alcohol concentration of .02 or more.

DEGREE OF IMPAIRMENT REQUIRED:

For DWAI – When the voluntary consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which a person is expected to possess, in order to operate a vehicle in a reasonable and prudent manner.

Cont.

For DWI – The driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.

For DWAI Drugs – No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug (as defined in the statute.)

PENALTIES FOR IMPAIRED/ INTOXICATED DRIVING OFFENSES:

The penalties imposed for offenders with multiple alcohol – or drug-related driving convictions or incidents drastically changed on September 25, 2012. It is critical to consult with an attorney in New York as the length of time without a driver's license may be substantially longer than the statutory revocation period (and can result in a lifetime denial).

DWAI – First Offense (Traffic Infraction):

• A fine of between $300 and $500 (plus a surcharge of $255 – $260), up to 15 days in jail, or both;
• Suspension of driver's license for 90 days (unless you are under 21 or possess a Commercial Driver's License ("CDL"));
• A driver responsibility assessment ("DRA") of $250 a year for 3 years; and
• Discretionary imposition of a victim impact panel.

In addition, the defendant will most likely be eligible for the Impaired Driver Program ("IDP") and a conditional license.

DWAI – Second Offense (within 5 years) (traffic infraction):

• A fine of between $500 and $750 (plus a surcharge of $255 – $260), up to 30 days in jail, or both;
• At least 6-month revocation of driver's license (the DMV will require proof of an alcohol evaluation and/or rehabilitation);
• DRA of $250 a year for 3 years; and
• Discretionary imposition of a victim impact panel.

In addition, the defendant will not be eligible for the IDP or a conditional license.

DWAI – Third and Subsequent Offenses (within 10 years) – person can be charged with a misdemeanor

• A fine of between $750 and $1500 (plus surcharge of $395 – $400), up to 180 days in jail, or both;
• 2 or 3 years' probation;
• At least 6-month license revocation (However, a person who has 3 alcohol-related convictions/incidents within the past 25 years and whose driver's license is revoked for the most recent offense (a) will not be eligible for a conditional license, and (b) will be revoked for at least 5½ years. This is followed by 5 more years on a restricted license with an ignition interlock device. In addition, depending on the person's driving record, this conviction could result in a lifetime revocation) ;
• DRA of $250 a year for 3 years;
• Discretionary imposition of a victim impact panel; and
• Ignition Interlock Device ("IID") in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

DWI – First Offense (misdemeanor)

• A fine of between $500 and $1000 (plus surcharge of $395 – $400), up to 1 year in jail, or both;
• 2 or 3 years' probation;
• Mandatory revocation of driver's license for at least 6 months;
• DRA of $250 a year for 3 years.
• Discretionary imposition of a victim impact panel; and
• IID in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

In addition, the defendant may be eligible for a conditional license.

DWI – Second Offense (within 10 years of a prior DWI or DWAI drugs) – person can be charged with a class E felony. But even if charged as a misdemeanor – the following apply:

• A fine of between $500 and $1000 (plus $395 – $400 surcharge), up to 1 year in jail, or both;
• 2 or 3 years' probation;
• Mandatory revocation of driver's license for at least 1 year (18 months where the prior conviction was for aggravated DWI);
• DRA of $250 a year for 3 years;
• Discretionary imposition of a victim impact panel; and
• IID in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

Aggravated DWI (misdemeanor)

• A fine of between $1,000 and $2,500 (plus surcharge of $395 – $400), up to 1 year in jail, or both;
• 2 or 3 years' probation;
• Mandatory revocation of driver's license for at least 1 year;
• DRA of $250 a year for 3 years.
• Discretionary imposition of a victim impact panel; and
• IID in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

Felony DWI (2nd DWI or DWAI Drugs within 10 years) – a class E felony

• A fine of between $1,000 and $5,000 (plus surcharge of $520), up to 4 years in state prison, or both;
• 3, 4, or 5 years' probation;
• Mandatory revocation of driver's license for at least 1 year;
• DRA of $250 a year for 3 years.
• Discretionary imposition of a victim impact panel; and
• IID in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

If prior conviction is within 5 years, a term of imprisonment of 5 days or 30 days of community service will be imposed.

Vince's Law (VTL 1193(1)(c)(ii-a), provides that, effective November 1, 2014, a defendant who is charged with DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence after having been convicted of a violation of VTL 1192(2), (2-a), (3), (4), or a (4-a) (or Vehicular Assault in the 1st or 2nd degree, Vehicular Manslaughter in the 1st or 2nd degree, Aggravated Vehicular Assault or Aggravated Vehicular Homicide) 3 or more times within the preceding 15 years can be charged with a class D felony.

DWAI Drugs – (misdemeanor):

• A fine of between $500 and $10500 (plus surcharge of $395 – $400), up to 1 year in jail, or both;
• 2 or 3 years' probation;
• Mandatory revocation of driver's license for at least 6 months;
• DRA of $250 a year for 3 years; and
• Discretionary imposition of a victim impact panel.

In addition, the defendant will not be eligible for a conditional license, but may be eligible for a restricted use license.

DWAI combined influence of drugs or of alcohol and any drug or drugs ("DWAI combined influence") – (misdemeanor):

• A fine of between $500 and $10500 (plus surcharge of $395 – $400), up to 1 year in jail, or both;
• 2 or 3 years' probation;
• Mandatory revocation of driver's license for at least 6 months;
• DRA of $250 a year for 3 years; and
• Discretionary imposition of a victim impact panel.

In addition, the defendant may be eligible for a conditional license.

STATUTORY DRUNK DRIVING PRESUMPTIONS:

IMPLIED CONSENT LAWS:

Tests permitted: Blood, breath, urine, and saliva.- (consent is implied for one or more of those tests.) Type of advisement required: Administrative revocation of the driver's license; Refusal can be introduced as evidence against the accused in the criminal trial.

Administrative penalties for refusal (1st offense): One year license revocation and $500 civil penalty fee; 2nd Refusal within 5 years – 18 month license revocation and $750 civil penalty fee; Refusal when motorist possesses a commercial driver's license (1st offense) – 18 month license revocation and a $500 civil penalty fee. In addition, the person will be required to pay the DRA.

Admissibility of Refusal: Admissible

Administrative Per Se Law: License suspended pending prosecution with .08 BAC or more. Defendant, at arraignment, may request a Pringle hearing to challenge the license suspension.

CHEMICAL TEST LAWS:

General provisions: Evidence of the amount of alcohol in the person's blood at the time in question, as shown by chemical analysis of a sample of the person's breath, blood, urine, or saliva, is admissible on the issue of whether the person had an alcohol concentration in the range specified – provided the sample was taken within 2 hours after the event to be proved.

BLOOD-DRAWING STATUTE:

INDEPENDENT TEST STATUTE:

The person tested shall be permitted to choose a physician to administer a chemical test in addition to the one administered at the direction of a police officer. The statute however is silent on law enforcement's duty to facilitate this additional chemical test – or to notify the defendant of his right to such a test. The 2 hour rule does not apply to the additional test. And it is improper for the prosecution to suggest that the defendant could have obtained an additional chemical test.Blood may be withdrawn from the person arrested for a violation of this section only by a physician, a registered professional nurse, or a registered physician's assistant. Or, under the supervision and at the direction of a physician: a medical laboratory technician or medical technologist as classified by civil service; Also, a phlebotomist; an advanced emergency medical technician as certified by the Department of Health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under the Public Health Law.Evidence that there was a BAC of .05 or less, is prima facie evidence that the defendant was not impaired; Evidence that there was a BAC of .06 or more, but less than .07, is relevant – but not prima facie evidence – that the defendant was impaired; Evidence that there was a BAC of .07 or more, but less than .08, is presumptive evidence that the defendant was not intoxicated. But it is prima facie evidnce that the defendant was impaired; A BAC of .08 would be evidence that the defendant is in violation of the per se DWI statute.Cont. Upon public highways, private roads open to motor vehicle traffic and any other parking lot. A "motor vehicle" is every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except a) electrically driven mobility assistance devices operated or driven by a person with a disability (b) vehicles which run upon rails or tracks (c) snowmobiles (However, a person operating a snowmobile can be charged with Snowmobiling While Intoxicated, Snowmobiling While Ability Impaired, or Snowmobiling While Ability Impaired by Drugs – under the Parks, Recreation & Historic Preservation Law.) To operate a motor vehicle means to drive it. Also – mere sitting behind the wheel, engine running, with the present intention of placing the vehicle in motion. DWI (Driving While Intoxicated), DWAI (Driving While Ability Impaired), DWAI Drugs.

New York State DMV: http://www.nydmv.state.ny.us/

Department of Health: http://www.health.state.ny.us/

Department of Probation and Correctional Alternatives: http://dpca.state.ny.us/