New York State DWI Overview

Chemical Testing in New York to Determine BAC

By driving a vehicle in New York, an individual is deemed to have consented to take a chemical breath or blood test. Vehicle and Traffic Law § 1194(2)(a). This is known as an implied consent law. If a person refuses to take such a test, their license can be revoked by the DMV for at least 1 year and required to pay a fee to the DMV separate from any fines/surcharges payable to the court.

The purpose of a chemical breath or blood test is to determine how much alcohol in in a driver’s bloodstream. By determining the amount of alcohol in a driver’s bloodstream, law enforcement has additional evidence which can be used for additional charges and that will likely significantly strengthen the prosecution’s case in the courtroom. A driver is considered intoxicated in New York when his or her blood alcohol concentration (BAC) is 0.08 or higher.

Pre-Conviction Penalty

New York requires the driver’s license of a person charged with DWI to be suspended pending prosecution. This means that they will lose their license even before they are convicted. However, the judge who arraigns an individual charged with DWI may issue a hardship license. This type of driver’s license allows the offender certain driving privileges, such as driving to work, in case a hardship is present, such as being the family’s sole breadwinner. An accused may also be eligible for a conditional driver’s license from the DMV within 30 days after arraignment. This license will allow them to not just drive to and from work, but also for work purposes and during a 3 hour block for purpose of grocery shopping.

Common New York DWI Charges

Drivers under the age of 21 are subject to the zero tolerance law, which lowers the legal blood alcohol content level to 0.02%. Vehicle and Traffic Law § 1192-a.

A driver who was not intoxicated, but whose ability to operate a motor vehicle while their ability was impaired by the use of alcohol can be charged with Driving While Ability Impaired (DWAI) which is a non-criminal traffic infraction in the same class of offense as a speeding or parking ticket. Vehicle and Traffic Law § 1192(1).

Regardless of whether a chemical test was administered to determine an accused’s BAC, law enforcement can charge a common law DWI which alleges a person was intoxicated from the totality of the circumstances and is punishable with a fine up to $1,000.00 and up to a year in jail together with a minimum 6 month license revocation. Vehicle and Traffic Law § 1192(3).

Should a driver have an alleged BAC of 0.08 or greater, he or she will likely be charged with a misdemeanor “per se” DWI punishable with a fine up to $1,000.00 and/or a jail sentence of up to 1 year together with a minimum 6 month license revocation. Vehicle and Traffic Law § 1192(2).

If a BAC of 0.18 or greater is alleged, then a misdemeanor Aggravated DWI will likely be charged with a fine up to $2,500.00 and up to a year in jail together with a minimum 12 month license revocation. Vehicle and Traffic Law § 1192(2-a)(a).

If a person is intoxicated and has a child in the car under the age of 16, then they can be charged with a class “E” felony punishable with up to 4 years in prison. Vehicle and Traffic Law § 1192(2-a)(b).

If an accused has a misdemeanor or felony conviction within the last 10 years, then a class “E” felony punishable with up to 4 years in prison can be charged. Should an individual have 2 or more predicate convictions within the same 10 year period, a class “D” felony punishable with up to 7 years in prison can be charged.

Additional New York DWI Penalties

In addition to the DWI penalties outlined above, a New York DWI conviction involves a number of other consequences.

A DWI sentence will typically involve court mandated alcohol/controlled substance evaluations and completion of any recommended treatment recommendations.

The completion of a series of instructional classes at the DMV that educate drivers about the hazards associated with drunk driving and how to avoid similar situations in the future.

Attendance at a one-night “Victim Impact Panel” or “VIP,” which involves presentations by victims or family members of victims of DWI.

Installation of an ignition interlock device is required for all misdemeanor and felony DWI convictions in the State of New York. An ignition interlock device is a machine that is connected to a car’s ignition and checks the driver’s blood alcohol content level. The driver has to blow into the machine to start the car and, from time to time, while the car is running. If alcohol is detected, the car either does not start or turns itself off.

Charged with a DWI in New York?

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