DWI in New York – What You Should Know


What is DWI in NY? 

In the state of New York, driving under the influence of alcohol can get you a DWI (driving while intoxicated) charge. You will be charged with a DWI if you operate a vehicle with a blood alcohol concentration (BAC) of .08% or higher, regardless of whether or not your driving ability was impaired. In New York in particular, those charged with a DWI may face strong legal repercussions for their actions, and if you find yourself in this situation, you will need competent legal assistance by your side throughout the entire process. Mario Gallucci of The Gallucci Law Firm is a devoted criminal defense attorney based out of Staten Island, NY who will work to protect your rights and get you the justice you deserve. Learn more about DWI charges in New York and contact us today for a free consultation.

What is the Difference Between DWI and DUI in NY?

DUI stands for driving under the influence, which is very similar to DWI. In many states, these two terms are considered to be the same – being used interchangeably without fault. However, in New York, a DUI charge does not exist. Most of those in the New York legal system will simply refer to drunk driving cases as DWI cases. The terms used in the state of New York for cases that involve driving under the influence are as follows:

  • DWI: driving while intoxicated – BAC of .08% or higher
  • DWAI: driving while ability impaired – BAC between .05% and .07%
  • AGG-DWI: aggravated DWI – BAC of .18% or higher
  • DWAI-Drug: driving while ability impaired by drugs
  • DWAI-Combination: driving while ability impaired by a combination of drugs and alcohol


What is the Difference between DWI and DWAI in NY?

In New York, there are clear distinctions between types of impaired driving charges, including DWI versus DWAI. These two charges are used to categorize the different types of drunk driving offenses that can be committed in New York. The main difference between DWI and DWAI is the percent of alcohol in a person’s blood at the time they committed the offense. DWI, as noted above, is when someone is driving with a BAC of .08% or higher. DWAI, which stands for driving while ability impaired, is used when the BAC of a driver is under the legal limit of .08% but between .05 and 0.7%. This charge is typically less severe than a DWI, unless a combination of drugs and alcohol are found in the driver’s system. For example, despite the difference in labels for the charge, the penalties for a DWAI-Drug conviction are similar to the penalties for a DWI charge. Both DWI and DWAI charges should prompt you to consult with an experienced criminal defense attorney for proper guidance and representation.

New York’s Zero Tolerance Law

The state of New York has a Zero Tolerance Law, which has been in place since 1996 to address intoxicated drivers under the legal drinking age of 21. Those under the age of 21 who operate a motor vehicle with a BAC of .02 to .07% are subject to the Zero Tolerance Law. If you are pulled over by a police officer while driving under the influence of drugs or alcohol, you will be temporarily detained and administered a breathalyzer test – usually at the police station – to determine your BAC level. However, if you refuse the breathalyzer test, you run the risk of losing your license for at least one year. 

Testing a BAC of no less than .02% and no more than .07% is considered a violation of the Zero Tolerance Law, and requires you to appear for a hearing with the administrative law judge for the Department of Motor Vehicles (DMV). At this point, it is up to the judge’s discretion whether or not a violation occurred, based on evidence presented by the police officer. If the test shows that your BAC is above .05% but less than .08%, you may be charged with either a DWAI or a common DWI. If you are under the age of 21 at the time of a DWAI or DWI conviction, you may lose your license for at least one year. The offense will also remain on your driver’s record for three years or until you turn 21 (whichever is longer). The fact that the standard intoxication limit is lowered for those who are underage is meant to discourage those under 21 from driving while intoxicated or under the influence.

What are the Penalties and Fines for DWI in NY? How Long Will I Lose My License? 

In order to be charged with a DWI in New York, the police officer must prove your consumption of alcohol and the amount you consumed through the use of observation, field sobriety tests, or preliminary alcohol screening (PAS). Regardless of whether you are a first, second, or third time offender, you will be required to pay a $250 driver responsibility assessment each year for a period of three years. You will also be required to install and maintain a functioning ignition interlock device (IID) on your vehicle during the term of probation or condition discharge. This device requires the driver to blow into a mouthpiece before operating the vehicle, which assesses the driver’s blood alcohol concentration and can prevent the engine from being started.

There are different penalties for DWI charges depending on your age, the substance related to impairment, and how many times you’ve committed the offense. The penalties are as follows:

  • First Offense: Misdemeanor
      1. A fine between $500 and $1,000
      2. Maximum jail sentence of 1 year
      3. Minimum 6-month driver’s license suspension
  • Second Offense: Within 10 years – Class E Felony
      1. A fine between $1,000 to $5,000
      2. Minimum 5-day jail sentence and up to four years
      3. Minimum 1-year driver’s license suspension
  • Third Offense: Within 10 years – Class D Felony
      1. A fine between $2,000 and $10,000
      2. Minimum 10-day jail sentence and up to 7 years
      3. Minimum 1-year driver’s license suspension


Is DWI a Felony in NY?

In New York, a first DWI offense is most often considered a misdemeanor. However, the crime can quickly escalate to a felony. A second DWI charge is considered a class E felony if committed within 10 years of your first offense. If you are found guilty of a third DWI charge within 10 years of your first offense, you will be subject to a class D felony. Felony penalties for a DWI charge can have a major impact on a person’s life. As mentioned above, they can include fines up to $10,000, up to 7 years in jail, and the possibility of the person’s license being permanently revoked. A felony DWI conviction in New York may also require the driver to complete a drug or alcohol addiction program.

Can DWI Be Reduced in NY?

In New York, a DWI charge can potentially be reduced to a DWAI. A DWI is considered to be a criminal charge, while a DWAI is only a violation and most likely will not hold any long-term negative consequences. Someone who is charged with a DWI for the first time has a much higher chance of a possible reduction than someone who has already been charged with one or more offenses in the past. In situations where there was a motor vehicle accident (particularly when an injury or fatality occurred) a reduction will not be given. If you would like to get your DWI reduced to a DWAI, ask your attorney if you are eligible for a plea bargain. If there are no aggravating factors associated with your case (such as a prior DWI charge or accident), you may be granted a plea bargain. This scenario involves the defendant pleading guilty to a lesser charge in exchange for the more severe charge being dropped. At The Gallucci Law Firm, we will do everything in our power to get your DWI reduced, so long as the circumstances allow for it. We will review all the facts associated with your case and determine the best strategy and course of action to protect your rights.

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

According to the Department of Motor Vehicles in the state of New York, an alcohol or drug-related conviction (DWI) will stay on your record for 15 years or longer following the date of conviction. A DWAI, slightly less severe than a common DWI, will stay on your record for 10 years from the date of conviction. If an additional serious violation occurred, such as a vehicular homicide, that violation may be displayed on the record permanently. The period of time a charge is displayed on your driving record is highly dependent on individual circumstances and severity of the charge.

How Much Does a DWI Attorney Cost? – DWI Defense in NY from The Gallucci Law Firm

We understand that being charged with a DWI, DWAI, or other criminal offense can be extremely confusing and stressful. We also understand that you may be concerned about the cost of the defense you need for your case. At The Gallucci Law Firm, we are passionate about protecting the rights of each client that works with us, by crafting a criminal defense strategy that is suited to their unique situation. Each case is different, and when you set up a consultation with us, we will review all the details of your scenario, including specific costs associated with the case. Mario Gallucci is one of the top defense attorneys in New York, having handled and won some of the largest and most difficult criminal cases in New York, New Jersey, and within the Federal Court system. He is dedicated to providing clients with the highest quality legal representation, helping them to avoid jail time and/or the loss of their license. After carefully reviewing your case, The Gallucci Law Firm will create a personalized criminal defense plan in order to produce the best possible outcome. If you or someone you love is facing a DWI or DWAI charge in New York, please don’t hesitate to contact us today to set up a consultation and discuss your legal options.



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