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New York DWI Penalties

Last Updated on Monday, 21 September 2020 20:03

DWAI – First Offense

A person is guilty of DWAI if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of alcohol. DWAI is a traffic infraction — not a crime. By contrast, DWI, DWAI Drugs and DWAI Combined Influence are crimes.

It is common for a person charged with DWI for the first time to receive a plea bargain offer reducing the charge to DWAI. However, while such an offer is common, it is by no means assured. For example, many District Attorney’s Offices will not offer a reduction to DWAI if the person had a BAC over a certain level (e.g., .13%), if the person refused to take a Breathalyzer test or a blood test, if there was an accident, if there was a child in the car, if the person was obnoxious to the police, if the person resisted arrest, etc.

If you are convicted of DWAI as a first offense, you face the following potential consequences:

  1. A fine of between $300 and $500, up to 15 days in jail, or both;
  2. Suspension of your driver’s license for 90 days (unless you are under 21 or possess a Commercial Driver’s License (“CDL”));
  3. A surcharge of $255 ( $260 if the case is in either a Town or a Village Court);
  4. A driver responsibility assessment of $250 a year for 3 years; and
  5. A requirement that you attend a Victim Impact Panel.

You will most likely be eligible for the Impaired Driver Program and a conditional license.

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DWAI – Second Offense

If you are convicted of DWAI after having been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 5 years (the 5 years runs from the date of the prior conviction to the date of the present charge), you face the following potential consequences:

  1. A fine of between $500 and $750, up to 30 days in jail, or both;
  2. Revocation of your driver’s license for at least 6 months. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  3. Discretionary revocation of your registration for at least 6 months;
  4. A surcharge of $255 ( $260 if the case is in either a Town or a Village Court)’
  5. A driver responsibility assessment of $250 a year for 3 years; and
  6. A requirement that you attend a Victim Impact Panel.

You will not be eligible for a conditional license.

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DWAI – Third and Subsequent Offenses

If you are charged with DWAI after having been convicted of 2 or more violations of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 10 years, you can be charged with misdemeanor DWAI, in which case you face the following potential consequences:

  1. A fine of between $750 and $1,500, up to 180 days in jail, or both; A period of probation of 3 years;
  2. Mandatory revocation of your driver’s license for at least 6 months. According to the DMV regulations, you will be revoked for at least 5-1/2 years (followed by 5 more years on a conditional license with an ignition interlock device requirement), and possibly for life, denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock device. See the section titled, Important Recent Changes to New York’s DWI Laws, below;
  3. DMV will require evidence of alcohol rehabilitation before it will ever relicense you;
  4. Discretionary revocation of your registration for at least 6 months;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years;
  7. A requirement that you attend a Victim Impact Panel and a requirement that you install and maintain a functioning ignition interlock device 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.

You may be eligible for the Impaired Driver Program, but will not be eligible for a conditional license.

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DWI – First Offense

DWI is a misdemeanor, conviction of which will result in a lifetime criminal record. If you are convicted of DWI as a first offense, you face the following potential consequences:

  1. A fine of between $500 and $1,000, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 6 months;
  4. Discretionary revocation of your registration for at least 6 months;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years;
  7. A requirement that you attend a Victim Impact Panel and a requirement that you install and maintain a functioning ignition interlock device 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.

You may be eligible for the Impaired Driver Program and a conditional license.

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DWI — Second Offense

If you are charged with DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony DWI. Nonetheless, if you are allowed to plead to misdemeanor DWI, you face the following potential consequences:

  1. A fine of between $500 and $1,000, up to 1 year in jail, or both; A period of probation of 3 years;
  2. Revocation of your driver’s license for at least 1 year (at least 18 months where the prior conviction was for Aggravated DWI). According to the new DMV regulations, you will be denied full licensing until the expiration of the minimum revocation period. See the section titled, Important Recent Changes to New York’s DWI Laws, below;
  3. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  4. Discretionary revocation of your registration for at least 1 year;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years;
  7. A requirement that you attend a Victim Impact Panel and a requirement that you install and maintain a functioning ignition interlock device 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 you are convicted of misdemeanor DWI after having been convicted of misdemeanor DWI within the past 5 years, you are subject to the following additional mandatory penalties:

  1. 5 days in jail or 30 days of community service;
  2. You must install an ignition interlock device in each motor vehicle you own or operate during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court; and you must receive an alcohol or substance abuse assessment, which may result in the imposition of treatment as a condition of a sentence of probation or conditional discharge.

If the new DWI charge is more than 5 years from your prior conviction, you may be eligible for a conditional license.

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Misdemeanor Aggravated DWI – First Offense

Aggravated DWI is a misdemeanor. If you are convicted of Aggravated DWI as a first offense, you face the following potential consequences:

  1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver’s license for at least 1 year;
  4. Discretionary revocation of your registration for at least 1 year;
  5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  6. A driver responsibility assessment of $250 a year for 3 years;
  7. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device 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.

You may be eligible for the Impaired Driver Program and a conditional license.
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Misdemeanor Aggravated DWI – Second Offense

If you are charged with Aggravated DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony Aggravated DWI. Nonetheless, if you are not prosecuted on the felony, but are allowed to plead to misdemeanor Aggravated DWI, you face the following consequences:

  1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both; A period of probation of 3 years;
  2. Revocation of your driver’s license for at least 18 months. According to the new DMV regulations, you will be denied full licensing until the expiration of the minimum revocation period. See the section titled, Important Recent Changes to New York’s DWI Laws, below;
  3. Discretionary revocation of your registration for at least 18 months;
  4. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);
  5. A driver responsibility assessment of $250 a year for 3 years;
  6. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device 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.

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DWAI Drugs

Like DWI, DWAI Drugs is a crime, conviction of which will result in a lifetime criminal record. It is critical to note that the standard of proof for DWAI Drugs is the same as that for DWAI Alcohol (that is, a person is guilty of DWAI Drugs if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of certain drugs). In other words, DWAI Drugs is the same level offense as DWI, but you only need to be impaired — not intoxicated — to be convicted of this offense.

The consequences of DWAI Drugs are virtually identical to those of DWI, with a critical exception. Due to a glitch in the law, if you are convicted of DWAI Drugs you are not eligible for a conditional license, but you may be eligible for a restricted use license (which is very similar to a conditional license). In addition, the ignition interlock device requirement is not applicable.

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DWAI Combined Influence

The crime of Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs is self-explanatory. The consequences of a conviction of this offense are virtually identical to those of DWI. However, the ignition interlock device requirement is not applicable.

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Felony Offenses of DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence

If you are charged with DWI , Aggravated DWI, DWAI Drugs or DWAI Combined Influence after having been convicted of one of those offenses (or Vehicular Assault or Vehicular Manslaughter) within the past 10 years, you can be charged with a class E felony, and face the following potential consequences:

  1. A fine of between $1,000 and $5,000, up to 4 years in state prison, or both;
  2. A period of probation of 5 years;
  3. Revocation of your driver’s license for at least 1 year. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;
  4. Note that while DMV will revoke your license for at least 1 year, the Court can also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that this condition of probation has been removed;
  5. Discretionary revocation of your registration for at least 1 year;
  6. A surcharge of $520;
  7. A driver responsibility assessment of $250 a year for 3 years;
  8. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device 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 your predicate conviction was within the past 5 years, you are subject to the following additional mandatory penalties:

  1. 5 days in jail or 30 days of community service;
  2. You must install an ignition interlock device in each motor vehicle you own or operatee; during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court; and you must receive an alcohol or substance abuse assessment, which may result in the imposition of treatment as a condition of a sentence of probation or conditional discharge.

If the new charge is more than 5 years from your prior conviction, you may be eligible for a conditional license. However, even if you are eligible to drive, the Court may prohibit you from doing so as a condition of probation.

If you are charged with DWI , Aggravated DWI, DWAI Drugs or DWAI Combined Influence after having been convicted of one of those offenses (or Vehicular Assault in the 1st or 2nd degree or Vehicular Manslaughter) TWICE within the past 10 years, you can be charged with a class D felony, and face the following potential consequences:

  1. A fine of between $2,000 and $10,000, up to 7 years in state prison, or both;
  2. A period of probation of 5 years;
  3. Revocation of your driver’s license for at least 18 months. In addition, DMV will require evidence of alcohol rehabilitation before it will ever relicense you;
  4. Note that while DMV will revoke your license for at least 18 months, the Court can also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that this condition of probation has been removed;
  5. Discretionary revocation of your registration for at least 1 year;
  6. A surcharge of $520;
  7. A driver responsibility assessment of $250 a year for 3 years;
  8. A requirement that you attend a Victim Impact Panel; and a requirement that you install and maintain a functioning ignition interlock device 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 your predicate DWI convictions were within the past 5 years, you are subject to the following additional mandatory penalties:

  1. 10 days in jail or 60 days of community service;
  2. You must install an ignition interlock device in each motor vehicle you own or operate; during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court;
  3. You must receive an alcohol or substance abuse assessment, which may result in the imposition of treatment as a condition of a sentence of probation or conditional discharge.

Realistically, however, if you find yourself in this situation you will likely be going to jail or prison for substantially longer than this required minimum period.

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Important Recent Changes to New York’s DWI Laws

On September 25, 2012, the Department of Motor Vehicles promulgated “proposed” regulations that dramatically increase the sanctions for drivers with repeat alcohol- and drug-related offenses. It is important to note that these regulations do not affect revocation periods that are imposed by statute or by other regulation. These are waiting periods that are applied to applications for relicensure, and are in addition to any revocation period.

These regulations are not only applicable to people revoked for alcohol- and drug-related driving convictions, they are also applicable to people who are not, otherwise, revoked, but have been convicted of a high-point driving violation (defined as bearing 5 or more points).

Lifetime denial of relicensure

Motorists that are defined as “dangerous repeat alcohol or drug offenders” are subject to lifetime denial of relicensure. This means:

  1. Any driver who, within his or her lifetime, has five or more alcohol- or drug-related driving convictions or incidents in any combination; or
  2. Any driver who, within the 25 years preceding the date of commission of a high-point driving violation, has three or four alcohol- or drug-related driving convictions or incidents in any combination and, in addition, has one or more serious driving offenses within the 25 years preceding the date of the commission of a high-point driving violation.

5-year waiting period for third offense

In addition, there is a 5-year waiting period on any application for relicensure where:

  1. The person has 3 or 4 alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense. (Note: Since this says the motorist has to have 3 or 4 alcohol- or drug-related driving convictions in existence prior to the date of the revocable offense under consideration, it would appear that you would have to be on your fourth such offense at the time of your application. DMV Counsel’s Office advises that this is not the case, and that their interpretation is that this is applicable to anyone who has two prior convictions and is applying for relicensure from the revocation arising from their third conviction;
  2. The person does not have any serious driving offenses within the 25 years preceding the date of the revocable offense; and
  3. The person is currently revoked for an alcohol- or drug-related driving conviction or incident.

Upon expiration of the 5-year waiting period, the Commissioner may approve the application for relicensure, but the Commissioner must impose the “A2” restriction on such person’s license for a period of 5 years and require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for this additional 5-year period. If that motorist, being a licensee with an A2 restriction, is later revoked for a subsequent alcohol- or drug-related driving conviction or incident; that motorist shall thereafter be ineligible for any kind of license to operate a motor vehicle, i.e., lifetime revocation.

2-year waiting period

Where the motorist is revoked for a non-alcohol- or drug-related conviction; and has 3 or 4 alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the offense for which they were revoked, they will face a 2-year denial of relicensure in addition to the statutory period of revocation. The distinction between this 2-year period and the 5-year preceding period turns on whether the offense that they are presently revoked for resulted from an alcohol- or drug-related driving conviction or incident. Where it does not, then the 2-year waiting period is applicable.

In this case, the ignition interlock device is not required since the revocation was not for an alcohol- or drug-related driving conviction or incident. Akin to the 5-year waiting period, however, the 2-year waiting period is followed by 2 years of a restricted license pursuant to the A2 restriction. Similar to the 5-year provision, a subsequent revocation for an alcohol- or drug-related driving offense while under the A2 restriction will result in a lifetime ineligibility.

Second conviction within 25 years mandates standard revocation

For second offenders, the rules have changed in one important respect. The person has to serve the full revocation period before they can have full privileges restored. Thus, completion of the Impaired Driver Program will not terminate the outstanding revocation. The person is in effect treated in the same manner as a person whose license was revoked pursuant to a chemical test refusal, or an underage offender.

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