Introduction to DWI

What is a DWI?

In New York, the Driving While Intoxicated statute contains 6 separate offenses:

The first offense is Driving While Ability Impaired (“DWAI”). This offense is committed where the driver has consumed alcohol to the extent that he “has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625 (1979). DWAI is a traffic infraction, not a crime. DWAI is an offense to which the more serious charge of Driving While Intoxicated is often reduced.

The second offense is Driving While Intoxicated; Per Se. This offense deals with operating a motor vehicle with a specific blood alcohol concentration (“BAC”). In New York, it is DWI per se to operate a motor vehicle with a BAC of .08% or more.

The third offense is Aggravated Driving While Intoxicated (“Aggravated DWI”). This offense is committed when a person (a) operates a motor vehicle with a BAC of .18% or more; or (b) operates a motor vehicle in violation of VTL §§ 1192(2), (3), (4), (4-a), with a child under the age of 16 in the vehicle.

The fourth offense is Driving While Intoxicated (“DWI”). You can be charged with DWI regardless of whether there is a chemical test result (for example, if you refused to submit to a chemical test). The legal standard for DWI is that “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”. People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625 (1979).

The fifth offense deals with operating a motor vehicle while impaired by drugs (“DWAI Drugs”). While DWAI Alcohol is a traffic infraction, DWAI Drugs is a crime. The legal standard for DWAI Drugs, however, is the same as that of DWAI Alcohol. Specifically, a person is guilty of DWAI Drugs when the driver has consumed certain drugs to the extent that he “has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625 (1979).

The final offense is Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs (“DWAI Combined Influence”). The standard for this self-explanatory offense is the same as for DWAI, only the impairment can be from a combination of certain drugs or of alcohol and a drug or drugs.

In addition to these basic offenses, New York has additional DWI provisions which apply to commercial motor vehicles. See our Commercial Driver’s License page.

As with any criminal charge, the State bears the burden of proving the charge against you. Because of an increased political and public intolerance towards those who drink and drive, however, defending a DWI charge has become more complicated, and the penalties upon conviction have become more severe.