DWI Legal Situations & NYS Laws

If you are charged with a drug or alcohol-related offense—whether in a car, motorcycle, ATV, or other motor vehicle—the impact can be serious and far reaching. You will need to understand many complicated issues and you’ll want to have a trusted partner supporting you through this difficult time. LaMarche Safranko Law PLLC can help. We are experienced New York DWI lawyers that know how to represent you. We’ll bring our nationally recognized reputation, legal experience, and client compassion to your case as we guide you through the process and ensure your rights are protected.

Commonly asked DWI-related questions and answers

Please note that while the information below may address some scenarios, New York state DWI laws are complex and each case has its own unique circumstances. Your specific facts should be thoroughly reviewed in detail with a qualified attorney familiar with DWI in New York.

What are the differences between DWI, DWAI, and DUI in New York?

DWI (Driving While Intoxicated): is charged when a person operating a motor vehicle has a blood alcohol content (BAC) of .08 or greater. Note, DWI can also be charged if BAC is .04 and the operator is driving a commercial motor vehicle, or a BAC of .02 and the operator is under 21. In New York, the first DWI conviction received is a misdemeanor, which is a criminal offense.

Aggravated DWI: is charged when a person operating a motor vehicle has a BAC of .18 or greater.

Aggravated DWI/Child in Vehicle (aka Leandra’s Law): is charged when a person operating a motor vehicle has a BAC of .08 or greater and a child under the age of 16 in the vehicle.

DWAI (Driving While Ability Impaired): is charged when a person operating a motor vehicle has a BAC less than .08. A DWAI is a violation, which is not a criminal offense.

DUI (Driving Under the Influence): is used in some states instead of DWI. DUI in New York is typically referenced using DWI, DWAI, or Aggravated DWI terms to classify such offenses.

I’ve been charged with a DWI in New York, now what do I do?

Contact a lawyer immediately. It is important to meet with an attorney while the arrest is still fresh in your mind to ensure all the important facts—from the initial traffic stop, to any on-scene tests and statements, to actual arrest—are documented. At LaMarche Safranko, we are experienced New York DWI lawyers, so let us put our skill to work for you and help protect all your rights.

What if I refused the breath test?

A refusal to take a breath test will result in the immediate suspension of your license at your first court appearance. However, within 15 days you are entitled to a Department of Motor Vehicle (DMV) administrative refusal hearing at which time a judge will hear evidence and testimony and make a decision regarding license revocation. At a refusal hearing, the arresting officers will testify and the administrative law judge will determine the following:

  1. Did the police have reasonable grounds to believe that you were driving while under the influence of alcohol?
  2. Did the police make a lawful arrest?
  3. Were you given clear and sufficient warning that your refusal to submit to a chemical test would result in the immediate suspension and subsequent revocation of your license?
  4. Did you actually refuse to take the test?

If the Judge answers yes to all, your license will be revoked and you will also be required to pay a fine.

Could I go to jail if I’m convicted of a DWI?

Yes. A person convicted of a first-time DWI or Aggravated DWI faces up to one year in jail or three years’ probation. A DWAI conviction could result in up to 15 days in jail.

What happens to my license if I’m charged with a DWI?

At the first court appearance, a judge is required under the Prompt Suspension Law to take your driver’s license upon a finding that the charging documents are legally sufficient and a certified breath test shows that your BAC was .08 or higher. If you took the breath test you are entitled to a hearing in court regarding whether a judge can take your driver’s license. If, through your attorney, you can offer any evidence that tends to rebut the court’s initial findings, you may be able to keep your driver’s license throughout the duration of your case.

If you are charged with a DWAI, your license will not be taken at the first court appearance.

If the court takes your license at the time of the arraignment, you may be entitled to request a “hardship license” if there are no alternate means of transportation to and from your employment or medical appointments. Your attorney should make an application on your behalf to ensure you can still drive throughout the duration of your case.

What happens to my license if I’m convicted of a DWI?

If you are convicted of a first-time DWI offense, your license will be revoked for minimum of six months. To obtain a New York state license after your revocation period, you will have to complete the process of applying for a brand-new license; you will not be able to simply reinstate your previous license. In addition, if your conviction includes a probationary period, your probation officer, not DMV, has final discretion as to whether you will be allowed to apply for a new license upon successful completion of your requirements.

What happens to my license if I’m convicted of an Aggravated DWI?

For a first-time Aggravated DWI, your license will be revoked for a minimum of one year.

What happens to my license if I’m convicted of DWAI?

If you are convicted of a first-time DWAI offense, your license is suspended for 90 days.

What if I am under 21 and am convicted of DWI or DWAI?

If you are under age 21 and are convicted of a first time DWI or DWAI offense, your license will be revoked for one year.

Even though my license is suspended or revoked can I still drive?

If you have not had any prior drinking and driving-related convictions within the past five years, you may be eligible for a conditional license through participation in the DMV Impaired Driver Program. This is a seven-week course consisting of weekly two-hour classes, with a minimum 15 hours of instruction in drinking-driving related safety information. A conditional license allows you to drive to and from work and/or school, to medical appointments, any DMV-related activities, and during a three-hour period on non-work days.

Note: If you are a repeat offender, the consequences for a DWI or DWAI conviction will be more severe.

I wasn’t drinking, but had prescription medication in my system. Can I still be charged with DWI?

Yes. Just because your medication was prescribed does not mean you couldn’t be charged and convicted of a driving-under-the-influence offense. The charge is referred to as DWAI/drugs, and the penalties are the same as those for DWI in New York state, except for not being required to install an ignition interlock device.

If I get convicted of a DWI offense will I have to install an ignition interlock device on my vehicle(s)?

Yes. You will be required to install an ignition interlock device on any vehicle that you own or operate. A DWAI, or DWAI/drug conviction does not require an ignition interlock device.

How much will a DWI in New York cost me?

A lot. For a first-time DWAI offense, you’re looking at up to $500 in court fines plus another $250 in surcharges. For first-time DWI, it’s up to $1,000 in fines, with another $370 in surcharges. Aggravated DWI court fines can be up to $2,500 with nearly $400 in surcharges, and Aggravated DWI/Leandra’s Law will cost up to $5,000 in fines plus almost $500 in surcharges. In addition, there is a mandatory DMV Driver Assessment Penalty—regardless of the type of conviction—of $750. If you are eligible to participate in the Impaired Driving Program, it will cost $300, plus other related fees.

If you were convicted of DWI, Aggravated DWI or Aggravated DWI/Leandra’s Law, you must also pay approximately $100 to install the ignition interlock device plus approximately $100/month for maintenance, which is typically required for a minimum of one year, although application for early removal can be made if you have no prior New York DWI convictions.

Of course, these figures don’t take into account legal fees, any lost wages, increased insurance premiums, additional mandatory alcohol treatment if required, or other ancillary expenses.

How long will a DWI conviction remain on my record?

Forever. Whether you were convicted of a DWAI, DWI, or Aggravated DWI, the convictions remain on your criminal history report forever. You may wish to obtain a lifetime abstract from DMV, which contains all convictions for the duration of your driving history in New York state.

Does my New York DWI conviction impact my ability to drive in, or get a license in, another state?

Yes. If you are convicted of DWAI, DWI, or Aggravated DWI in New York, whatever consequences are imposed on your ability to drive would exist in any other state. So, if you are issued a conditional license in New York, those conditions are applicable if you are driving in any other state.

Once you have successfully fulfilled your obligations regarding your DWI in New York state, you should be able to apply for a license in another state. However, that state has the discretion to approve or deny your license application. Many states have reciprocity and recognize convictions in other states. So, if you haven’t yet completed the obligations to obtain a clear New York license, you could generally not apply yet for one in another state.

I was arrested for boating while drinking. What happens now?

The penalties are similar to those for DWI. If you were operating a boat with a BAC of .08 or higher, you may be charged with boating while intoxicated, which is a misdemeanor criminal offense. You could be subject to up to one year in jail, fined up to $1,000, and have your privilege to operate a vessel suspended for one year.

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LaMarche Safranko Law PLLC

LaMarche Safranko Law PLLC