DUI / DWI FAQ

DUI / DWI PENALTIES

 

DUI / DWI FAQ

I've been charged with DWI, now what?

​The circumstances of each case are critical to properly advise anyone as to what to expect. I can guide you through the procedural

process and help at each step of the was to represent your best interests. For instance, if you have not already been brought before a

judge, you will be, this is called arraignment. Your charges will be read to you and at this time, the court will most likely suspend your

license while your case is still pending. However, what you may not know is that even though your license will be suspended, you may

request what is known as a "hardship license" to drive to school, work, etc. Further, there are times when suspension of your license is

not automatic but instead will be determined at an administrative hearing by a hearing judge at the DMV. This is the case when an

individual refuses to submit to the requested breath test at the time of arrest. If you did submit to the test, in order for the court to take

your license at arraignment, the court must have a certification of your breath test result.​

After you are arraigned, there is the possibility that your charges may be reduced through plea negotiations with the District Attorney,

or that certain issues in your case will require motions to be made in order to preserve your Constitutional rights and provide you are

treated fairly. If your case proceeds beyond plea negotiations, you may be entitled to hearings to determine issues which were

addressed in your motions. Ultimately, you will discuss with your attorney what the likely outcome of your case will be and whether you

should proceed to trial. If your case proceeds to trial, you will either be found guilty of the charges, guilty of a lesser offense, or not guilty.  . 

 

What are the penalties for a first time DWI conviction?

In New York, Driving While Intoxicated as a first offense is a Misdemeanor offense which will result in a criminal record. You will be

subjected to heavy fines, surcharges and the possibility of jail, probation or a conditional discharge. If you are convicted of DWI you

will be subject to the installation of a device called an "Ignition Interlock" for up to one year  at your own expense unless you have a

financial hardship which may allow you to have the costs paid for. Additionally, you will be required to attend a Victim Impact seminar

along with what is known as the "Imparied Driver Program." A first time conviction for DWI will result in your license being suspended

for six months. However, you will most likely be granted a conditional license for that period upon enrollment in the

Imparied Driving Program. Subsequent convictions for DWI may result in Felony charges which may subject you to enhanced

penalties including the possibility of State Prison. For more information on the penalties associated with a particular offense, see

the DUI/DWI Penalties section below.

I was drunk, shouldn't I just plead guilty and get it over with?

It may seem virtuous or maybe just a matter of convenience to simply "get it over with" and just plea guilty. However, you should

consider that the sanctions for DWI in New York are relatively extreme, not to mention the stigma associated with DWI. In a DWI case,

there are many factors to be considered. Just because you are charged with an offense does not mean you are guilty. DWI is not black

and white, nor is any criminal charge. You may think to yourself that you were drunk at the time and now im ready to pay the

consequences. It is not that simple, being "drunk" is not necessarily the same as "intoxication" under the law. Often there is the

possibility that the District Attorney will accept a plea to a lower offense. In particular, DWI as a misdemeanor is often negotiated to

what is known as DWAI--Driving While Ability Impaired, which is a violation rather than a Misdemeanor. It is important to evaluate the

circumstances of each case to determine what actions you will take and how to proceed.

 

Do I need an attorney?

The criminal justice system and in particular, DWI Law, is complex. An experienced defense attorney will understand these

complexities and nuances and will leverage this experience in your favor. The District Attorney's office has this experience and will

prosecute each case within the policy of their office. DWI or charges for any offense can have serious consequences. It is your right to

have an attorney who will represent your best interests.

DUI / DWI PENALTIES

  • DWAI FIRST OFFENSE

  • DWAI SECOND OFFENSE

  • DWAI THIRD OFFENSE

  • DWI FIRST OFFENSE

  • DWI SECOND OFFENSE (FIRST OFFENSE MORE THAN 10 YEARS PRIOR)

  • AGGRAVATED DWI (OVER .18% BAC) FIRST OFFENSE

  • AGGRAVATED DWI (OVER .18% BAC) SECOND OFFENSE

  • DWAI DRUGS

  • DWAI COMBINATION DRUGS/ALCOHOL

  • FELONY OFFENSES

  • Impaired Driving Program

  • Victim Impact Panel

  • Conditional License

  • DMV License Implications for Repeat Offenders

DWAI FIRST OFFENSE

  • DWAI (Driving While Ability Impaired by Alcohol) is a traffic infraction under Vehicle & Traffic Law section 1192-1. DWAI is not a crime (only misdemeanors and felonies are crimes). A person is guilty of DWAI if he or she operates a motor vehicle while the person's ability to operate that vehicle is impaired by the consumption of alcohol. A person's ability to operate a motor vehicle is impaired by the consumption of alcohol when that person's consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent person. by the consumption of alcohol. If you are convicted of DWAI alcohol as a first offense, you may be sentenced to the following:

  • A fine in the range of $300 and $500;

  • Up to 15 days in jail (fine may be waived if given jail time);

  • Suspension of your driver’s license for 90 days (unless under 21 or are the holder of a CDL license);

  • You will most likely be eligible for the Drinking Driver Program (DDP) and a conditional license (In most cases you will be eligible for restoration of your license upon completion of the DDP unless under 21);

  • A surcharge of $255 ( $260 if the case is in either a Town or a Village Court) *surcharges subject to change;

  • A driver responsibility assessment from the DMV of $250 a year for 3 years; and

  • A requirement that you attend a Victim Impact Panel.

  • Note: Ignition Interlock Device not imposed for DWAI

DWAI SECOND OFFENSE

  • DWAI (Driving While Ability Impaired by Alcohol) is a traffic infraction under Vehicle & Traffic Law section 1192-1 as described above. If you are arrested for DWAI alcohol within five years of a previous conviction for any under Vehicle and Traffic Law 1192, and you are convicted of the second DWAI charge,  you may be sentenced to the following:

  • A fine in the range of $500 and $750;

  • Up to 30 days in jail (fine may be waived if given jail time);

  • 6 month minimum driver license Revocation (unless under 21 or are the holder of a CDL license) *Alcohol Evaluation/Rehabilitation before you are eligible for relicensing from the DMV, potential revocation of your registration for 6 months;

  • A surcharge of $255 ( $260 if the case is in either a Town or a Village Court) *surcharges subject to change;

  • A driver responsibility assessment from the DMV of $250 a year for 3 years; and required attendance at a Victim Impact Panel;

  • You will be ineligible for the Drinking Driver Program and/or a conditional license.

DWAI THIRD OFFENSE

DWAI (Driving While Ability Impaired by Alcohol) as a third or subsequent offense may be classified as a misdemeanor if you are convicted after having already been convicted of 2 or more violations of Vehicle and Traffic Law 1192 within the past 10 years. If you are convicted DWAI alcohol as a third or subsequent offense,  you may be sentenced to the following:

  • A fine in the range of $750 and $1,500;

  • Up to 180 days in jail (fine may be waived if given jail time);

  • 18 month minimum driver license Revocation *Alcohol Evaluation/Rehabilitation before you are eligible for relicensing from the DMV, potential revocation of your registration for 6 months.

  • You will also be subject to increased license penalties if the offenses are committed within a short period of time (e.g., 3 convictions within 4 years, or 4 convictions within 8 years).

DWI FIRST OFFENSE
  • DWI (Driving While Intoxicated) is an unclassified misdemeanor under Vehicle & Traffic Law section 1192-2 (DWI per se over .08% Blood Alcohol Content) and 1192-3 (common law DWI) . DWI is a crime. If you are convicted of DWI as a first offense, you may be sentenced to the following:

  • A fine in the range of $500 and $1,000;

  • Up to 1 year in jail, 3 years probation, or both (fine may be waived if given jail time);

  • 6 month minimum driver license Revocation (unless under 21 or are the holder of a CDL license) *potential revocation of your registration for 6 months;

  • You will most likely be eligible for the Drinking Driver Program (DDP) and a conditional license (In most cases you will be eligible for restoration of your license upon completion of the DDP unless under 21);

  • A surcharge of $395 ( $400 if the case is in either a Town or a Village Court) *surcharges subject to change;

  • A driver responsibility assessment from the DMV of $250 a year for 3 years; and

  • Required  attendance at a Victim Impact Panel;

  • One year conditional discharge mandatory, possibility of 3 years probation;

  • Installation and payment of cost for an Ignition Interlock Device (IID) on any vehicle "owned or operated" for 12 months or the duration of probation *early termination of IID may be approved by court **financial affidavit may be approved by the court for partial or full payment of IID costs.

DWI SECOND OFFENSE (FIRST OFFENSE OVER 10 YEARS PRIOR)

If you are convicted of DWI (Driving While Intoxicated) as a second offense having had a previous conviction of DWI over 10 years prior to the incident date of the second offense, an unclassified  you are you may be sentenced to the following:

  • A fine in the range of $500 and $1,000;

  • Up to 1 year in jail, 3 years probation, or both (fine may be waived if given jail time);

  • 1 year minimum driver license Revocation (unless under 21 or are the holder of a CDL license) *potential revocation of your registration for 1 year;

  • You will not be eligible for a fully restored license until the revocation period is over even if you complete the Impaired Driver Program.

  • A surcharge of $395 ( $400 if the case is in either a Town or a Village Court) *surcharges subject to change;

  • A driver responsibility assessment from the DMV of $250 a year for 3 years; and

  • Required  attendance at a Victim Impact Panel;

  • One year conditional discharge mandatory;

  • Installation and payment of cost for an Ignition Interlock Device (IID) on any vehicle "owned or operated" for 12 months or the duration of probation *early termination of IID may be approved by court **financial affidavit may be approved by the court for partial or full payment of IID costs.

DWAI DRUGS FIRST OFFENSE
  • DWAI (Driving While Ability Impaired by a controled substance) is an unclassified misdemeanor under Vehicle & Traffic Law section 1194: DWAI Drugs is a crime. If you are convicted of DWAI as a first offense, the sentencing possibilites are the same as those of DWI as a first offense (see above) with one important difference; DWAI Drugs does not require the installation of an Ignition Interlock Device. Additionally, while your case is pending, you will likely maintain your driving priveleges.

DWAI COMBINED INFLUENCE OF DRUGS/ALCOHOL FIRST OFFENSE
  • DWAI (Driving While Ability Impaired by the combined influence of drugs and alcohol) is an unclassified misdemeanor. If you are convicted of DWAI as a first offense, the sentencing possibilites are virtually identical to those of DWI.

AGGRAVATED DWI FIRST OFFENSE

Aggravated DWI (Driving While Intoxicated) is an unclassified misdemeanor under Vehicle & Traffic Law section 1192-2AA (DWI per se over .18% Blood Alcohol Content).If you are convicted of DWI as a first offense, you may be sentenced to the following:

  • A fine in the range of $1,000 and $2,500;

  • Up to 1 year in jail, 3 years probation, or both (fine may be waived if given jail time);

  • 1 year minimum driver license Revocation (unless under 21 or are the holder of a CDL license) *potential revocation of your registration for 6 months;

  • You will most likely be eligible for the Drinking Driver Program (DDP) and a conditional license (In most cases you will be eligible for restoration of your license upon completion of the DDP unless under 21);

  • A surcharge of $395 ( $400 if the case is in either a Town or a Village Court) *surcharges subject to change;

  • A driver responsibility assessment from the DMV of $250 a year for 3 years; and

  • Required  attendance at a Victim Impact Panel;

  • One year conditional discharge mandatory;

  • Installation and payment of cost for an Ignition Interlock Device (IID) on any vehicle "owned or operated" for 12 months or the duration of probation *early termination of IID may be approved by court **financial affidavit may be approved by the court for partial or full payment of IID costs.

AGGRAVATED DWI FIRST OFFENSE (FIRST OFFENSE OVER 10 YEARS PRIOR)

If you are convicted of DWI (Driving While Intoxicated) as a second offense having had a previous conviction of DWI or Aggravated DWI over 10 years prior to the incident date of the second offense, an unclassified  you are you may be sentenced to the following:

  • A fine in the range of $1,000 and $2,500;

  • Up to 1 year in jail, 3 years probation, or both (fine may be waived if given jail time);

  • 18 month minimum driver license Revocation (unless under 21 or are the holder of a CDL license) *potential revocation of your registration for 6 months;

  • You may be eligible for the Impaired Driver Program (IDP) and a conditional license but will not be eligible for a fully restored license until the full revocation period has elapsed.

  • A surcharge of $395 ( $400 if the case is in either a Town or a Village Court) *surcharges subject to change;

  • A driver responsibility assessment from the DMV of $250 a year for 3 years; and

  • Required  attendance at a Victim Impact Panel;

  • One year conditional discharge mandatory;

  • Installation and payment of cost for an Ignition Interlock Device (IID) on any vehicle "owned or operated" for 12 months or the duration of probation *early termination of IID may be approved by court **financial affidavit may be approved by the court for partial or full payment of IID costs.

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:

  • A fine of between $1,000 and $5,000, up to 4 years in state prison, or both;

  • A period of probation of 5 years;

  • 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;

  • 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;

  • Discretionary revocation of your registration for at least 1 year;

  • A surcharge of $520;

  • A driver responsibility assessment of $250 a year for 3 years;

  • 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:

  • 5 days in jail or 30 days of community service;

  • 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:

  • A fine of between $2,000 and $10,000, up to 7 years in state prison, or both;

  • A period of probation of 5 years;

  • 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;

  • 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;

  • Discretionary revocation of your registration for at least 1 year;

  • A surcharge of $520;

  • A driver responsibility assessment of $250 a year for 3 years;

  • 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:

  • 10 days in jail or 60 days of community service;

  • 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;

  • 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.

 

The Impaired Driver Program (IDP)

To be eligible for a conditional license, you must, among other things, be eligible for, and participate in, the Impaired Driver Program (“IDP”), and not have any VTL § 1192 convictions within the past 5 years.

The IDP is comprised of 7 sessions. The sessions are held once a week, and last between 2 to 3 hours — for a total of 16 hours. The IDP addresses traffic safety issues and how the consumption of alcohol and drugs relates thereto.All participants in the IDP are screened for alcohol and/or drug abuse. If a potential problem is detected, you will be referred for further evaluation (which is done through a qualified private treatment provider of your choice). If such further evaluation determines that alcohol and/or drug treatment is recommended, you must complete such treatment before your full driver’s license will be restored.

Victim Impact Panel

Most people convicted of an alcohol-related offense are sentenced to attend a Victim Impact Panel. This is a program in which presentations are made concerning the harm caused by, and the impact of, driving while intoxicated. The presentations are generally made by people who have lost friends and/or family members as a result of alcohol- or drug-related accidents.

Conditional License

A conditional license allows you to drive:

  • To, from and during work;

  • To and from the Drinking Driver Program and any related alcohol/drug treatment;

  • To and from school;

  • To and from probation;

  • To and from DMV;

  • To and from medical treatment;

  • To and from your child’s school or day care provider; and

  • For one 3-hour time period per week to run errands.

To be eligible for a conditional license, you must be eligible for, and participate in, the Drinking Driver Program (“DDP”). However, there are numerous conditional license disqualifications. To find out if you are eligible for a conditional license, you should consult with a knowledgeable DWI attorney (or with DMV).

If you obtain a conditional license, you can use it until you are eligible for the return of your full driver’s license. However, if you are convicted of a moving violation (e.g., speeding, no seatbelt, etc.) while on a conditional license, the conditional license will be revoked by DMV.

 

If you are convicted of DWAI Drugs, you are not eligible for a conditional license. However, you may be eligible for a restricted use license. A restricted use license is very similar to a conditional license, as are the eligibility requirements therefore.

 

DMV Regulations on Licensure for Repeat Offenders

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:

  • Any driver who, within his or her lifetime, has five or more alcohol- or drug-related driving convictions or incidents in any combination; or

  • 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:

  • 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;

  • The person does not have any serious driving offenses within the 25 years preceding the date of the revocable offense; and

  • 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 Drinking 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.

The Law Offices of Jeffrey V. Scherer

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