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New York DWI F&Q

DWI and DWAI charges in New York are serious, and they can result in two different cases against the accused. There will be the criminal drunk driving case with the courts, as well as the administrative case with the New York Department of Motor Vehicles. These cases work differently. They have their own timelines, and the outcomes of each can have different long-term impacts, affecting everything from driving privileges and finances to an individual’s freedom.

For those who have been arrested for or charged with a drunk driving offense in New York, there can be lots of questions regarding their rights, defense options, and how to proceed. Addressing these questions and concerns, here are some helpful FAQs about DWIs in New York.

For more information and answers related to a specific DWAI or DWI case in Westchester County, contact the Law Office of Michael J. Borrelli.

What Is the Difference Between DWAI versus DWI Charges in New York?

Driving while ability impaired (DWAI) is a less serious offense than driving while intoxicated (DWI). The reason is that DWAI charges are filed when motorists have lower blood alcohol concentrations (BACs). Specifically:

  • DWAI charges are for BACs of 0.05% to 0.08%: There will be a presumption of a DWAI at BACs between 0.07% and 0.08%. At BACs below 0.07%, however, there is no presumption of DWAI.
  • DWI charges are for BACs of at least 0.08%: Aggravated DWI charges can be filed when BACs are at or above 0.18%. Stiffer penalties typically apply to aggravated DWI cases.

Can DWIs Be Reduced to “Wet Reckless” Charges in New York?

New York law does not provide prosecutors with the option of “wet reckless” charges. Instead, prosecutors can file DWI or DWAI charges.

The only way to plead DWI charges down in New York is via DWAI charges. This will only be possible if specific circumstances apply to a given case and/or defendant.

Will I Automatically Get Jail Time for My First DWI in Westchester County?

No. Jail time for first-time DWIs in New York is up to the court. New York law does not require the courts to impose any minimum jail sentence for first DWIs. That’s great news for the accused. It means that defense lawyers have the opportunity to demonstrate why there should be no jail time and/or why alternative sentencing would be a better option if the case ends in conviction.

What Are the Charges & Penalties for DWAIs & DWIs in New York?

DWAI and DWI charges in New York range from minor to serious, depending on an array of factors. Some of these include:

  • Whether a driver has prior drunk driving convictions: The more priors a driver has on his or her record, the more serious the next DWI charges will be. Felony charges can be filed when the accused has two or more prior drunk driving conviction; this could include convictions earned in other states.
  • The circumstances involved in the current case: This includes the driver’s BAC and whether any aggravating factors were involved, like a car accident and injuries to others. Higher BACs and/or other aggravating factors will typically result in more serious charges and potential penalties.

The table below highlights the various charges and penalties associated with DWAI and DWI cases in New York.

DWAI or DWI Offense Charge Jail Fines Administrative Penalties
1st DWAI Traffic infraction Up to 15 days $300 to $500 90-day license suspension
1st DWAI-A/D
(drug impairment)
Misdemeanor Up to 1 year $500 to $1,000 6-month license suspension
2nd DWAI

(within 5 years)

Misdemeanor Up to 30 days Up to $750 6-month license suspension
1st DWI Misdemeanor Up to 1 year $500 to $1,000 6-month license suspension
2nd DWI Misdemeanor 4 Years $1,000 to $5,000 1-year license suspension
3rd or Subsequent DWI Felony 7 Years $2,000 to $10,000 Permanent license revocation

Here, it’s important to understand that New York courts can impose other penalties for DWAIs and DWIs. Depending on the circumstances of the case, these can include (and may not be limited to):

  • The Impaired Driver Program (IDP): This alcohol education program was designed to address the impacts of alcohol- and drug-related motor vehicle accidents in New York. Completing this program to satisfy a DWI sentence will involve attending classroom sessions, submitting to screenings, and undergoing evaluations. Those who do not enroll in or complete the IDP as part of a DWI sentence can lose conditional drivers’ licenses and/or face additional penalties from the court.
  • Ignition interlock devices (IIDs): Anyone convicted of a DWI after August 2010 will have to have an IID installed and maintained in his or her vehicle, typically for 12 months. These devices require an alcohol-free breath sample to start a vehicle. They also periodically require breath samples while the vehicle is being operated. If alcohol is ever detected in a driver’s breath sample, it will be reported to the vendor and court-appointed monitor, like a probation officer. So will any device tampering or removal efforts. Additionally, drivers are responsible for all device operating costs, which are usually about $200 for installation/removal and about $100 per month for maintenance. Fee waivers may be available.

Beyond these penalties, a DWI conviction can result in a criminal record, increased car insurance rates, and possibly damage to careers (or future career opportunities). Given everything that’s on the line in these cases, the accused need a strong defense from an experienced lawyer to effectively fight the charges and minimize the potential impacts.

What Is the “Look Back” Period for DWAIs & DWIs in New York?

The “look back” period for DWAIs and DWAIs in New York may be 5, 10, or 25 years. No matter what look back period applies, a second or subsequent DWI will bring much higher stakes and serious charges to the table. To face that, you need an experienced DWI attorney.

What Are Good DWI Defense Arguments & Strategies?

It depends on the case and the available evidence. Attorney Borrelli can answer this question for you (after learning more about the facts of your case). In general, however, some DWAI and DWI defense strategies that can be effective involve demonstrating that:

  • Police had insufficient probable cause to make the traffic stop in the first place: Probable cause must be documented in the police report for the drunk driving case. If it is not noted there or if there are inconsistencies with probable cause (in the report versus court testimony, for example), it can be easier to show that there were problems with probable cause in the first place.
  • Officers violated protocols: Procedural errors can raise doubts about physical evidence, statements made during the traffic stop, and much more. Pointing out these errors can be a good way to dispute prosecutors’ evidence. In some cases, it may be enough to get evidence thrown out by the court.
  • The rights of the accused were violated during the traffic stop, the arrest, or after: This can occur in any number of ways, like officers failing to Mirandize a driver while making an arrest. Evidence obtained in the course of violating the rights of the accused is often not admissible in criminal cases, including those for DWIs.
  • The breathalyzer or blood test results are inaccurate: Breathalyzers need to be calibrated and properly administered, with specific waiting periods for taking samples, based on the circumstances. Similarly, blood samples need to be drawn, transported, and analyzed in a particular manner, and chains of custody for all samples need to be maintained according to strict standards. Failures at any point, from breathalyzer devices to officers and labs, can raise serious questions about the validity of BAC results, again helping a defense case.

Remember, the mistakes that led to a DWI arrest and charges may not be the only mistakes made in your case. Mistakes made by authorities at any point can create unique defense opportunities. An experienced lawyer will know how to identify and leverage these to craft stronger defense cases.

Get More Answers About DWIs & Your Defense Options: Contact Mamaroneck DWI Lawyer Michael J. Borrelli

The right answers, advice, and attorney can make a big difference in a DWI defense case and its outcome. For those facing DWAI or DWI charges in Westchester County, a superior defense starts with Mamaroneck DWI Lawyer Michael J. Borrelli.

He has more than 25 years’ experience in criminal law, including 14 years of service as a DWI supervisor in Westchester County, NY. This background has given him deep knowledge of DWAI and DWI laws, as well as lasting relationships with the courts and police in Westchester County. That can make for a winning combination when it’s time to fight drunk driving charges and seek the best possible outcomes to these cases.

Call (914) 825-8620 or contact us online for a FREE, confidential DWI consultation 24/7.

The sooner you have DWI Attorney Borrelli in your corner, the better. He is ready to counsel and represent you at every point moving forward, providing strategic advocacy and support in and outside of the courtroom. That commitment can be the key to achieving favorable resolutions, from reduced charges or dismissals to acquittals, better plea deals, or alternative sentencing.

Given that DWIs can stick with you for years, your defense can greatly influence the resolution to your case, as well as your future. When you are serious about having the strongest possible defense and the best chances of favorable outcomes, you need Attorney Borrelli.

Discover your best DWI defense options in a FREE consultation. A call or a click can be the first step towards building a stronger defense and positioning your case for a better resolution.


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