Driving While Intoxicated
You’ve heard it before and it’s true: you’re going to need an expert on this one.
If you’ve been charged with operating a vehicle while under the influence of alcohol, you should obtain legal counsel immediately. A DWI conviction can have severe consequences. Getting a lawyer early in the process is critical to developing a successful strategy and reducing the burden on your life.
Every case is different. Some cases can be quickly negotiated with the government and result in a very favorable outcome for the accused. For example, if you have no criminal history and you were barely over the “per se” blood alcohol content level of .08%, the state might agree to pursue a charge less serious than DWI, saving both you and the state significant time and money. Other cases might be difficult to negotiate—like those where the defendant has a history of alcohol-driving offenses, or those involving injury or death. The most difficult cases might even require a full-blown trial, forcing the government to prove their case against you.
In either case, you should not attempt to represent yourself. You need a reliable and responsive advocate fighting on your behalf. Contact my law office and I will sit down with you to discuss the details of your case—for free and at your convenience.
Common Alcohol Driving Offenses
- DWAI (Vehicle & Traffic Law Section 1192.1): Traffic infraction. Operating a motor vehicle while your ability to do so is “impaired by the consumption of alcohol.” Depending on the circumstances, your lawyer may be able to negotiate a plea to this offense if you were originally charged with DWI. This is a favorable outcome because conviction of a traffic infraction avoids a criminal record.
- DWI Per Se (VTL 1192.2): Misdemeanor. Operating a motor vehicle with a blood-alcohol content (BAC) of .08 or more.
- Aggravated DWI (VTL 1192.2-a(a)): Misdemeanor. Operating a motor vehicle with a BAC of .18 or higher.
- Aggravated DWI with a Child (VTL 2-a(b)): Felony. Known as “Leandra’s Law,” if you can be charged with DWI and you have a child who is 15 or younger in your car, the police can also charge you with this offense. Although all DWI charges are serious, this is among the most serious because it is a Class E Felony.
- DWI (VTL 1192.3): Misdemeanor. Often referred to as “Common Caw DWI,” this is the most commonly charged alcohol driving offense. The police can charge you with this crime if they simply have reason to believe you are “operating a motor vehicle while in an intoxicated condition.” No breath or blood test is required to convict you of this offense—just an officer’s testimony, based on his observations, that you were driving while intoxicated. Common observations are “bloodshot eyes,” “slurred speech,” and “the smell of alcoholic beverages.”
- DWAI Drugs (VTL 1192.4): Misdemeanor. Operating a motor vehicle while “impaired by the use of a drug.” The drug could be a common street drug, like marijuana or cocaine, or even a lawfully prescribed medication.
- Felony DWI: If you have been convicted of a DWI offense within the last 10 years, any new DWI charge will be a felony.
DWI Consequences: Your Driver’s License
- Suspension Pending Prosecution: At your initial appearance, or “arraignment,” the judge will suspend your New York driver’s license (or your privilege to drive in New York if you have an out-of-state license) if there was a chemical test showing your BAC was .08 or higher. This suspension will remain in effect throughout the prosecution of your case.
- The “Hardship License”: However, despite this suspension, your lawyer may be able to argue for a limited right to drive if you meet the criteria for a “hardship license.” If you must drive in order to remain employed, attend school, or make your doctor’s appointments, the court may grant you the limited privilege to drive for these purposes. Make sure you discuss this option with your lawyer as early as possible.
- Pre-Conviction Conditional License: After the suspension pending prosecution has been in place for 30 days, you may apply to the DMV for a “pre-conviction” conditional license. This license is more flexible than a hardship license because in addition to allowing you to drive to work, school, court, and doctor’s appointments, it also allows a window for you to run errands for three hours per week. Typically, the DMV will notify you by mail about your eligibility for this conditional license.
- Post-Conviction Conditional License: Upon conviction, the law requires your license to be suspended or revoked for a period of time. The offense you are convicted of will dictate how long the suspension or a revocation will remain in effect. (The New York DMV’s “Guide to Suspension & Revocation of Driving Privileges in New York State” is a helpful resource and will likely answer any questions you have about your situation). A driver who has not had a prior DWI/DWAI in the last 5 years is eligible to apply to the DMV for a “post-conviction” conditional license. However, the driver must enroll in the Impaired Driver Program to be eligible (formerly known as the Drinking Driver Program, or “DDP”).
DWI Consequences: Punishments and Collateral Consequences
Those convicted of DWI in New York face a complicated web of consequences. Some possible outcomes:
- Severe Financial Strain: You will face hefty fines, surcharges, and other expenses. For example, a first-time “DWI per se” (1192.2) or “Common Law DWI” (1192.3) conviction will result in a minimum fine of $500 and a maximum fine of $1,000. In addition, there is a mandatory surcharge of $175, a crime assistance fee of $25, and an additional “DWI-DWAI surcharge” of $195, totaling nearly $400 in combined surcharges! You will also be required to install an “ignition interlock device” on any vehicle you own or operate, at your expense. The DMV will require you to pay a “Driver Responsibility Assessment,” at $225 per year for three years.
- Loss of Freedom: You may be sentenced to up to one year in jail or 2 to 3 years of probation.
- Significant Time Commitments: You will be required to get an evaluation from a New York state-approved Substance Abuse Counselor. Based on the results of this evaluation, you may also be required to participate in an alcohol or substance abuse treatment program. You may be required to attend a “Victim Impact Panel.” And you may be required to attend the Drunk Driver Program, now known as the Impaired Driver Program (one 2 to 3-hour session per week for 7 weeks, at your expense).
- You may lose your job.
- You may lose your commercial driver’s license.
- You may lose your pistol permit.
- You may lose your professional license.
- For those in the military, you will be “flagged” pending prosecution and will likely receive administrative discipline. In the Army, for example, a General Officer Memorandum of Reprimand is mandatory for any Soldier convicted of DWI. (See Army Regulation 190-5, para. 2-7).
- You may face civil liability for any injuries caused while driving intoxicated.
- Your child custody or support proceedings may be affected due to perceived unfitness or fault for loss of income.
- Canada may determine you inadmissible to the country and refuse your entry.
- Visit the New York DMV’s penalties webpage for even more information on DWI consequences.