DUI & DWI

First Offense or Conviction: New York DUI/DWI Guide

By Jessica Zimmer

September 25, 2020

Reviewed by Michelle Seidel, B.Sc., LL.B./JD, MBA

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Second Conviction or DWI Offense: New York DUI/DWI Guide

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A first offense of driving while intoxicated (DWI) in the state of New York is punishable by up to one year in jail; up to three years unsupervised probation; a fine ranging between $500 and $1,000; court fees of about $260; the requirement to pay a driver responsibility assessment of at least $250 a year for three years; a minimum six-month driver’s license revocation for an adult 21 or over or a minimum one-year driver’s license revocation for an individual under 21; and installation of an ignition interlock device (IID) for a minimum of one year, according to the New York Department of Motor Vehicles. An individual may also be required to attend a Victim Impact Panel (VIP). A DWI is defined as driving with a blood alcohol content (BAC) of between 0.08 and 0.17 percent.

TL;DR (Too Long; Didn't Read)

A first DWI is categorized as an unclassified misdemeanor, according to New York Courts. There is no required minimum jail time for a first New York DWI conviction. An individual convicted of a first-time DWI may be eligible for a conditional driver’s license, also known as a hardship license.

What Is a First Aggravated DWI?

A first aggravated DWI is a first offense of driving with a BAC of 0.18 percent or above. The penalty for a first aggravated DWI is up to one year in jail; up to three years unsupervised probation; a fine between $1,000 and $2,500; court fees of about $260; the requirement to pay a driver responsibility assessment of at least $250 a year for three years; a minimum one-year driver’s license revocation for an adult or a driver under age 21; and IID installation for a minimum of one year.

A first aggravated DWI is usually charged as a misdemeanor, but can be charged as a felony.

What Is a First DWAI?

A first DWAI is a first incident of drunk driving with a BAC of 0.05 to 0.07 percent. DWAI stands for “driving with ability impaired by alcohol.” The penalty for a first DWAI includes a jail sentence of up to 15 days; a fine between $300 and $500; the requirement to pay a driver responsibility assessment of at least $250 a year for three years; a 90-day driver’s license revocation for an adult age 21 or above; and a minimum one-year driver’s license revocation for an individual under age 21.

A first DWAI is considered a traffic infraction, not a misdemeanor. The penalties for a first DWAI can be more serious if the individual was driving under the influence of a drug other than alcohol or under the influence of alcohol and one or more additional drugs. The names of such charges are DWAI-Drug and DWAI-Combination, according to the New York Department of Motor Vehicles.

The New York Impaired Driver Program

An individual who has committed a first offense for DWI will likely be eligible for New York’s Impaired Driver Program (IDP), according to the New York Department of Motor Vehicles. The IDP was previously known as Drinking Driving Program, or DDP. As an alternative, the driver can complete an approved out-of-state program. An Order of Suspension or Revocation from the New York Department of Motor Vehicles indicates a nearby state or county motor vehicle office where a driver can enroll in the IDP and apply for a conditional license or driving privilege.

Refusal of a Chemical Test

A chemical test is a test of breath, blood or urine. A driver on New York roads is deemed to have given implied consent to a chemical test, according to the New York Division of Criminal Justice Services. A refusal to submit to a breathalyzer, blood or urine test has mandatory administrative consequences. First, the driver will suffer a driver’s license suspension at arraignment.

Arraignment is the first stage of a criminal proceeding in which the judge formally states the charges against the defendant. If the individual is convicted of a first DWI charge, their driver’s license will be revoked for at least one year at a Department of Motor Vehicles hearing. They will also be required to pay a civil penalty of $500. The penalties and fines for a chemical test refusal are distinct from, and in addition to, the penalties and fines for a DWI.

The Zero Tolerance Law for Drivers Under 21

The Zero Tolerance Law prohibits alcohol consumption by drivers under age 21. The penalties for a first offense DWI for drivers under 21 are provided in the sections on first DWI, first aggravated DWI and first DWAI. A driver under age 21 who refuses a chemical test will have to pay a $300 civil penalty and a $100 re-application for their driver’s license, which will be revoked for a minimum of one year.

Jail Time for a First DWI in New York

If an individual convicted of a first DWI in New York has no criminal history, it is unlikely they will spend time in jail other than time to become sober. If the driver has a criminal record of offenses committed before the first DWI, the judge may choose to impose a jail sentence. Other factors that can motivate a judge to impose a jail sentence include a DWI that involved a high BAC, an accident, or having a child 15 or younger in the car.

An individual who has committed a more serious first DWI, such as one that involves other offenses like damaging trespassing or damaging property in a hit-and-run accident, may be sentenced to jail time.

What Is Driving While Intoxicated Per Se?

An individual who is driving with a BAC of 0.08 percent or above is violating New York Vehicle and Traffic Law (VTL) 1192 (2), also known as the DWI per se law. This rule differs from VTL 1192 (3), which defines a common law DWI. The per se rule relies on the results of the motorist’s chemical test, rather than on a law enforcement officer’s observations regarding intoxication and impaired driving.

Does a First DWI Count?

A first DWI, a first aggravated DWI and a first DWAI all count as prior alcohol-related driving offenses if an individual commits another incident involving drinking and driving. A driver who is convicted of two alcohol-related driving offenses within 10 years will suffer a more severe penalty than a first-time offender.

An individual who is convicted of three or more alcohol-related driving offenses and has committed a Serious Driving Offense (SDO) within a 25-year period can expect a permanent driver's license denial, absent unusual, extenuating and compelling circumstances, according to the New York Department of Motor Vehicles. This is true even if the individual was offered a deferred prosecution for the first DWI. New York State does not allow an individual who has been convicted of a DWI to expunge or seal the record of this offense.

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