DUI & DWI

The Legal Limit in New York for a DWI or DWAI

By Teo Spengler, J.D.

September 30, 2020

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

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Felony DWI in New York State: What to Expect, Laws & Penalties

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Some people think that the legal limit, in terms of drinking and driving, means the number of drinks a person can consume while remaining sober enough to drive. That is not the case. The term, legal limit, refers to the point at which the blood alcohol concentration (BAC) of the driver constitutes impaired driving under state law.

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

If the driver's BAC is shown to have been over 0.08 percent while they drove, as established by chemical testing, this constitutes sufficient evidence of intoxication in and of itself. It is termed a "per se" DWI, since no other evidence of impairment of driving ability is required.

In New York, there are a number of different BAC limits relating to various crimes associated with drinking and driving: drinking while intoxicated (DWI), aggravated DWI, and driving while ability impaired (DWAI). The specifics of these offenses are set out in New York Vehicle and Traffic Law Section 1192 and following sections. Every driver in New York State should understand them.

Legal Limits for Drunk Driving in New York State

Under New York DWI law, anyone driving while intoxicated commits a DWI. Intoxication occurs, under the statutes, when a person's ability to drive is impaired by alcohol or drugs. Impairment can be evidenced by the physical appearance of the person, like red eyes or enlarged pupils, or by a witness' account of the driver's erratic driving or behavior when asked to perform roadside sobriety testing by law enforcement officers.

New York drivers are deemed to have consented to chemical testing – breath, urine, saliva or blood testing – by the mere act of driving in the state. Refusal to test when asked to do so by a police officer is, in and of itself, a crime.

Other DWI BAC Limits in New York

The legal BAC that applies to most New York drivers is 0.08 percent. However, a few categories of drivers are subject to different BAC levels, and a significantly higher BAC constitutes a more serious offense.

Commercial drivers: A different BAC level applies to commercial drivers. The BAC for those drivers, including anyone carrying a paying passenger, is half of the regular BAC level. That is, a commercial driver is guilty of a per se DWI level I if their BAC is between 0.04 percent and 0.06 percent. If a commercial driver's BAC is over 0.06 percent, it is a per se DWI level II. The lower BAC level is intended to protect the commercial driver's passengers from harm occasioned by drunk or impaired driving.

Drivers under 21: Another category of New York drivers subject to a lower legal BAC limit are those under the age of 21. It is not legal to drink in New York before reaching 21 years old, so the state is one of many that have zero tolerance laws concerning younger people who drink and drive. It is illegal for a person under the age of 21 to drive in the state with alcohol in their system, and the legal BAC limit for this category of drivers is set at 0.02 percent. Note that a zero tolerance law violation is not a crime in New York. It is a civil offense that can result in a fine and the loss of driving privileges.

Since the general legal BAC limit for driving in New York is 0.08 percent, any driver with a BAC at that level or above can be charged with a DWI. However, if a driver's BAC is sufficiently higher than that – 0.18 percent or above – the offense can be charged as a per se aggravated DWI. This is a more serious offense.

Driving While Ability Impaired

In addition to driving while intoxicated (DWI) offenses, New York law also makes it a crime for a person to operate a motor vehicle while their ability to drive is impaired (DWAI). A driver can be charged with a DWAI if their ability to drive is impaired by alcohol, a drug (prescription, over-the-counter or illegal), a combination of drugs, or a combination of drugs and alcohol. To convict a drunk driver of a DWAI, all that is required is proof that the driver's abilities were impaired to any degree. Compare this to a DWI where the person's ability to drive must be significantly impaired.

A prosecutor can establish impairment by evidence of the person's physical appearance, driving behavior or performance on roadside sobriety tests that show coordination and balance, for example. For drug-related DWAIs, the prosecutor must present evidence of actual impairment since there is no established legal limit that applies to marijuana or other drugs. But for an alcohol-related DWAI, a BAC remains relevant. A BAC of greater than 0.05 percent but less than 0.07 percent is considered sufficient evidence of impairment. If the person's BAC is at 0.08 percent or higher, they will be charged with a DWI, not a DWAI.

DWI/DWAI Penalties in New York State

The legal BAC limits for a DWI and a DWAI can be very close to each other, with 0.08 percent getting a driver a DWI, but 0.07 percent can be a DWAI. But the difference in penalties between the two charges are quite significant.

A first-time DWI is a misdemeanor. While that is a less-severe crime than a felony in New York, it is still a crime. A misdemeanor conviction in New York can result in imprisonment for up to a year and a fine of between $500 and $1,000, as well as a driver's license suspension.

In contrast, if a driver's BAC is between 0.05 and 0.07, they will be charged with a DWAI. This is not a misdemeanor but an infraction and carries a maximum sentence of 15 days in jail and a fine of $500.

Possible Changes in Legal Blood Alcohol Levels

Although most states set the legal BAC limit for driving while intoxicated at 0.08 percent, this is not true of every state. Utah reduced its legal BAC limit to 0.05 percent in 2018. And New York is considering the same move.

In 2019, a bill was introduced in the New York State Assembly to lower the threshold for per se DWI offenses from 0.08 percent to 0.05 percent. If passed, it would also reduce the limit for aggravated DWI from 0.18 percent to 0.12 percent. Needless to say, it has ardent supporters, as well as critics.

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