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

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The penalties for a second DWI conviction within 10 years in New York are up to four years in prison; a maximum of five years of supervised probation; a fine of between $1,000 and $5,000; court costs of about $400; 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; and ignition interlock device (IID) installation for a minimum of one year, according to the New York Department of Motor Vehicles (DMV).

A DWI is defined as driving with a blood alcohol content (BAC) of between 0.08 and 0.17 percent. A driver who is convicted of a second DWI within five years of a prior alcohol-related offense is required to serve at least five days in county jail unless they are sentenced to 30 days of community service.

Additional penalties for a second DWI can include mandatory attendance at a Victim Impact Panel (VIP), which usually costs money. A judge will also order a convicted individual to complete an alcohol assessment and may require them to undergo substance abuse treatment, which can also cost money. The driver must pay the cost of supervised probation, for urine tests taken during probation and for the cost of an IID. For a second DWI within five years, a judge must order the IID to remain on the vehicle during both the period of driver’s license revocation and any probationary period that follows, according to the New York DMV.

A Second DWI Is a Felony in New York

A second DWI within 10 years is a Class E felony, according to New York Vehicle and Traffic Law (VTL) 1192(3). In New York, felonies are divided into groups according to severity, either violent or nonviolent. A second DWI is a nonviolent felony.

What Is a Second Aggravated DWI?

A second aggravated DWI is a second offense of driving with a BAC of 0.18 percent or higher. The penalty for a second aggravated DWI is up to four years in prison; up to five years supervised probation; a fine between $1,000 and $5,000; court fees of about $400; the requirement to pay a driver responsibility assessment of at least $250 a year for three years; a minimum 18-month driver’s license revocation for an adult or an 18-month driver’s license revocation or revocation until age 21 (whichever is longer) for a driver under age 21; and IID installation for a minimum of one year. A second aggravated DWI is a felony.

What Is a Second DWAI?

A second DWAI is a second incident of driving with a BAC of 0.05 to 0.07 percent. DWAI stands for “driving with ability impaired by alcohol.” The penalty for a second DWAI within five years includes a jail sentence of up to 30 days; a fine of between $500 and $750; the requirement to pay a driver responsibility assessment of at least $250 a year for three years; a six-month minimum driver’s license revocation for a driver 21 or older; and a one-year driver’s license revocation or a revocation until age 21 (whichever is longer) for a driver under 21.

A second DWAI is considered a traffic infraction, not a misdemeanor. The penalties for a second 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.

Relicensing With a Second DWI

A driver who has been convicted of two alcohol-related convictions or incidents cannot get relicensed until the end of the statutory minimum driver’s license revocation period. This is true even if the individual has completed the Impaired Driving Program (IDP), according to the New York DMV. The IDP is a drunk driving education program that an individual must take to earn a conditional license, also known as a hardship license.

Chemical Test Refusal

A chemical test is a test for BAC using breath, blood or urine. An individual who drives on New York’s roads gives implied consent to undergo such testing, according to VTL Section 1194. A refusal to take a chemical test carries mandatory administrative consequences, including the loss of driving privileges and a civil fine, no matter what occurs with the DWI or DWAI charge in court, according to New York’s Department of Criminal Justice Services.

An individual who refuses a chemical test within five years of a previous DWI will suffer a $750 civil penalty, a $100 re-application fee for a driver’s license, an 18-month minimum driver’s license revocation for an adult age 21 or over, or a one-year minimum driver’s license revocation or until age 21 for a driver under 21, whichever is longer.

Second DWIs and Out-of-State Offenses

A DWI counts as a second DWI if one of the following is true: The individual has committed a first DWI within 10 years, the individual has committed a first aggravated DWI within five years, or the individual has committed a first DWAI within five years. The penalty for a conviction for an out-of-state DWI with any previous alcohol or drug violation is a 90-day minimum driver’s license revocation for an adult 21 and over, and a one-year minimum driver’s license revocation or a revocation until the driver turns 21 (whichever is longer) for a driver under 21, according to the New York Department of Motor Vehicles.

An out-of-state DWI or DUI is likely to count as a prior DWI in New York State when the out-of-state offense involves driving with a BAC of 0.08 to 0.17 percent. If the offense was committed with a BAC of 0.18 percent or higher, New York is likely to consider the out-of-state offense to be an aggravated DWI. If the offense was committed with a BAC of 0.05 to 0.07 percent, New York is likely to consider the out-of-state offense to be a DWAI.

No Expungement of DWI Charges

A first DWI counts as the first DWI even if the driver was offered and completed a deferred prosecution agreement in New York or another state. New York does not allow the expungement or sealing of records for a DWI charge. If the out-of-state DWI, DUI, aggravated DWI or DWAI was a first offense and involved the expungement or sealing of records in another state, New York is still likely to count that first alcohol- or drug-related offense as a prior offense.

An individual should talk with their defense attorney about the effect of an out-of-state case that involved the consumption of alcohol, but the crime as charged did not allege alcohol consumption, such as a California “wet reckless” charge.