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

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The penalties in New York for a third or subsequent DWI within 10 years are up to seven years in prison; a maximum of five years of supervised probation; a fine of between $2,000 and $10,000; court costs of about $400; and the requirement to pay a driver responsibility assessment of at least $250 a year for three years. The individual will also suffer a minimum one-year driver’s license revocation with the possibility of permanent license denial and the potential for a five-year denial; and ignition interlock device (IID) installation for a minimum of one year, plus a five-year DMV license denial followed by IID installation for five years, 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.

Additional penalties for a third 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 individual must pay the cost of supervised probation, for urine tests taken during probation and for the cost of an IID.

A Third or Subsequent DWI Is a Felony

A third DWI within 10 years is a Class D felony, according to New York Vehicle and Traffic Law (VTL) 1192(3). In New York, felonies are divided into groups according to severity. Felonies are classified as violent or non-violent. A third DWI is a nonviolent felony.

What Is a Third Aggravated DWI?

A third or subsequent aggravated DWI within 10 years is a third offense of driving with a BAC of 0.18 percent or above. The penalty for a third aggravated DWI is up to four years in prison; up to five years supervised probation; a fine between $2,000 and $10,000; court fees of about $400; and the requirement to pay a driver responsibility assessment of at least $250 a year for three years.

The individual will also suffer 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.

What Is a Third DWAI?

A third DWAI is a third incident of driving with a BAC of 0.05 to 0.07 percent. DWAI stands for “driving with ability impaired by alcohol.” A third or subsequent DWAI within 10 years is an unclassified misdemeanor. The penalty for a third or subsequent DWAI includes a jail sentence of up to 180 days; a fine of between $750 and $1,500; 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 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.

The penalties for a third 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.

Penalties for Three of More DWAIs

A driver who has three or more alcohol-related convictions or refusals within 10 years can expect a permanent driver’s license revocation with a waiver request permitted after at least five years. An individual who has three or four alcohol-related convictions and one serious driving offense (SDO) within a 25-year period will be deemed a persistently dangerous driver. They can expect a permanent driver’s license denial, absent unusual, extenuating or compelling circumstances.

An individual who has three or four alcohol-related convictions without an SDO in a 25-year period can expect a driver’s license denial for five years in addition to the statutory revocation period, followed by a relicense with a restricted license and required installation of an IID for five years.

An individual convicted of five or more alcohol-related offenses in their lifetime can expect a permanent driver’s license denial, absent unusual, extenuating or compelling circumstances, according to the New York DMV.

Chemical Test Refusal Penalties

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 and a minimum 18-month driver’s license revocation for an adult age 21 or over, or a minimum one-year driver’s license revocation or until age 21 for a driver under 21, whichever is longer.

Third DWIs and Out-of-State Offenses

A DWI counts as a third DWI if one of the following is true: The individual has committed a second DWI within 10 years, a second aggravated DWI within five years or a second DWAI within five years. The penalty for a conviction for an out-of-state DWI with any previous alcohol/drug violation is a minimum 90-day driver’s license revocation for an adult 21 and over, and a minimum one-year 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.

A prior DWI counts even if the individual 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 or second offense and involved the expungement or sealing of records in another state, New York is still likely to count that alcohol-related offense as a prior offense.