Not all DWI offenses in New York are equally serious. Some are charged as infractions, many as misdemeanors and only a few are felonies. These include repeat DWI (driving while intoxicated) or DWAI (driving while ability impaired) convictions, committing another felony like manslaughter while driving under the influence, and driving while intoxicated with a child in the car.
Felonies are the most serious types of crimes, and potential penalties include time in state prison. Since multiple violations of lesser driving offenses can result in a felony DWI charge, anyone driving in New York should be aware of the state's system of charging driving-while-intoxicated offenses.
DWI Offenses in New York
New York's basic DWI statute is Vehicle & Traffic Section 1192, which generally makes it illegal to drive under the influence of alcohol and/or drugs and sets out different specific driving behaviors that are prohibited. These include driving while ability impaired and driving while intoxicated. The two categories reflect different degrees of impairment. DWI offenses involve a greater level of impairment than do DWAIs.
DWAI offenses include:
- Alcohol DWAI: driving when ability is impaired by the consumption of alcohol.
- Drug DWAI: driving when ability is impaired by the use of a drug, whether legal or illegal.
- Combination DWAI: driving when ability is impaired by the use of a combination of different kinds of drugs or a mixture of alcohol and drugs.
DWI offenses include:
- DWI: driving while intoxicated.
- DWI per se: driving with a blood alcohol content [BAC] of 0.08 percent or more for regular drivers; 0.04 percent for commercial vehicle drivers.
- Aggravated DWI: driving with a BAC of 0.18 percent or more, or driving intoxicated with a child as a passenger.
Read More: What Is the New York "Per Se" DWI Law?
Categories of Crimes in New York
The maximum penalties for driving while impaired or driving while intoxicated depend largely on the category of the offense. There are three general categories of crimes in New York. The less serious crimes are charged as infractions or misdemeanors, while the most serious crimes are charged as felonies. Infractions carry a maximum jail sentence of less than 15 days. Misdemeanors carry a potential penalty of between 15 days and one year in jail. Felonies are crimes with a potential penalty of more than one year in prison.
Note that a few drinking/driving violations are civil, not criminal offenses. For example, young drivers under 21 years old who are charged under the state's "zero tolerance" law face only administrative penalties. These include suspension of driving privileges and fines. Similarly, refusal to take a chemical test in New York is charged as an administrative penalty.
Otherwise, alcohol DWAIs and most first-time DWI incidents in New York are charged as either infractions or misdemeanors. All alcohol DWAIs are infractions or misdemeanors. That includes first, second and subsequent convictions, and those drivers face a maximum of 15, 30, or 180 days in jail. First-offense drug or combination DWAIs are also charged as misdemeanors. First-offense DWIs and aggravated DWIs are also charged as misdemeanors with a maximum incarceration penalty of one year. Repeat violations of these offenses, however, can be charged as felony DWIs.
Felony DWIs in New York
Most felony DWI charges in New York involve repeat DWAI or DWI offenses. If a driver is charged with a second-offense drug DWAI, a second-offense combination DWAI or a second DWI within 10 years, it is a class E felony. A third offense of either a DWI or an DWAI involving drugs is a class D felony in New York. Repeat convictions of aggravated DWI (a BAC of 0.18 percent or higher) are also felonies. A second offense in 10 years is a class E felony, while a third offense in 10 years is a class D felony.
A person may also be charged with a felony DWI in New York if they commit a different vehicular felony while driving under the influence. For example, if someone is driving under the influence and, because of that impairment, causes the death of another person, they can be charged with felony DWI.
In addition, Leandra’s Law, found at Vehicle & Traffic Code provision 1192(2-a)(b), makes it a class E felony to drive while intoxicated with a child 15 years or younger in the vehicle. It is a class C felony if the child is seriously injured because of the driver's intoxication and a class B felony if the child dies.
Imprisonment for DWI Felonies in New York
Prison penalties for felonies in New York are either indeterminate or determinate sentences. Most felonies, including all DWI felony charges, carry indeterminate prison sentences. This felony penalty specifies minimum and maximum amounts of time in prison, like four to seven years. That range is specified for each class of felony under New York law, with the most serious offenses being Class A, the least serious, Class E.
DWI felonies are usually classes D or E. The maximum incarceration time is seven years for class D felonies and four years for class E felonies. The minimum for each category is between one year and one-third of the maximum. For a class D or E conviction, the judge can opt to impose a fixed sentence for a year or less if this is the driver's first felony conviction within the past decade.
A conviction under Leandra's Law can be a class C or B felony if a child passenger, age 15 or less, is seriously injured or killed because of the driver's intoxication. The maximum sentence for a class C felony is 15 years in prison and the minimum sentence is between one year and five years. For a class B felony, the driver can get up to 25 years in prison. The minimum term for a class B felony is between one year and one third of the maximum, which is eight years and three months.
Other Penalties for a Felony DWI in New York
Incarceration is the most serious penalty a driver faces for a felony DWI in New York. However, there are other penalties involved, which can include substantial fines. For example, a class E felony carries a fine of $1,000 to $5,000, while for a class D felony, the fine can be as high as $10,000.
Those convicted of felony DWI in New York also face a lengthy period of driver’s license suspension or license revocation, as well as mandatory installation of an ignition interlock device once the license is reinstated. They can also be ordered to complete a drug or alcohol addiction program.
- NYS Criminal Laws: Vehicle & Traffic Section 1192
- New York DMV: Penalties for Alcohol or Drug-related Violations
- Criminal Defense Lawyer: New York Felony Crimes by Class and Sentences
- DUI Driving Laws: Second Offense DWI New York
- New York DMV: You and the Drinking Driving Laws
- New York Lawyers: Leandra's Law
- New York DWI Lawyer Blog: Felony DWI in NY
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.