New York State has a comprehensive and sometimes complex system of laws related to driving under the influence of alcohol and drugs. These are largely found in the Vehicle & Traffic Laws starting in Section 1192. The law sets out both lesser offenses of driving with ability impaired (DWAI) and the more serious offenses of driving while intoxicated (DWI). Repeat offenders are subject to bigger fines and prison time. Drivers under 21 are subject to the state's zero tolerance law.
Anyone driving in New York should have a thorough understanding of its DWAI and DWI laws, as well as the legal consequences for breaking them.
Range of Drunk Driving Offenses
When someone talks about legal prohibitions on drunk driving, they often use the term DUI (driving under the influence) or DWI (driving while intoxicated). That makes it sound as if there is a one-size-fits-all drunk driving law. But this is far from the case in New York where the state laws contain a variety of offenses, each with its own specifics and consequences.
Consequences can include license revocation or suspension, fines and imprisonment. The severity of penalties is based on whether the violation is categorized as a civil offense, an infraction, a misdemeanor or a felony, as well as on the number of previous traffic offenses a driver has committed.
One way to break down driving impairment offenses in New York is to focus on the difference between impairment and intoxication. Distinctions are also made depending on whether the driver has imbibed alcohol or taken drugs.
DWAI Offenses in New York
Driving with ability impaired by alcohol (alcohol DWAI) or drugs (drug DWAI) means that the person's ability to drive has been impaired to any degree by use of the substance. Vehicle & Traffic Laws Section 1192 (A)1 states that no person shall operate a motor vehicle while the person's ability is impaired by the consumption of alcohol. Subsections 4 and 4a make it illegal for a person to operate a motor vehicle while their ability is impaired by the use of a drug, the combined influence of a several drugs, or of alcohol and drugs.
These crimes may resemble each other, but they are not the same level of offenses. A first offense of alcohol DWAI is an infraction, the least serious type of crime, punishable by no more than 15 days in jail. The driver will also get a fine of between $300 and $500 and have their license suspended for 90 days. A second offense within five years can be punished by up to 30 days in jail, a fine of $500 to $750 and a license revocation for at least six months. A third offense within 10 years is a misdemeanor and can be punished by 180 days in jail, a fine between $750 and $1,500 and a license revocation for at least six months.
On the other hand, a first-offense drug-DWAI and a first-offense combination-DWAI are both misdemeanors. That means that the court can sentence the driver to a maximum jail term of one year. The term drugs, as used in this statute, is not limited to illegal drugs. Even though it is legal for a person to take over-the-counter drugs and drugs prescribed to them, driving while impaired by these drugs is a drug-DWAI.
The fine for a first-time DWAI is between $500 and $1,000 and the license suspension may be for a term of six months. A second conviction within 10 years can be punished by up to four years in prison, a fine of between $1,000 and $5,000 and a license revocation for at least one year. A third violation within a 10-year period can get the driver seven years in prison, a fine of $2,000 to $10,000 and a one-year license revocation.
DWI Offenses in New York
Driving while intoxicated (DWI) in New York means that a person is driving while their ability is significantly impaired or driving with a blood alcohol concentration (BAC) over the legal limit. This BAC-based DWI is often called a "per se" DWI.
While a regular DWI will require evidence of impairment, like witness testimony about the way the driver looked, drove and acted, a per se DWI does not. Per se means "of itself" in Latin, and for a per se DWI, proof of the driver's blood alcohol concentration is sufficient to establish intoxication.
The regular BAC limit in New York is 0.08 percent. A driver with a BAC of 0.08 percent or higher will be charged with a per se DWI. However, a commercial driver has a lower legal BAC limit of 0.04 percent. And those under the age of 21 are subject to New York's zero tolerance law (Vehicle & Traffic Laws Section 1192-a) that sets a BAC of 0.02 percent. A BAC of 0.18 percent or higher constitutes an aggravated DWI, a more serious crime than a regular DWI that carries more serious consequences.
Consequences for DWI in New York
A first-offense DWI or per se DWI is a misdemeanor. This is a less-serious crime than a felony, but more serious than an infraction. A misdemeanor is punishable by up to one year in jail, a fine of between $300 and $500 and a license suspension of up to six months. Note that a driver can apply for a conditional license in order to go to work or school, and may need to participate in New York State’s Impaired Driver Program to do so.
If a driver gets a second conviction within 10 years, they can be punished by up to four years in prison, a fine of between $1,000 and $5,000 and a license revocation for at least one year. A third violation within 10 years is punishable by seven years in prison, a fine of $2,000 to $10,000 and a one year license revocation.
Penalties for Aggravated DWI in New York
A first offense aggravated DWI – driving with a BAC of 0.18 percent or above – is also a misdemeanor. That means the maximum jail time for this offense is one year, but the fines are higher than for a regular DWI. A first-offender can be fined between $1,000 and $2,500, with a license revocation of at least one year.
A second offense within a 10-year period is a felony punishable by four years in prison with a license revocation period of at least 18 months. A third offense in 10 years is a Class D felony punishable by up to seven years in prison, a fine of between $2,000 and $10,000 and a license revocation of at least 18 months.
Chemical Tests in New York
Anyone driving a vehicle in New York is deemed to have given consent to chemical testing if a law enforcement officer suspects them of driving while impaired by alcohol or drugs. Typically, a police officer will ask a driver to take a breathalyzer test from a hand-held machine during the traffic stop. If this shows use of alcohol, the officer can take the driver to the station for more precise chemical testing. This can take the form of a blood, breath, urine or saliva test. Testing is available for both alcohol and drugs.
Police cannot force a driver to take a chemical test in New York absent a search warrant. But while it may be tempting to refuse to submit to the test, refusal carries its own consequences. It is a civil offense in New York called chemical test refusal. A first offense can get the driver a $500 civil penalty; $550 for commercial drivers. The driver's license will be revoked for at least one year or 18 months for a commercial driver; an application to restore the license is $100.
If the refusal comes within five years of a prior refusal or any DWI charge, the penalty is $750, and the revocation period is 18 months. A second offense revokes a commercial driver's license permanently.
New York's Zero Tolerance Law
New York's zero tolerance law relates to drinking and driving by those below the legal drinking age of 21. That law makes it illegal for a person under the age of 21 to operate a motor vehicle after having consumed alcohol. These drivers are too young to legally drink, so the legal limit for driving is very low. If a breathalyzer shows a BAC of between 0.02 and 0.07 percent, a young driver has violated the zero tolerance law found in the Vehicle & Traffic Law Section 1192-a and can be cited.
However, this is not a criminal citation, so no prison time can result from it. It is a civil offense that results in a relatively small fine – $125 civil penalty. After an administrative hearing at the DMV, the driver's license can be suspended for six months on a first offense and for one year on a second offense.
The zero tolerance law does not preclude a young driver from being charged under the regular DWI laws. If the young person's BAC is above 0.05 percent, they may be charged with a DWAI infraction. If their BAC is 0.08 percent or higher, they will be charged with a DWI in criminal court.
Note that the penalties for refusing a chemical test for those under 21 years old are greater than the penalty for a first offense. A young person who refuses a chemical test gets a $300 civil penalty and a license revocation of at least one year. The fine for a second refusal goes up to $750.
Leandra's Law in New York
In 2009, an 11-year-old girl named Leandra Rosado was a passenger in a car driven by her friend's mother. The mother was intoxicated and flipped the car, killing Leandra. In reaction to this accident, the New York legislature changed the DWI statutes, making it an automatic felony to drive while intoxicated or impaired by drugs with a child under the age of 16 in the car. This provision is now incorporated into the Vehicle & Traffic Laws Section 1192 (2-a)(b).
This crime is a Class E felony, punishable by up to four years in state prison. If the child suffers serious physical injury, it is a Class C felony, punishable by up to 15 years in state prison. If the child dies, it is a Class B felony, punishable by up to 25 years in prison.
Ignition Interlock Devices
Another section of Leandra's law mandates that anyone convicted of an aggravated DWI charge be required to install and use an ignition interlock device (IID) in every car they own or drive. An ignition interlock device is a type of breathalyzer test that is attached to the ignition system of a vehicle.
Once an IID is installed, the car cannot be started until the driver exhales into the machine and establishes that their breath is free of alcohol. The IID also will require that the driver blow into the machine from time to time as the person is driving. If the person refuses, the IID causes the horn to blow repeatedly or the alarm to sound until the car is stopped.
Installation and use of an IID is expensive. A driver must use a court-certified company, and both installation and removal of the machine costs at least $200. The companies charge a monthly fee during the time the IID is used, and a person with a number of cars must get an IID installed in each one.
- New York Criminal Code: Vehicle & Traffic Law Section 1192
- New York DMV: Penalties for Alcohol or Drug Related Violations
- New York DMV: The Impaired Driver Program - Alcohol & Drug Rehabilitation Program
- New York DMV: You and the Drinking Driving Laws
- Nave Law Firm: New York Zero Tolerance Law
- DMV.org: DUI & DWI New York
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.