DUI & DWI

Aggravated DWI in New York: How Does it Differ From a DWI?

By Teo Spengler, J.D.

September 30, 2020

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

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An Overview of New York DWAI & DWI Laws, Fines & Penalties

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Rear View Of Woman Watching Map While Driving Car

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A driving while impaired (DWI) charge in New York is a serious offense, but it's not the most serious driving-under-the-influence crime in this state. An aggravated DWI is a more serious offense. There are two types of aggravated DWI, one based on the motorist's blood alcohol concentration while driving, and the other involving the presence of a child passenger in the vehicle. Some types of aggravated DWIs are automatic felonies, punishable by years in state prison.

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

A driver can be charged with an aggravated DWI offense if the person operating the vehicle is found to have a BAC of 0.18 percent or higher. This is called an aggravated DWI per se. There is a second and much more serious type of aggravated DWI if there are children in the vehicle that results from a New York law called Leandra's Law.

Aggravated DWI in New York State

New York’s drunk driving laws make it a crime to operate a motor vehicle, including an ATV, snowmobile or boat in an “intoxicated condition.” Intoxication can be established by physical evidence, as well as by witness testimony of the driver's behavior. It can also be established by evidence that chemical testing showed the driver's blood alcohol concentration (BAC) to be 0.08 percent or higher. A DWI based on BAC levels is called a "per se" DWI. Note that boating while intoxicated is termed a BWI, but the same rules apply.

Aggravated DWI Per Se

Under New York law, every person who drives in the state is deemed to have consented to a chemical test if the police have reasonable cause to believe they are driving under the influence of alcohol or drugs. The test is given to see if the person has alcohol or drugs in their system. In the case of alcohol, testing gives law enforcement that person's blood alcohol concentration (BAC).

Driving with a BAC of over 0.08 percent is illegal and a per se DWI. If the chemical testing shows that the driver had a BAC of 0.18 percent or higher, the person can be charged with an aggravated DWI. This offense is called a per se aggravated DWI.

Penalties for a Per Se Aggravated DWI Conviction

Penalties for a per se aggravated DWI depend on whether the driver has any prior DWIs or BWIs (boating while intoxicated convictions) within the past 10 years. A first-time offense is a misdemeanor punishable by up to a year of jail time, a driver's license revocation of at least a year and a fine of between $1,000 and $2,500.

A second aggravated DWI offense is a Class E felony, punishable by up to a four year jail sentence, a fine between $1,000 and $5,000 and a license suspension of at least 18 months.

A third aggravated DWI in 10 years is a Class D felony. The driver can be sentenced to a maximum of seven years in jail and will be fined between $2,000 and $10,000. The license revocation will last for at least 18 months.

Leandra's Law Aggravated DWI

Leandra's Law was enacted as a result of a car crash caused by an intoxicated driver. Leandra Rosado, an 11-year-old New York girl, was a passenger in a car driven by her friend's mother. The intoxicated driver lost control and flipped the car, killing Leandra and injuring the other girls in the car. Leandra's Law changed the Vehicle & Traffic Law in New York State to make it an automatic felony for a person to drive under the influence of alcohol or drugs with a child passenger under the age of 16 years.

While this law is listed as an aggravated DWI, it does not share many of the same elements as the per se aggravated DWI. The most obvious difference is that the driver must have a passenger in the vehicle under the age of 16 years old. This passenger can be the driver's own child, but it need not be. As long as the passenger is 15 years or younger, it is an aggravated DWI if the driver is under the influence of alcohol or drugs.

Under the Influence for Leandra's Law

Under the influence in this context does not necessarily mean the level of intoxication required for a per se aggravated DWI. Instead of the higher BAC of 0.18 percent, it is sufficient for a Leandra's Law aggravated DWI charge that the driver has a BAC of 0.08 percent. Put another way, if the driver commits a regular per se DWI with a child passenger in the car, they can be charged with a Class E felony, even for a first offense.

Likewise, driving under the influence of a drug or drugs, or a combination of alcohol and drugs, with a child in the car is an aggravated DWI for this offense. New York law makes it illegal for a person to drive while their ability is impaired by a drug, several drugs or a combination of drugs and alcohol. These offenses are termed drug-DWAIs or combination-DWAIs.

Note that the drugs in question can be perfectly legal and even over-the-counter medications as long as their use impacts someone's ability to drive. Committing one of these offenses with a child passenger is also an aggravated DWI.

Penalties for Leandra's Law Aggravated DWI

As is the case with per se aggravated DWIs, the criminal penalties for Leandra's Law aggravated DWI depend on whether the driver had prior convictions within the past 10 years. However, even if the person has never before been charged with a driving under the influence offense, this aggravated DWI will be charged as a Class E felony.

First and second offenses are punishable by four years in state prison, a fine of up to $5,000 and a license revocation of up to 18 months. A third offense within 10 years is a Class D felony. It can be punished by up to seven years in jail and a fine of up to $10,000. The person's license can be revoked permanently.

IID Requirement for Aggravated DWIs

Leandra's Law also imposes the requirement that all drivers convicted of a DWI or an aggravated DWI be ordered to install and maintain an ignition interlock device (IID). This is a type of breathalyzer that prevents the car from starting if the driver's breath shows they have been drinking.

Those convicted of any DWI or aggravated DWI in New York must install an IID on every vehicle they own and every vehicle they operate. They have to maintain the IID for at least a year after jail or prison time is completed.

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