DUI & DWI

What Is a DWAI in New York & How Is it Different From a DWI?

By Jessica Zimmer

September 30, 2020

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

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

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The Driving With Ability Impaired (DWAI) offense in New York State involves driving while impaired with a lower blood alcohol content (BAC) than Driving While Intoxicated (DWI), according to Vehicle and Traffic Law Section 1192. For a DWAI, a driver must have 0.05 percent to 0.07 percent BAC. For a DWI charge, a driver must have 0.08 percent BAC or higher, according to the New York Department of Motor Vehicles. Generally, the penalties for DWAI are less severe than for a DWI conviction. They still include a fine, jail time and a driver’s license suspension or revocation.

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

For a DWAI, a driver must have 0.05 percent to 0.07 percent BAC. For a DWI charge, a driver must have 0.08 percent BAC or higher.

The penalty for a first-time DWAI is a maximum jail term of 15 days, a fine between $300 and $500, and a driver’s license suspension for 90 days. This drunk driving offense is a violation of the law, less serious than a misdemeanor.

Penalties for a Standard DWAI in New York

A standard DWAI charge is also known as a Driving While Ability Impaired by Alcohol. The penalty for a first-time DWAI is a maximum jail term of 15 days, a fine between $300 and $500, and a driver’s license suspension for 90 days. This drunk driving offense is a violation of the law, less serious than a misdemeanor. The penalty for a second DWAI within five years is a maximum jail term of 30 days, a fine between $500 and $750, and a driver’s license revocation of at least six months.

A second DWAI is also not a misdemeanor, but a third or subsequent DWAI within 10 years is a misdemeanor. The penalty for a third DWAI conviction is a maximum jail term of 180 days, a fine between $750 and $1,500, and a driver’s license revocation of at least six months.

Additional Penalties for DWAI

Additional penalties for DWAI in New York include surcharges, or court costs, for alcohol-related misdemeanors ($260) and felonies (generally $400), and greater penalties for multiple alcohol or drug violations within a 25-year period. Three or more alcohol or drug-related convictions or refusals of chemical tests within 10 years can result in a permanent loss of driving privileges, according to the New York Department of Motor Vehicles. A driver may be required to attend a Victim Impact Panel (VIP), which carries a fee, pay a driver responsibility assessment each year for the next three years, and serve a period of probation. The probation carries costs if it involves supervision, according to the New York Department of Motor Vehicles.

Penalties for DWAI-Drug in New York

The term DWAI-Drug refers to driving while ability is impaired by a single drug other than alcohol. The penalty for a first DWAI-Drug is the same as for a first offense of Driving While Intoxicated. This is a maximum jail term of one year, a fine between $500 to $1,000, and a driver’s license suspension of at least six months.

The penalty for a second DWAI-Drug is the same as for a second DWI offense. This is a jail term of up to four years, a fine between $1,000 and $5,000, and a driver’s license revocation for at least one year. A second DWAI-Drug is a Class E felony.

The penalty for a third or subsequent DWAI/Drug within 10 years is the same as for a third DWI. This is a jail term of up to seven years, a fine between $2,000 and $10,000, and a driver’s license revocation for at least one year. A third or subsequent DWAI/Drug is a Class D felony.

Penalties for DWAI-Combination

The term DWAI-Combination refers to an act of driving with ability impaired by a combined influence of drugs and alcohol. The penalty for a first DWAI-Combination in New York State is a maximum jail term of one year, a fine between $500 and $1,000, and a driver’s license revocation of at least six months. The penalty for a second DWAI-Combination within 10 years is a jail term of up to four years, a fine between $1,000 and $5,000, and a driver’s license revocation of at least one year.

A second DWAI-Combination is a Class E felony. The penalty for a third or subsequent DWAI-Combination within 10 years is a maximum jail term of seven years, a fine between $2,000 and $10,000, and a driver’s license revocation of at least one year. A third or subsequent DWAI-Combination is a Class D felony.

Does a DWAI Count?

Convictions for all DWAIs count as convictions for alcohol- and drug-related driving convictions, according to the New York Department of Motor Vehicles. If an individual gets multiple alcohol/drug-related convictions within a certain number of years and commits a serious driving offense, they are at risk of permanent denial of their driver’s license. Such individuals also can be denied relicensing for periods in addition to the statutory revocation period.

Ignition Interlock Device May Be Required

In New York State, for any repeat alcohol or drug offense within five years, including a DWAI, a judge is required to order that the offender install an ignition interlock device (IID). The driver must install the IID on all vehicles that they own or operate. The system must be installed on each vehicle during the revocation period and any probation or conditional discharge period after that, according to the New York Department of Motor Vehicles. The judge is also required to order an alcohol assessment for a repeat offender. If the assessment indicates the offender must complete alcohol treatment, the offender must complete the treatment as a condition of probation or conditional discharge.

DWAIs and Drivers Under 21

A driver under 21 who drives with a BAC between 0.02 and 0.07 percent is in violation of New York State’s "zero tolerance" law. Such a driver will not be found to have committed a DWAI. They will face the penalty for a first violation, which is a $125 civil penalty, a driver’s license suspension for six months, and a $100 fee to terminate the driver’s license suspension. A driver who incurs a second zero tolerance law violation faces a $125 civil penalty, a driver’s license revocation for one year or until age 21, and a $100 re-application fee for their driver’s license, according to the New York Department of Motor Vehicles.

Chemical Test Refusal Penalties

A driver who refuses to submit to a chemical test requested by a police officer, like a blood or breath test, will not be found to have committed a DWAI. For a first chemical test refusal, an adult 21 or over will be required to pay a $500 civil penalty and suffer a driver’s license revocation of one year. For a second chemical test refusal within five years of a previous DWI-related charge, an adult must pay a $750 civil penalty and suffer a driver’s license revocation of 18 months. The revocation period extends to one year or age 21 for driver’s under 21.

For a chemical test refusal under the zero tolerance law, the driver must pay a $300 civil penalty, suffer a driver’s license revocation of at least one year, and also pay a $100 driver’s license re-application fee. For a second or subsequent chemical test refusal, the driver must pay a $750 civil penalty, suffer a driver’s license revocation of at least one year, and also pay a $100 driver’s license re-application fee. A revocation means a license to drive is voided and no longer exists. An individual must reapply to the New York Department of Motor Vehicles to get a new license once the revocation period is over.

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