Common Law DWI in New York: What to Expect, Penalties & Laws

A driving while impaired (DWI) charge in New York State can result in significant fines and possible jail time. It can also affect a driver's insurance rates and employment. There are two ways law enforcement provides evidence of drunk driving to the courts: through common law DWI and statutory DWI charges. Each gives information on a driver's level of intoxication, and a court will consider both as evidence.

According to Team Green Lawyers, law enforcement must have probable cause to believe a motorist has shown impairment before making an arrest. To come to a conclusion regarding a driver's intoxication, the arresting officer observes the operation of the vehicle as well as the driver's behavior using standard field sobriety tests, then makes an arrest once probable cause is found. Common law DWI and statutory DWI describe how law enforcement proves the charges.

A statutory DWI is the result of a conclusive chemical test. If the police officer administers the test as required, a court will accept it as evidence. If it shows impairment by the driver, no other results are needed to prove intoxication. Statutory DWI relies on chemical test results, while common law DWI relies on what the arresting officer observes.

​Read More:​ What Is the New York "Per Se" DWI Law?

Often, the general public uses the terms driving while intoxicated (DWI) and driving under the influence (DUI) interchangeably. A state can prefer one name over the other or use both, and the terms can have the same meaning or a different meaning depending upon their area of use. New York does not recognize DUI as a legal term – it solely uses DWI to define the operation of a motor vehicle or other craft while impaired by alcohol or drugs.

According to the Department of Motor Vehicles, New York classifies driving impairment in these ways:

• ​DWI (driving while intoxicated):​ A driver has a BAC (blood alcohol concentration) of 0.08 percent or higher.
  
• ​DWAI (driving while ability impaired):​ This charge is specific to the substance used by the driver. DWAI-Alcohol is the charge for driving with a BAC of 0.05 to 0.075 percent. DWAI-Drugs describes intoxication by illegal and prescription drugs. DWAI-Combination is a charge of driving under the combined influence of alcohol and drugs.
  
• ​AGG-DWI (aggravated DWI):​ A driver has a BAC of 0.18 percent or higher.

​Read More:​ What Is a DWAI in New York & How Is It Different From a DUI?

Even when there's no conclusive proof of blood alcohol concentration, an officer can still charge someone with drunk driving in New York. Occasionally, a driver will refuse to take a chemical test. In that event, the officer can use certain observations to prove intoxication, including:

• The driver's slurred speech.
• The smell of alcohol on the driver.
• The driver's bloodshot or red eyes.
• The driver's overall physical appearance.
• How the driver handles the motor vehicle.
• By reviewing the details of a possible accident.
• With an in-field sobriety test.

Chemical tests are not infallible. They sometimes lead to the wrong results, but law enforcement in New York mostly relies on them to prove impairment. Drivers who refuse chemical tests can face charges and penalties in addition to a regular DWI charge. Even if an acquittal occurs in a DWI case, the driver can still face penalties for refusing to take the chemical test.

​Read More:​ DUI/DWI & Commercial Driver's License (CDL) in New York: Consequences & Next Steps

Under New York state law, a licensed driver gives immediate and automatic consent by taking one of several types of BAC tests through blood, breath, saliva or urine. A driver has the right to refuse a test, and the state allows drivers to consult with an attorney beforehand. According to Legal Match, a driver refusing a test can face a six-month driver's license revocation and a civil fine of $300, both of which a court can use as evidence if there is “clear and convincing” evidence of test refusal. If a driver refuses a test within five years of a previous DWI charge, those penalties increase to a one-year license suspension and a $750 civil fine.

The courts consider a breathalyzer or chemical test to be valid evidence when an official administers it to the driver within two hours of the arrest in accordance with its standards. According to the Nave Law Firm, trained medical personnel, including doctors, nurses and EMTs perform blood tests, while police technicians can perform breath, urine and saliva tests. A driver charged with a DWI also has the right to request another independent chemical test.

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In New York, the severity of a DWI charge depends on the driver's BAC. If a driver has a low BAC and it's a first offense, the charge can be citation or misdemeanor and can result in $1,000 in fines, a year in jail, or both. A conviction can also result in up to three years of probation, revocation of the driver's license and registration for up to six months, a $395 or more surcharge, and a responsibility assessment of $250 annually for three years. The courts may mandate a driver to attend a victim impact panel and pay for and install an ignition interlock device in a vehicle for up to six months.

If the driver faces a DWI with a high BAC and injuries, or a second charge in less than 10 years from the first, that driver will face stiffer penalties and a possible felony charge.

For minor drivers charged with a DWI in New York, the state's Zero Tolerance Law applies. A driver with a BAC between 0.02 percent and 0.07 percent can receive a loss of driving privileges of up to six months and fines. The charge remains on the driver's record until the minor reaches age 21 or for three years, whichever is longer, according to the Nave Law Firm.

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