New York DWI and DWAI Laws and Penalties

New York has two categories of impaired driving offenses:

• driving while ability impaired ("DWAI"), and
• driving while intoxicated ("DWI").

These two offenses have slightly different definitions and, in some circumstances, carry different penalties

DWAI in New York

DWAI offenses—which prohibit driving a vehicle while impaired—are further broken down into three categories:

• Alcohol DWAI
• Drug DWAI, and
• Combination DWAI (the use of a combination of alcohol and drugs).

(N.Y. Veh. & Traf. Law § 1192 (2025).)

For purposes of New York's DWAI law, "ability impaired" means impairment to "any extent" of a driver's physical and mental abilities. A defendant with a blood alcohol content (BAC) of .07% or more but less than .08% is presumed to be DWAI. However, if the defendant's BAC is .05% or less, it's presumed that the driver's abilities to operate a vehicle weren't impaired. (People v. Cruz, 399 N.E.2d 513 (N.Y. 1979); N.Y. Veh. & Traf. Law § 1195 (2025).)

DWI in New York

DWI requires proof of a greater level of impairment than DWAI. New York's DWI law defines "intoxicated condition" as an impairment to the extent that the defendant is unable to employ the physical and mental abilities that a "reasonable and prudent" driver should possess. (People v. Cruz, 399 N.E.2d 513 (N.Y. 1979).)

There are two types of DWI offenses:

• driving a vehicle in an "intoxicated condition" is called "DWI," and
• driving a vehicle with a BAC of .08% or more is called "DWI per se."

(N.Y. Veh. & Traf. Law § 1192 (2025).)

Operating a commercial vehicle with a BAC of .04% or more is also a DWI in New York. A motorist who is younger than 21 can be charged under New York's zero tolerance law (see below) for driving with a BAC of .02% or more. (N.Y. Veh. & Traf. Law §§ 1192, 1192-A (2025).)

New York also considers a DWI to be an aggravated DWI if:

• a child who is 15 or younger is in the vehicle, or
• the motorists BAC is .18% or more.

Aggravated DWIs have more severe penalties than regular DWIs. (N.Y. Veh. & Traf. Law § 1192 (2025).)

Can You Be Convicted of DWI or DWAI Without Driving?

New York prohibits operating a vehicle while intoxicated or impaired. A person doesn't have to put the vehicle into motion to be convicted of DWI or DWAI. New York courts define operating as intentionally doing any act or making use of the vehicle's mechanical or electrical systems to set the vehicle in motion. (People v. Prescott, 745 N.E.2d 1000 (N.Y. 2001).)

Criminal Penalties for DWI and DWAI Convictions

An impaired driving charge typically leads to administrative (license-related) penalties. And if the offender is convicted of DWI or DWAI in court, criminal penalties are also imposed.

Criminal penalties depend on the type of offense and whether the defendant has prior impaired driving convictions. Generally, penalties are less severe for Alcohol-DWAI convictions than for DWI, Drug-DWAI, and Combination-DWAI convictions. Additionally, penalties typically increase if the defendant has any prior impaired driving convictions.

Alcohol-DWAI Penalties

First and second Alcohol-DWAI offenses are infractions, and a third Alcohol DWAI is a misdemeanor. It's considered a second Alcohol-DWAI conviction if the defendant has been convicted of any DWI or DWAI offense within the past five years. A defendant who has 2 or more impaired driving convictions within the preceding 10 years will face third offense penalties. (N.Y. Veh. & Traf. Law §§ 1192, 1193 (2025).)

The chart below details the minimum and maximum penalties for first, second, and third Alcohol-DWAI convictions.

(N.Y. Veh. & Traf. Law §§ 1192, 1193 (2025).)

DWI, Drug-DWAI, and Combination-DWAI Penalties

First convictions for DWI, Drug-DWAI, and Combination-DWAI are misdemeanors. Second and third convictions within 10 years are felonies. Defendants who commit a second or third DWI within a five-year period are subject to additional mandatory penalties. The court also will impose a period of probation for DWI offenses and may impose probation for DWAI offenses. (N.Y. Veh. & Traf. Law §§ 1192, 1193 (2025).)

Defendants face the following minimum and maximum penalties for first, second, and third DWI, Drug-DWAI, and Combination-DWAI convictions:

(N.Y. Veh. & Traf. Law §§ 1192, 1193 (2025).)

Administrative License-Related Penalties for DWIs and DWAIs

New York's implied consent law requires all drivers to submit to breath, blood, urine, and/or saliva testing if an officer has reasonable grounds to believe the motorist is in violation of the DWI or DWAI laws. Motorists who refuse testing face the following penalties:

(N.Y. Veh. & Traf. Law § 1194 (2025).)

The court will also suspend the license of any driver who:

• had a BAC of .08% or more at the time of arrest, or
• is charged with DWI per se, DWI, Drug-DWAI, or Combination-DWAI and has a prior impaired driving conviction within the past five years.

The suspension begins at the arraignment and continues for the duration of the criminal prosecution. (N.Y. Veh. & Traf. Law § 1194 (2025).)

Additional Penalties Imposed for Impaired Driving Convictions

All DWI and DWAI offenders are generally subject to the following additional penalties:

• completion of an alcohol and drug screening and assessment
• completion of a substance abuse treatment program (if the screening and/or assessment indicate that the defendant is abusing or dependent on alcohol or drugs)
• attendance at a victim impact panel (VIP), and
• a driver responsibility assessment of $250 per year for three years.

Failure to complete the substance abuse screening, assessment, treatment, or VIP can result in probation violations and, ultimately, additional jail time and fines. Defendants who fail to pay the driver responsibility assessment face an additional license suspension until payment is made in full. (N.Y. Veh. & Traf. Law §§ 1193, 1199 (2025).)

Is a DWI a Felony in New York?

Several scenarios can elevate a DWI or DWAI to a felony in New York.

Prior Convictions Can Make a DUI a Felony in New York

As discussed above, a second or subsequent DWI or impaired driving offense involving drugs is a felony if the offender has at least 1 prior conviction within the past 10 years. (N.Y. Veh. & Traf. Law §§ 1192, 1193 (2025).)

School Bus and Commercial Drivers' DWIs Are Felonies in New York

A school bus driver who's caught operating a bus while under the influence with at least one student passenger will face class E felony charges. It's also a class E felony to operate certain commercial vehicles while under the influence. (N.Y. Veh. & Traf. Law §§ 1192, 1193 (2025).)

DWIs With Minors in the Vehicle Are Felonies in New York

A DWI involving a minor passenger who's younger than 15 is a class E felony. (N.Y. Veh. & Traf. Law §§ 1192, 1193 (2025).)

Felony Charges for DWIs Involving Injuries and Deaths

Causing serious injuries to another person while driving under the influence is "vehicular assault." Generally, vehicular assault is a class E felony. (N.Y. Penal Law § 120.03 (2025).)

A DWI offender who ends up killing someone can be charged with vehicular manslaughter, which is generally a class D felony. (N.Y. Penal Law § 125.12 (2025).)

New York's Zero-Tolerance Underage DWI Law

New York has stricter standards for drivers who are under the legal drinking age. An underage DWI carries different penalties than standard DWI convictions.

DWI Standards for Underage Drivers

New York's underage drunk driving law prohibits drivers who are younger than 21 years from operating a vehicle after consuming alcohol. Underage drivers who aren't intoxicated enough to be charged with DWI or DWAI can be charged with driving with a BAC of at least .02% but less than .08%. (N.Y. Veh. & Traf. Law § 1192-A (2025).)

Zero-Tolerance DWI Penalties

A motorist found guilty of violating New York's underage per se law will face a six-month license suspension and have to pay a $125 civil penalty. However, most of these motorists will be able to get a conditional license (generally, for driving to and from work and school) if they participate in the "Impaired Driver Program," formerly called the "Drinking Driver Program." (N.Y. Veh. & Traf. Law §§ 1193, 1194-A, 1196 (2025).)

A violation of the underage per se law is considered a second offense if the motorist has a prior underage per se law violation or DWI/ DWAI conviction. A second offense carries a license suspension of 1 year or until the driver turns 21 years old—whichever is longer—and a $125 civil penalty. Drivers found guilty of a second offense won't be eligible for the Impaired Driving Program or a conditional license. (N.Y. Veh. & Traf. Law §§ 1193, 1194-A, 1196 (2025).)

Getting Help From an Attorney

Regardless of the type of charge, it's always best to talk to an experienced DWI attorney if you've been cited for DWI or DWAI. A qualified lawyer can tell you how the law applies to your situation and help you decide on the best course of action.