New York's Aggravated DWI Laws and Penalties

In New York, impaired driving offenses generally fall into one of two categories: driving while ability impaired ("DWAI") and driving while intoxicated ("DWI"). DWAI offenses prohibit driving a vehicle while your ability is impaired by the:

• consumption of alcohol ("alcohol DWAI")
• use of a drug ("drug DWAI"), or
• use of a combination of alcohol and drugs ("combination DWAI").

New York's DWI law prohibits driving a vehicle in an "intoxicated condition" or with a blood alcohol concentration (BAC) of .08% or more. (N.Y. Veh. & Traf. Law §1192 (2024).)

The penalties for driving under the influence are more severe when certain aggravating factors are present. Below, we explain how New York defines "aggravated DWI" and how this designation affects the penalties.

What Is Considered an "Aggravated" DWI in New York?

A DWI can be charged as an aggravated DWI if the motorist operates a vehicle:

• with a BAC of .18% or more ("aggravated DWI per se"), or
• with a passenger who's 15 years of age or younger and commits DWI, drug DWAI, or combination DWAI ("aggravated DWI with a child passenger").

In the eyes of the legislature, these factors make a DWI more serious and warrant harsher punishment. (N.Y. Veh. & Traf. Law §1192 (2024).)

When Is an Aggravated DWI a Felony?

All second and subsequent aggravated DWIs are felonies. A first aggravated DWI is a felony only if it involves a child passenger.

What Are New York's Aggravated DWI Penalties?

The penalties depend on which type of aggravated DWI the defendant is convicted of and whether the defendant has prior impaired driving convictions. (N.Y. Veh. & Traf. Law §1193 (2024).)

First Aggravated DWI Conviction

A first conviction for aggravated DWI per se is a misdemeanor. However, a first conviction for aggravated DWI with a child passenger is a class E felony.

Jail and fines. The maximum jail sentence for a first conviction for aggravated DWI per se is one year. In addition to or instead of a jail sentence, the judge can impose a fine of $1,000 to $2,500. A first conviction for aggravated DWI with a child passenger carries a sentence of one to four years in prison and/or a fine of $1,000 to $5,000.

License revocation. A defendant's license will be revoked for one year for a first aggravated DWI conviction.

Second Aggravated DWI Conviction

Both types of aggravated DWI are considered second convictions and class E felonies if the defendant has a prior DWI, aggravated DWI, drug DWAI, or combination DWAI within the previous 10 years.

Jail and fines. A second aggravated DWI conviction within 10 years carries a sentence of one to four years in prison and/or a fine of $1,000 to $5,000.

License revocation. A defendant who's convicted of a second aggravated DWI within a period of 10 years is subject to an 18-month license revocation.

Third Aggravated DWI Conviction

If the defendant has two prior DWI, aggravated DWI, drug DWAI, or combination DWAI convictions within the past 10 years, a third aggravated DWI is a class D felony.

Jail and fines. A third aggravated-DWI conviction within 10 years carries a sentence of one to seven years in prison and/or a fine of $2,000 to $10,000.

License revocation. A defendant who has three impaired driving convictions, refused to take a chemical test three times, or a combination of three convictions and refusals within a four-year period is subject to permanent license revocation. The Department of Motor Vehicles (DMV) can waive the revocation after five years if the defendant:

• doesn't refuse a chemical test during the five-year revocation period
• isn't convicted of any impaired driving offense during the five-year revocation period, and
• successfully completes an alcohol and drug rehabilitation program.

The defendant can obtain a conditional license after a mandatory revocation period of three years.

Additional Penalties for All Aggravated DWI Convictions

Certain penalties can come into play with all aggravated DWI convictions.

Ignition Interlock Devices

All aggravated DWI convictions carry an ignition interlock device (IID) requirement. A defendant must install an IID in any vehicle he or she owns or operates during the term of probation or conditional discharge. The IID requirement generally continues for a minimum of one year. However, in some circumstances, the defendant can remove the IID after six months.

Alcohol and Drug screenings, Assessments, and Treatment

A defendant who's charged with a first violation of aggravated DWI with a child passenger and his or her BAC was less than .15% must submit to a screening for substance abuse and dependency.

The defendant must undergo a formal alcohol/drug abuse and dependency assessment if:

• the alcohol/drug screening indicates that the defendant is abusing or dependent on alcohol or drugs
• the defendant is charged with aggravated DWI per se, or
• the defendant is charged with aggravated DWI with a child passenger and his or her BAC was .15% or more.

If the assessment indicates a need for treatment for alcohol or drug abuse or dependency, the defendant must complete treatment as a condition of probation.

Victim Impact Programs

All DWI and DWAI offenders generally must attend a victim impact program (VIP). The VIP is a single session of presentations regarding the impacts of driving while under the influence of alcohol or drugs.

Driver Responsibility Assessments

All defendants convicted of any impaired driving offense must pay a driver responsibility assessment of $250 for three years.