New York Aggravated DWI

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. 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").

An aggravated-DWI is punished more harshly than other impaired driving offenses.

New York's Aggravated DWI Penalties

The penalties imposed depend on which type of Aggravated-DWI the defendant is convicted of and whether the defendant has prior impaired driving convictions.

First 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 as the result of a first Aggravated-DWI conviction.

Second 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 ten years.

Jail and fines. A second conviction for Aggravated-DWI within ten 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 ten years is subject to an 18-month license revocation.

Third Conviction

If the defendant has two prior DWI, Aggravated-DWI, Drug-DWAI, or Combination-DWAI convictions within the past ten years, a third Aggravated-DWI is a Class D felony.

Jail and fines. A third Aggravated-DWI conviction within ten 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

Ignition interlock device. 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/drug screening, assessment, 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 of treatment for alcohol or drug abuse or dependency, the defendant must complete treatment as a condition of probation.

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