New York DWI and DWAI Laws and Penalties

Learn about New York DWI law and the consequences of a conviction, including fines, jail time and license suspension.

By , Attorney · Thomas Jefferson School of Law

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).

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.

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.

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."

Motorists can also commit a DWI offense with the following BAC levels:

Under 21 years of age

.02% or more

Commercial drivers

.04% or more

All motorists

.18% or more (aggravated DWI)

Types of Penalties for DWI and DWAI Convictions in New York

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 for DWI and DWAI Conviction in New York

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.

New York's 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 will face third offense penalties if he or she has two or more impaired driving convictions within the preceding ten years.

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

1st Offense

2nd Offense

3rd Offense


15 days (maximum)

30 days (maximum)

180 days (maximum)


$300 to $500

$500 to $750

$750 to $1,500

License Suspension/ Revocation

90-day suspension

6-month revocation

6-month revocation

New York's DWI, Drug-DWAI, and Combination-DWAI Penalties

First convictions for DWI, Drug-DWAI, and Combination-DWAI are misdemeanors. Second and third convictions within ten years are felonies. Defendants who commit a second or third DWI within a five-year period are subject to additional mandatory penalties.

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

1st Offense

2nd Offense

3rd Offense


Maximum: 1 year

1 to 4 years

Minimum: 5 days (if second DWI conviction is within a 5-year period)

1 to 7 years

Minimum: 10 days (if third DWI conviction is within a 5-year period)


$500 to $1,000

$1,000 to $5,000

$2,000 to $10,000

Community Service Work


30 days (as an alternative to the minimum jail time)

60 days (as an alternative to the minimum jail time)

License Revocation

6 months

1 year (if second conviction is within 10 years)

Permanent (if third conviction is within 4 years) but possible waiver after 5 years

Ignition Interlock Device

6 months to 1 year (for DWI convictions)

For the duration of the revocation period and for an additional period (if second DWI within 5 years)

For the duration of the revocation period and for an additional period (if third DWI is within 5 years)

Administrative License-Related Penalties for DWIs and DWAIs in New York

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:

1st Offense

2nd Offense

3rd Offense

License Revocation

1 year

18 months

18 months

Civil Penalty


$750 (if second revocation for refusing a test or second DWI or DWAI within 5 years)

$750 (if second revocation for refusing a test or second DWI or DWAI within 5 years)

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.

Additional Penalties Imposed for Impaired Driving Convictions in New York

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.

There a several scenarios that can elevate a DWI or DWAI to a felony in New York.

Prior Convictions Can Make a DUI a Felony in New York

Generally, a second DWI or second impaired driving offense involving drugs is a class E felony if the offender has at least one prior conviction within the past ten years.

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.

DWIs With Minors in the Vehicle Are Felonies in New York

A DWI involving a minor passenger who's under the age of 15 is a class E felony.

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.

A DWI offender who ends up killing someone can be charged with vehicular manslaughter, which is generally a class D felony.

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

New York's 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. However, the law gives underage drivers a little leeway by setting the BAC limit at .02%. So, underage drivers can be charged with a violation if caught driving with a BAC of at least .02% but less than .08%.

New York's Zero-Tolerance DWI Penalties

A motorist found guilty of violating New York's underage per se law will face a six-month license 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."

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 one 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.

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