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.

New York has two categories of impaired driving offenses:

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

DWAI in New York

DWAI offenses—which prohibit driving a vehicle while impaired—are further broken down in 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 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)

Penalties Imposed for 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

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. 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

Jail

15 days (maximum)

30 days (maximum)

180 days (maximum)

Fines

$300 to $500

$500 to $750

$750 to $1,500

License Suspension/ Revocation

90-day suspension

6-month revocation

6-month revocation

DWI, Drug-DWAI, and Combination-DWAI. 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

Jail

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)

Fines

$500 to $1,000

$1,000 to $5,000

$2,000 to $10,000

Community Service Work

None

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 Penalties

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

$500

$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.

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