Second DWI or DWAI Offense in New York

In New York, there are two broad categories of impaired driving offenses: driving while ability impaired ("DWAI") and driving while intoxicated ("DWI"). Within these categories, there are multiple types of impaired driving offenses that carry different penalties. Motorists are prohibited from driving a vehicle:

• while their abilities are impaired by the consumption of alcohol ("alcohol-DWAI")
• while their abilities are impaired by the use of a drug ("drug-DWAI")
• while their abilities are impaired by the use of a combination of alcohol and drugs ("combination-DWAI")
• while in an "intoxicated condition" ("DWI")
• with a blood alcohol content (BAC) of .08% or more (.04% or higher for drivers of commercial vehicles) ("DWI per se"), and
• with a BAC of .18% or more or driving intoxicated with a passenger who's 15 years of age or younger ("aggravated DWI").

The difference between DWI and DWAI is a matter of degree: DWI generally requires proof of a greater level of impairment than DWAI.

What's Considered a Second DWI or DWAI in New York?

For most purposes, a DWI or DWAI is considered a second offense if the driver has any impaired driving convictions that occurred within the past five years. However, if the current offense is DWI per se, DWI, drug-DWAI, or combination-DWAI, a prior conviction within the past 10 years will elevate the current offense to a class E felony.

Penalties for Second Alcohol-DWAI Convictions in New York

A defendant who's convicted of an alcohol-DWAI after having been convicted of any DWI or DWAI offense within the past five years faces the following penalties:

• a maximum sentence of 30 days in jail and/or a fine of $500 to $750, and
• a six-month license revocation.

Some defendants who participate in a drug and alcohol rehabilitation program can obtain a conditional license. However, defendants who have been convicted of any impaired driving offense within the past five years aren't eligible for the program.

Penalties for Second DWI, Drug-DWAI, and Combination-DWAI Convictions in New York

Jail and fines. A second conviction for DWI, drug-DWAI, or combination-DWAI within ten years carries a sentence of one to four years in prison and/or a fine of $1,000 to $5,000. If a second DWI conviction is within five years of the first DWI conviction, the defendant faces a mandatory minimum sentence of five days in jail.

Community service work. As an alternative to the jail time imposed for a second DWI within five years, the judge can require the defendant to perform 30 days of service for a public or nonprofit organization.

License revocation. For a second conviction of DWI, drug-DWAI, or combination-DWAI within a period of ten years, the defendant is subject to a one-year license revocation. A defendant can typically obtain a conditional license after enrolling in a rehabilitation program if the prior impaired driving conviction occurred more than five years before the current offense.

Ignition interlock devices. A defendant who's convicted of DWI or DWI per se for a second time within five years must install and maintain an ignition interlock device (IID) in any vehicle that he or she owns or operates. Defendants are typically responsible for the installation and maintenance costs of the device. The IID must remain installed for the duration of the license revocation period and for an additional period as determined by the judge.

Administrative License-Related Penalties for a Second New York DWI or DWAI

A DWI or DWAI arrest can lead to administrative license penalties even without a criminal conviction.

License suspension and revocation. A driver is deemed to have given consent to a chemical test if an officer has reasonable grounds to believe he or she is driving in violation of the state's impaired driving laws. Under New York's implied consent law, the court will suspend the license of any driver who:

• is charged with DWI per se, DWI, or combination-DWAI and had a BAC of .08% or more at the time of arrest
• is charged with DWI per se, DWI, drug-DWAI, or combination-DWAI and has been convicted of any impaired driving offense within the past five years, or
• refused to take a chemical test.

The suspension begins at the first court appearance (usually the arraignment) and continues while the criminal prosecution is pending. The suspension for refusing to submit to a chemical test continues pending the outcome of a Department of Motor Vehicles (DMV) hearing. If the refusal is confirmed at the hearing, the DMV will revoke the offender's license. The revocation is for 18 months if within the preceding five years the offender:

• had a prior license revocation for refusing to take a chemical test, or
• was convicted of any DWAI or DWI offense.

Some offenders can obtain a "conditional license" or "hardship privilege," which allows driving for certain activities during the administrative suspension or revocation period. However, offenders who refused a chemical test or have been convicted of an impaired driving offense within the previous five years generally aren't eligible for any driving privileges.

Civil penalty. If within the previous five years, it's the offender's second or subsequent license revocation for refusing a chemical test or second impaired driving conviction, the DMV imposes a $750 penalty.

Talk to an Attorney

The penalties resulting from a DWI or DWAI are serious, so it's important to have legal counsel. A qualified DWI attorney can review your case and help you decide on the best way to handle your situation.