Second DWI or DWAI Offense in New York

The administrative and criminal penalties for second DWI and DWAI convictions 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.

Administrative Penalties

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.

Criminal Penalties

In addition to administrative penalties, there are criminal penalties if the defendant is convicted of DWI or DWAI in court. The criminal penalties imposed for a second DWI or DWAI conviction depends on the type of offense the defendant is convicted of and whether the defendant has prior impaired driving convictions.

A second Alcohol-DWAI conviction is a traffic infraction. However, the penalties are more severe if the defendant has a prior conviction for any impaired driving offense within the past five years. A second conviction within ten years for DWI per se, DWI, Drug-DWAI, or Combination-DWAI is a class E felony.

Penalties for Second Alcohol-DWAI Convictions

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

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 from the current offense.

Ignition interlock device. 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.

Additional Penalties for Second DWI and DWAI Convictions

Alcohol/drug screening, assessment, and treatment. DWI and DWAI offenders generally must submit to an alcohol/drug screening and assessment. If the screening and assessment indicate that the defendant is abusing or dependent on alcohol or drugs, the court will require completion of a treatment program as a condition of probation.

Victim impact program. All defendants convicted of any DWI or DWAI offense are typically required to attend a victim impact program (VIP). The program consists of presentations regarding the impacts of driving a vehicle while under the influence of alcohol or drugs.

Driver responsibility assessment. All defendants who either refused to take a chemical test or are convicted of any impaired driving offense must pay a driver responsibility assessment of $250 per year for three years. Failure to pay the assessment results in a license suspension, which remains in effect until payment is made in full.

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