Third DWI/DWAI Offense in New York

The administrative and criminal penalties for third DWI and DWAI convictions in New York.

By , Attorney · Thomas Jefferson School of Law

In New York, impaired driving offenses include:

  • Alcohol-DWAI. Driving a vehicle while "ability impaired" by the consumption of alcohol is called "alcohol-DWAI."
  • Drug-DWAI. Driving a vehicle while "ability impaired" by the use of a drug is called "drug-DWAI."
  • Combination-DWAI. Driving a vehicle while "ability impaired" by the use of a combination of alcohol and drugs is referred to as "combination-DWAI."
  • Driving a vehicle while in an "intoxicated condition" is known as "DWI."
  • DWI per se. Driving a vehicle with a blood alcohol content (BAC) of .08% or more (.04% or higher for drivers of commercial vehicles) is called "DWI per se."
  • Aggravated-DWI. Driving a vehicle with a BAC of .18% or more or driving intoxicated with a passenger who's 15 years of age or younger is referred to as "aggravated-DWI."

For DWAI offenses, the relevant standard is whether the motorist's ability to operate a vehicle as a "reasonable and prudent" driver is impaired to "any extent." A defendant with a BAC of .07% or more but less than .08% is presumed to be impaired.

DWI requires proof of a greater level of impairment than DWAI. Under New York's DWI law, an "intoxicated condition" means impairment to the extent that the defendant is unable to employ the physical and mental abilities to operate a vehicle as a "reasonable and prudent" driver.

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

Generally, a DWI or DWAI is considered a third offense if the driver has two prior impaired driving convictions that occurred within the past 10 years. However, if one of the priors was within the past five years, it can affect the penalties you'll face on a third conviction.

Are Third DWI and DWAI Convictions Misdemeanors or Felonies in New York?

An alcohol-DWAI conviction is a misdemeanor if the defendant has been convicted of two or more impaired driving offenses within the preceding 10 years.

A third conviction within 10 years for DWI per se, DWI, drug-DWAI, or combination-DWAI is a class D felony.

Penalties for Third Alcohol-DWAI Convictions in New York

A defendant who's convicted of an alcohol-DWAI and has two DWI or DWAI convictions within the previous ten years faces the following penalties:

  • a maximum sentence of 180 days in jail and/or a fine of $750 to $1,500, and
  • a six-month license revocation.

Defendants who haven't been convicted of any DWI or DWAI offense within the past five years are generally eligible to participate in a drug and alcohol rehabilitation program. Participation in the program typically makes defendants eligible for a conditional license.

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

Jail and Fines

A third conviction for DWI, drug-DWAI, or combination-DWAI within 10 years carries a sentence of one to seven years in prison and/or a fine of $2,000 to $10,000. A defendant who's convicted of DWI or DWI per se three times within a five-year period faces a mandatory minimum sentence of ten days in jail.

Community Service Work

The judge can require the defendant to perform 60 days of service for a public or nonprofit organization as an alternative to the jail time imposed for a third DWI conviction within five years.

License Revocation

A defendant who has three impaired driving convictions, refusals, or a combination of convictions and refusals within a four-year period is subject to permanent license revocation. However, the DMV can waive the permanent revocation after five years if the defendant:

  • doesn't refuse a chemical test during the five-year revocation period
  • isn't convicted of any DWI or DWAI offense during the five-year revocation period, and
  • provides documentation of successful completion of a rehabilitation program.

A defendant can obtain a conditional license after a mandatory revocation period of three years.

Ignition Interlock Device

A defendant who's convicted of DWI or DWI per se for a third time within five years must install and maintain an ignition interlock device (IID) in any vehicle that he or she owns or operates. 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 Suspension and Revocation for a Third DWI in New York

Under New York's implied consent law, a driver is deemed to have given consent to a chemical test if there are reasonable grounds to believe he or she is driving in violation of the state's DWI or DWAI laws.

At the arraignment (the first court appearance), 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 continues while the criminal prosecution is pending. Offenders who refused to take a chemical test have a right to have a DMV hearing. If the hearing officer finds the driver unlawfully refused testing, 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.

Offenders who didn't refuse a chemical test are eligible for a "conditional license" or "hardship privilege" if the prior impaired driving conviction occurred more than five years before the current charge. These licenses allow driving to certain locations for approved activities during the administrative suspension or revocation period.

Talk to an Attorney

It's basically never a good idea to represent yourself in a DWI case. If you've been arrested for driving while intoxicated, you should get in contact with an experienced DWI lawyer who can help you.

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