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DWI / DWAI (Driving While Intoxicated – Driving With Ability Impaired)
It is always best to avoid driving after drinking any amount of alcolhol, however small.
DID YOU KNOW …
• It is not illegal to drive after drinking in New York State, but it is illegal to drive with a blood alcohol content of .05 or more (and our advice is always to not drive after drinking any amount of alcohol, however small). Here's how to estimate your BAC (blood alcohol content) (Opens in new window. Courtesy of Intoximeters Inc.)
• The billboards that read, ".08 – Don't Blow It" are misleading.The general rule of thumb is that a police officer will arrest anyone for driving with ability impaired whose blood alcohol content (BAC) is .05 to .07. DWAI is a violation, while .08 and above on a first offense is Driving While intoxicated – a misdemeanor (see below).
• The so-called "field tests" used by police can be highly unreliable, especially if administered improperly. One study shows that 46% of the population cannot pass these tests even in the complete absence of any alcohol in their systems.
• The "alco-sensor" (the hand held breath test that is administered on the roadside) is not considered a scientifically reliable device for determining intoxication and it's results are not admissible before a jury for that purpose.
• There is a margin of error in all of the devices used to measure blood alcohol content. Those devices can sometimes be affected by factors such as close proximity of radio waves from police radios, the presence of alcohol in the test taker's mouth (including dentures) and an assortment of other factors not the least of which are the qualifications and skill of the test administrator.
• The law requires a mandatory suspension of a suspect's driving privileges upon arraignment (first appearance at court) if there is a certified breath test in the court's file indicating a blood alcohol content of .08 or more. Hardship licenses are available under some circumstances.
• For suspects who already have one alcohol related conviction on their record, there are circumstances that require mandatory suspension of driving privileges pending prosecution regardless of the blood alcohol content.
• Penalties in New York State for DWI (felony level) under the Vehicle and Traffic Law can range from minimum fines of $300.00 to maximum fines of $10,000.00, and from 15 days in jail to up to 7 years in prison (see description of penalties below).
• The police must have a reasonable suspicion to stop your vehicle and then have probable cause to make the arrest. If either of those factors are missing, the rest of the prosecution's case becomes invalid.
Volumes can and have been written about Driving While Intoxicated. DWI cases can often be complex in terms of both constitutional, statutory and scientific issues. Driving while Intoxicated (DWI) is an unclassified misdemeanor under the Vehicle and Traffic Law (Section 1192[2][3]). Subdivision 4 of 1192 is Driving with Ability Impaired – Drugs, also an unclassified misdemeanor.
Misdemeanor offenses are punishable by up to one year in jail, a $500-1,000 fine, mandatory state surcharges, and six months revocation of driving privileges. Driving with Ability Impaired (1192[1]-DWAI) is a traffic offense punishable by a minimum of a $300 fine to a maximum of $500, up to fifteen days in jail, mandatory state surcharge and a ninety day suspension of driving privileges.
A new offense, Aggravated DWI, is now on the books. To be guilty of Aggravated DWI, a driver has to have a BAC of .18 or more. Penalties for a conviction for Aggravated DWI (first offense) can be a fine of between $1,000 and $2,500, up to a year in jail, or both. Probation is also a possibility. A first offender driver's license will be revoked for one year.
Other than the DWAI violation and the misdemeanor level DWI, there are two levels of felony DWI. A class E felony is punishable by a maximum of 1 1/3 to 4 years; class D felony by a maximum of 2 1/3 to 7. Fines can range from $1,000 to $10,000. In New York State, in order to be charged with a felony for DWI, one must have a prior misdemeanor or felony conviction within ten year of the new charge.
Aside from the danger to one's liberty and the mandatory fines and loss of license, conviction forthese offenses can also result in a large hike in insurance rates, mandatory fees from the Department of Motor Vehicles, with said fees being levied for up to three years after conviction.
Among the essential differences between DWI and DWAI is that DWI is a crime whereas DWAI is a traffic offense.
The police need a "reasonable suspicion" to stop a motor vehicle. Your car cannot be stopped simply because the police have an unfounded suspicion or are having a slow night. Once reasonable suspicion has been established, they then need probable cause to make the arrest. Among the factors the police use for probable cause are their observations of the driver and so-called "field tests". It is interesting to note that some studies have found that nearly half the population cannot pass these field tests even with no alcohol in their systems.
From a defense point of view, there are many ways to attack the legality of the stop of a motor vehicle. The same can be said for attacking the factors alleged to contribute to probable cause for the arrest. Finally, there is the "breathalyzer" or chemical test (including blood test) that the police have come to rely upon heavily to prove their case. The accuracy of the machines used by the police depends upon their proper maintenance, calibration, and how the test was actually performed and administered by the police. These cases are, by no means, open and shut for the prosecution. Depending upon the efficiency of the police or what mistakes they may have made, it is quite possible for someone who is not intoxicated to be charged with and even convicted of these offenses if a proper defense is not put forward.
The so-called "Field Sobriety Tests" (more properly referred to simply as Field Tests) are also susceptible to attack. One study revealed that 46% of the population cannot pass these tests even in the complete absence of any alcohol in their systems. Many police officers don't pay attention to the protocols when administering Field Tests, and so have the suspect perform them improperly or in the wrong manner or conditions. This impacts upon the reliability of the tests.
When considering the criminal liability, the civil fines imposed by the Department of Motor Vehicles, the jeopardy to one's license, and the stigma attached to these offenses, it is vital that a citizen not simply plead guilty to these offenses without proper legal consultation and representation. Kurt's experience both as a prosecutor and as defense attorney enable him to "turn the chess board around" and review the case in terms of weakness and strength from both the prosecution's perspective and that of the defense.
For more information visit the NYS Department of Motor Vehicles.
DWI--out of state residents and DWI in New York
Your home jurisdiction can and usually will take reciprocal action against your driver's license if you are driving in New York State and are convicted of DWI on your home state's license. Sometimes, an out of state driver's home state will take more severe action against that driver's license than New York. New York cannot take a foreign jurisdiction's driver's license, but can suspend/revoke privileges in New York State and impose fines. Frequently, the home state will take stronger action in terms of revocations and suspensions than New York.
For more information and to read about interstate Driver Compacts, visit www.aamva.org.
*Prior results do not stand as a guarantee or are not necessarily indicative of future results.
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