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Driving While Intoxicated (DWI) in New York State

While everyone knows that drinking and driving is a crime, many are surprised to learn that there are numerous alcohol related crimes under New York State law. Section 1192 of the Vehicle and Traffic Law outlines the various alcohol and/or substance related driving offenses in New York State.

Driving While Ability Impaired by Alcohol (NY VTL § 1192 [1])

A person may be charged with Driving While Ability Impaired by Alcohol (DWAI) if he or she operates a motor vehicle when his or her ability has been impaired by the consumption of alcohol. DWAI is NOT a criminal offense. While there are harsh penalties associated with this offense, it is classified as a traffic violation. Therefore, a conviction for DWAI is not a criminal conviction in New York State.

Driving While Intoxicated Per Se (NY VTL§ 1192 [2])

A person may be charged with Driving While Intoxicated (DWI) Per Se if he or she operates a motor vehicle with a blood alcohol content of 0.08% or more. Generally, DWI is a misdemeanor in New York State; however, it should be noted that individuals with prior alcohol-related convictions may face felony charges for having multiple convictions.

Aggravated Driving While Intoxicated (NY VTL§ 1192 [2-a])

A person may be charged with Aggravated Driving While Intoxicated (ADWI) if he or she operates a motor vehicle with a blood alcohol content of 0.18% or more. Generally, ADWI is a misdemeanor in New York State; however, the fines and penalties associated with it are more severe than DWAI and DWI.

Driving While Intoxicated (NY VTL§ 1192 [3])

This category of DWI is sometimes referred to as the “common law” DWI. A person may be charged with common law DWI if he or she operates a motor vehicle in an “intoxicated condition.” Unlike DWI Per se, which is based on the motorist’s Blood Alcohol Content (BAC), Common law DWI is based on the arresting officer’s observations of an individual operating a motor vehicle while in an intoxicated condition. Oftentimes, an individual who refuses to submit to a chemical test will be charged with Common Law DWI.

Driving While Intoxicated With a Child - (NY VTL§ 1192 [2a-b]

If an individual is charged with an alcohol related offense (DWI, ADWI) and there was a child (age fifteen or younger) in the vehicle at the time of the offense, the charge will constitute a felony (even on a first offense).

You can find out more about DWI Charges in New York State, and the associated penalty guidelines by visiting the DWI Charges page of our website.

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