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Difference between Impaired (for a DWAI) and Intoxicated (for a DWI)

New York |

Can someone explain to me the difference in New York law between "impaired" under 1192(1) and "intoxicated" under 1192(3)?

I meant specifically the difference in terms of the level of impairment, not the distinctions between the charges.

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Attorney answers 3


The difference between the charges are fairly simple, but cannot merely be answered in a few sentences. For general purposes, 1192.1 is a violation while 1192.3 is not. Therefore, the punishment is less severe. A violation is not a "criminal conviction" that will result in a "criminal record." Generally, the VTL establishes that if you have a BAC of .08 or more, then you can be charged with DWI pursuant to section 1192.2. If you refuse to "blow," however, the police can still charge you with "Common Law DWI" or 1192.3. This offense is a DWI based not on your BAC, but the officer's observations that you were drunk. This may include slurred speech, bloodshot and watery eyes, unsteadiness, erratic driving, etc. This charge is much more difficult to prove than an 1192.2 because there is no scientific evidence of alcohol beyond the officer's observations. The 1192.1 is even less, but it is also a violation. If you need a further understanding of the differences, contact a NY criminal defense attorney.


Impaired is a reading of less than .08; it is a violation and not a crime; your license may be suspended for 90 days and comes back to you automaticlly after the suspension is over; max jail time is 15 days;

Intoxicated is .08 and over; it is a misdemeanor and will leave you with a permanent criminal record; you face one year in jail and three years of probation; your license may be revoked for six months;
If you refuse to take a breathalyzer, you will be charged under this section as well. With a refusla you can lose your license for a year.

Aggravated Intoxication is over .18; you can lose you license for a year and face stricter probation


"Impariment" laws are a loophole for prosecutors to try to convict everyone. You cannot say if someone is impaired for purposes of driving due to the vast difference in the pharmacokinetics of alcohol in different individuals without extensive testing. Some people are lightweights and some are not affected much by alcohol. To apply laws and bright line rules to the body chemistry that varies from person to person is absurd!!!!!!