Written by attorney Jason Lloyd Stern

DWAI Plea Bargains: A New York City Overview

What is DWAI?

In the State of New York, Driving While Ability Impaired -- DWAI (1192.1) -- is a violation that is charged when the driver of a vehicle produces a Breathalyzer result that measured one's Blood Alcohol Content (BAC) as greater than 0.05 and less than 0.08 or when the driver of a vehicle is operating the vehicle under the influence of drugs. Unlike DWI, DWAI is not a misdemeanor or felony -- it is a violation. This Guide addresses the alcohol-based DWAI charge.

That being said, a DWAI charge should be taken just as seriously as a DWI for several reasons: First of all, a DWAI conviction carries a mandatory 90-day license suspension.

To be convicted of DWAI, the prosecution does not need to prove that the driver of the vehicle was intoxicated. The prosecution merely needs to prove (beyond a reasonable doubt) that the driver's ability to operate the vehicle was somehow impaired. Proving impairment versus intoxication is a far easier task for the prosecution but it is not without its own difficulties.

DWAI and Plea Bargains in New York City

Winning a DWAI case in New York City (Manhattan, Bronx, Brooklyn, Queens) nearly always means going to trial. This is because of the long-held policy in New York City by the various District Attorneys' offices of refusing to plea bargain a DWAI case. In other words, when a client is facing a DWAI case in NYC, 99% of the time, the DA's office will only allow a defendant to plead to the original DWAI charge. Clearly, there is no benefit to the client of pleading guilty to the original charge and one could certainly question the lawyer's commitment to zealous representation of one's client if an attorney were to accept such a 'deal'.

A New York criminal defense attorney's best chance to obtain a favorable plea would be a combination of a low blow (0.05, as opposed to 0.06 or 0.07) and extremely favorable character references. Recently, I was able to secure a favorable deal in New York City for a client who blew a 0.054 on the Breathalyzer and was recently honorably discharged from combat in Afghanistan. After presenting the Supervising District Attorney with my client's military record and list of awards, the DA agreed to a conditional discharge in which all charges would be dropped after my client completed a series of DWI-related educational programs. Even though I believed we had an excellent case that was extremely winnable at trial, there is no better outcome for a client than a guaranteed dismissal!

My suggestion to DWI lawyers in New York City is to be creative and think outside of the box. Even though the deck is stacked against making a deal with the DA on a DWAI charge in New York City, my feeling is that it is always worthwhile to take the time to put together a client sheet that paints your client in the most favorable light and present this to the DA. Even if it doesn't help, it certainly can never hurt.

Finally, understand that client who blows a 0.05 may often display no signs of impairment, despite the arresting officer indicating that the defendant had glossy eyes, gave off an odor of alcohol, and was 'unbalanced'. Use a low blow in your favor by having the arresting officer agree that a 0.05 is NOT intoxicated and use the video to demonstrate the lack of impairment. A 0.05 without any video corroboration in the hands of a highly competent DWI defense lawyer should result in many courtroom victories.

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