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DWI in New York State

Posted by attorney Marco Caviglia

HOW IS IT DEFINED? Drunk driving in New York State is prosecuted under either or both of two theories: common law drunk driving and driving while one has more than .08% of one gram of alcohol per liter in one’’s bloodstream. Yet a third option for prosecution is Driving While Ability Impaired by Drugs and a fourth is Driving While Ability Impaired by Drugs in Combination With Alcohol, which as the name implies, addresses the use of both substances. The first theory is the old fashioned drunk driving where one is weaving in traffic and having obvious problems.

The second theory ignores how the driver is doing, but makes it a criminal offense merely to have more than the limit allowed in your blood. Roughly, one ounce of alcohol will raise your blood alcohol content (BAC) .02%. In other words about 4 regular drinks or 4 regular sized beers would mean the "average" person may be legally considered drunk. The liver metabolizes about one ounce per hour, so it can only lower your Blood Alcohol Content or BAC by .02% per hour. If one has 8 drinks in two hours, theoretically, one’s BAC would be .12% BAC (8 ozs. less 2 ozs. that get metabolized in two hours = 6 ozs. which, when multiplied by .02%, results in .12%). This is well over the limit. Each person will vary somewhat from this calculation, but this is a rule of thumb.

The third theory addresses situations in which substances such as marijuana or prescription drugs have been used, and the fourth applies when both alcohol and drugs are used together even though the level of each would not necessarily be a crime in its own right.


DWI under either theory is a misdemeanor punishable by a maximum of one year in a county jail, and/or a maximum of a $1,000 fine (with a significant surcharge), and a revocationof one’’s license for a minimum of 6 months. Penalties increase for repeat offenders. an ignition interlock device is also imposed at sentencing.

A special class of the offense now inclued is "aggravated drving while intoxicated." for BAC .18 or over carries penalties of $2,500, up to a year in jail, and mandatory installation of an ignition interlock in one's automobile. Also, a new crime of driving while under the influence of both alcohol and drugs was created. Even a first time offender is required to undergo dependency screening. Now, lookback periods of lifetime DWIs are considered for permanent revocation of one's license.

If one is DWI and has a passenger under 16 years of age, the driver is also charged with a felony, which is punishable with state prison, even if only a first time offender. The level of felony and punishment increase with certain conditions, and if the child passenger dies in a DWI accident, the driver may be sentenced, if convicted, up to 25 years in prison.

Anyone convicted of misdemeanor DWI is also required, at his own expense, to install an ignition interlock device in the vehicle which prevents ignition of the engine if the driver is not sober unless the court determines to waive it because there is no evidence of alcohol abuse or dependence.

When one’’s BAC is lower than .08 (of one percent), but over .07%, such a driver is deemed to be driving while his ability is impaired. This means that while illegal, it is not a crime, but is aviolation. It is punishable by a maximum of 15 days in a county jail and/or a maximum of $500 fine (plus a surcharge) and asuspensionof one’’s license for90 days. The penalties are, therefore, less and one’’s license is suspended, not revoked, and for a shorter period than for the misdemeanor.

In New York State, you are penalized without being convicted! For merely being arrested for DWI and having a BAC of at least .08, your license issuspended at arraignment(when you appear before the judge the first time) and it remains suspended until your case is finished. If one meets certain criteria, one can obtain a hardship license for the first 30 days, and a conditional license thereafter while the case is pending in court. These are limited forms of driving privileges designed to avoid one from losing one’’s job, schooling, or health care. Keep in mind, the penalties after a conviction are in addition to this suspension pending prosecution. For example, if one is convicted, whatever the suspension or revocation of your license imposed, starts anew. One gets no credit for the prior time suspended pending the prosecution.

Last but not least, as a driver convicted of a drinking related offense, one is surcharged by DMV for the following three years for $250 per year, a total of $750.

A number of other variations may occur, too many to list in this short article, but which at consultation can be identified to your particular situation.


Once arrested, does the driver, now a defendant, need an attorney? Once arraignedat his first appearance, his license is usually suspended pending prosecution,and the matter is scheduled for motion practice. After written motionsby the defendant and written answer by the prosecutor, the judge issues a decision which may include ordering thatpre-trial hearings be held to determine certain legal issues which may include the propriety of the officer’’s stop of the vehicle and the admissibility of the defendant’’s statements made to the police. If the prosecutor’’s case is still legally sufficient following the hearings, the matter proceeds totrial.

At a trial, the defendant may be found guilty or not guilty. Sometimes a "plea bargain" is obtained before or during trial in which the district attorney and the defendant’s attorney fashion an agreement which is mutually acceptable to the defendant and the State of New York. If convicted, the defendant is sentenced and his license is further suspended or revoked in addition to other aspects of the sentence.

HOW SHOULD YOU CHOOSE A DWI ATTORNEY? A DWI case is a criminal case, even if there was no accident, no one was hurt, and matters were relatively uneventful. The outcome will affect your liberty, license, reputation, job, and finances...not to mention your ability to be insured as a driver and the rates you will pay, and what modifications you will have to make to your automobile just to drive conditionally. Lots of normal people, not thought of as criminals, get arrested for DWI and are not experienced in such matters. An experienced criminal law attorney is a necessity.

The reasons for this are several. Only an experienced criminal law attorney will be able to analyze the case sufficiently to know if, and in what way, the charge can be challenged. An unrealistic challenge will be expensive and may result in a worse disposition than a plea bargain. On the other hand, a case that should have been challenged, but was not, will result in a conviction which should not have occurred. This analysis starts at the first conference with the client, but often will only be decided some later time into the case itself.

It must be recognized that DWI cases are, in reality, complicated. They involve technical and scientific devices, analysis of key facts in the stop, questioning, and arrest of the defendant, knowledge of criminal procedure and rules of evidence, and may involve a pre-trial hearing and possibly a trial. Trial experience is also relevant because the attorney must have solid experience in knowing how things in your particular fact pattern and evidence will affect a jury.

The LAW FIRM OF MARCO CAVIGLIA will fulfill all of these needs and requirements.

It is often only an experienced criminal law attorney who can assist the client in overcoming his embarrassment at being arrested and seeking out potential and not so obvious defenses in a DWI case. Aside from dismissal or acquittal, weaknesses identified in the prosecutor’’s case may result in a better disposition by plea bargain than originally offered by the prosecutor.

These considerations are magnified if this is not one’’s first offense. A repeat offender with a prior DWI conviction is subject to conviction of a felony and loss of certain rights as an American citizen, prison or jail, being placed on probation for years, a $10,000 fine, and loss of license for years. Even if a felony conviction is avoided, harsheer consequences will still follow for a lesser conviction if it is not the first.

With all of this in mind, choose an attorney with significant experience in criminal law and DWI cases. We have handled thousands of DWI cases over the past three decades and know what we are doing. Call us. We can help.

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