DWI/DWAI

“Drunk driving” is a common term that the public thinks of when discussing alcohol-related traffic crimes. In reality, there are multiple “drunk driving” charges that the government can press against an impaired driver, even when the driver is under the legal limit.

Drivers under the influence of drugs may face charges similar to DWI or DUI. New York categorizes the different alcohol and drug-related offenses, and each charge can result in different penalties. 

Under § 1192 of the New York State Vehicle and Traffic Law (NY VTL), the prohibitions against a driver's consumption of alcohol or drugs include:

• Driving while ability impaired (DWAI): "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol" (VTL §1192[1]). A first violation is a traffic infraction. New York's highest court has defined this offense as where a driver consumes alcohol so that he or she "has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." People v Cruz, 48 NY2d 419 (1979).

• Driving while intoxicated; per se: "No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva . . . " (VTL §1192[2]). A first violation is a misdemeanor. In laypersons terms, the crime of DWI per se is when a driver operates a motor vehicle with a blood alcohol concentration of 0.8% or more.

• Driving while intoxicated: "No person shall operate a motor vehicle while in an intoxicated condition." (VTL §1192[3]). A first violation is a misdemeanor. . You can be charged with DWI even if there is no chemical test result (this can happen if you refused to submit to a chemical breath test). 

• DWAI by drugs: "No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug . . ." (VTL §1192[4]). A first violation is a misdemeanor.

• DWAI by the combined influence of drugs or of alcohol and any drug or drugs: "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs" (VTL §1192[4-a]). A first violation is a misdemeanor.

• Aggravated DWI; per se: "No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva . . . " (VTL §1192[2-a][a]). A first violation is a misdemeanor.

• Aggravated DWI; with a child: "No person shall operate a motor vehicle while [intoxicated, impaired by drugs, or impaired by the combined influence of drugs or of alcohol and any drug or drugs] while a child who is fifteen years of age or less is a passenger in such motor vehicle" (VTL §1192[2-a] [b]). A first violation is a class E felony.



• Other provisions of VTL §1192 prohibit the operation of certain commercial vehicles at BAC levels lower than those specified in VTL §1192.

As with all criminal charges, the Government suffers the burden of proving their case against you. Over the past decade, there has been a surge in increased political and public intolerance towards those who are accused of drunk driving related offenses. As a result, defending those charges has become more complicated and the penalties have become more severe.