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Penalties for Convictions

DWAI – 1st Offense

A person is guilty of DWAI when they operate a motor vehicle while their ability to do so is impaired to any extent by the consumption of alcohol. DWAI is a traffic infraction and not a crime. On the other hand, DWI, DWAI Drugs and DWAI Combined Influence are misdemeanors (convictions of these crimes will produce a criminal record).

Practically speaking, in most cases, where a person charged with DWI as a first offense, the Government will usually offer a plea bargain the charge to DWAI. In any event, while that offer is common, it is not guaranteed. For instance, some District Attorney's Offices will not offer a reduction to DWAI if the person had a high blood alcohol concentration level. Some DA's Offices will not offer the reduction if the person refused to take a chemical breath test or a blood test. The Government may not offer the reduction if there was an accident, where a child was in the car, if the person resisted arrest, among other things. 

Upon a conviction to a first offense DWAI, the following potential consequences are likely:

  1. Fines between $300 and $500, no more than 15 days in jail, or both;
  2. Driver's license suspension for 90 days (there are exceptions for commercial drivers and those under the age of 21);
  3. A New York State surcharge of $255 or $260 (depending on the court);
  4. A DMV driver responsibility assessment of $250 a year for 3 years; and
  5. You may be required to attend a victim impact panel. 

You may be eligible for the Drinking Driver Program (now called Impaired Driver Program) and a conditional license.

DWAI – 2nd Offense

If you are convicted of DWAI after having been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 5 years, you face the following potential consequences:

  1. Fines ranging from $500 and $750, no more than 30 days in jail, or both;
  2. A license revocation for 6 months minimum.
  3. The DMV will request evidence of alcohol rehabilitation before it will provide a license to you again;
  4. Discretionary revocation of your registration for at least 6 months;
  5. A New York State surcharge of $255 or $260 (depending on the court);
  6. A driver responsibility assessment of $250 a year for 3 years; and
  7. A will likely be required to attend a victim impact panel. 

You will not be eligible for a conditional license

DWAI – 3rd and Subsequent Offenses

If you are charged with DWAI after having been convicted of 2 or more violations of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 10 years, you may be prosecuted for misdemeanor DWAI. As a result, you face these potential consequences:

  1. Fines ranging from $750 and $1,500, not more than 180 days in jail, or both;
  2. A period of probation of 3 years;
  3. Revocation of your driver's license for at least 18 months. 
  4. Under the DMV regulations, you will be denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock device. 
  5. DMV will require evidence of alcohol rehabilitation before it will give you a license again;
  6. Discretionary revocation of your registration for at minimum 6 months;
  7. A surcharge of $395 or $400 (depending on the court);
  8. A driver responsibility assessment of $250 a year for 3 years;
  9. A requirement that you attend a victim impact panel
  10. Installation and maintenance of a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

You may be eligible for the Impaired Driver Program, but will not be eligible for a conditional license

In the event that the third or subsequent DWAI is not charged as a misdemeanor, the DMV will nevertheless revoke your driver's license for at least 18 months. Once a driver is convicted of 3 or more VTL § 1192 within 10 years, the DMV imposes a license revocation of 6 months per offense. As a result, and for the purposes of illustration, if a driver has 5 convictions within 10 years, the DMV would impose a 30-month license revocation. There are also increased penalties if the offenses are clustered within a short period of time. 

DWI – 1st Offense

DWI is a misdemeanor--which is a crime. A conviction may result in a lifetime criminal record, or at minimum a criminal record for 10 years before you could make a motion to seal your criminal record. If you are convicted of DWI as a first offense, these are the potential consequences:

  1. Fines between $500 and $1,000, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. At least a 6 month license revocation; 
  4. Possible revocation of your registration for at least 6 months;
  5. A surcharge of $395 or $400 (depending on the court); 
  6. A DMV driver responsibility assessment of $250 a year for 3 years;
  7. The attendance at a victim impact panel and installation and maintenance a working ignition interlock device in any motor vehicle that you own or operate for not less than six months. 

You may be eligible for the Impaired Driver Program and a conditional license

DWI — 2nd Offense

If a second DWI within 10 years a conviction for either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you will likely be charged with felony DWI. If you are offered a plea to misdemeanor DWI, these are the potential consequences:

  1. Fines between $500 and $1,000, up to 1 year in jail, or both;
  2. Probation of 3 years;
  3. Revocation of your driver's license for at least 1 year (even longer where the prior conviction was for Aggravated DWI).
  4. Under DMV regulations, you will be denied full licensing until the expiration of the minimum revocation period;
  5. The DMV will require evidence of alcohol evaluation or rehabilitation before it will give you your license back;
  6. Your registration may be revoked for at least a year;
  7. A surcharge of $395 or $400 (depending on the court); 
  8. A DMV driver responsibility assessment of $250 a year for 3 years;
  9. A requirement that you attend a victim impact panel and a requirement that you install and maintain a functioning ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, and in no event for less than 6 months.

A second conviction of misdemeanor DWI after having been previously convicted of misdemeanor DWI in the past 5 years, you are subject to the following mandatory penalties:

  1. 5 days in jail or 30 days of community service;
  2. You must install an ignition interlock device in each motor vehicle you own or operate during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court; and you must receive an alcohol or substance abuse assessment, which may result in the imposition of treatment as a condition of a sentence of probation or conditional discharge.

If the new DWI charge is more than 5 years from your prior conviction, you may be eligible for a  conditional license

Misdemeanor Aggravated DWI – 1st Offense

Aggravated DWI is a misdemeanor. If you are convicted of Aggravated DWI as a first offense, you face the following potential consequences:

  1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both;
  2. A period of probation of 3 years;
  3. Your driver's license will be revoked for at least 12 months;
  4. Possible revocation of your registration for at least 12 months;
  5. A surcharge of $395 or $400 (depending on the court);
  6. A DMV driver responsibility assessment of $250 a year for 3 years;
  7. A requirement that you attend a victim impact panel; 
  8. Installation and maintenance of a properly functioning ignition interlock device in any motor vehicle that you own or operate for not less than 6 months.

You may be eligible for the Impaired Driver Program and a conditional license.

Misdemeanor Aggravated DWI – 2nd Offense

A second Aggravated DWI within 10 years of a previous conviction of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you will likely be charged with felony Aggravated DWI. If you are allowed to plead to misdemeanor Aggravated DWI, you face the following consequences:

  1. Fines ranging from $1,000 and $2,500, up to 1 year in jail, or both;
  2. Probation of 3 years;
  3. A license revocation for a minimum 18 months. 
  4. Possible revocation of your registration for at least 18 months;
  5. A surcharge of $395 or $400 (depending on the court);
  6. A driver responsibility assessment of $250 a year for 3 years;
  7. You may have to attend a victim impact panel;
  8. Installation and maintenance of a working ignition interlock device in any motor vehicle that you own or operate during for no less less than 6 months (but likely longer). 

DWAI Drugs

Like DWI, DWAI Drugs is a crime. A conviction of which will result in a lifetime criminal record (or at minimum for 10 years, until you can bring a criminal record sealing application). It is critical to note that the standard of proof for DWAI Drugs is the same as that for DWAI Alcohol (that is, a person is guilty of DWAI Drugs if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of certain drugs). In other words, DWAI Drugs is the same level offense as DWI, but you only need to be impaired — not intoxicated — to be convicted of this offense.

The consequences of DWAI Drugs conviction are essentially the same as those of DWI, with an exception. For whatever reason (likely a drafting error in the law), if you are convicted of DWAI Drugs you are not eligible for a conditional license. You might be eligible for a restricted use license. The ignition interlock device does not apply to DWAI Drugs convictions.

DWAI Combined Influence

This is also a crime. The penalties for a conviction of this offense are nearly the same as DWI. But the ignition interlock device requirement is not required. 

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Arnold A. Arpino & Associates, P.C., is a full service law firm that represents individuals and businesses in a variety of different practice areas. Our firm regularly appears in the Courts throughout Long Island, New York City, and the Hudson Valley.

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