2023 New York DWI & DWAI Laws and Penalties

by ECL Writer
New York DWI & DWAI Laws and Penalties

Anyone who is impaired or under the influence of alcohol or drugs cannot operate a motor vehicle. Driving While Ability Impaired (DWAI) and Driving While Intoxicated (DWI) are both strictly prohibited in New York (DWI). It’s critical to understand the potential consequences of a DWI conviction in New York as well as the importance of working with a defense attorney you can rely on during this trying time. In New York, the penalties for a DWI conviction are serious and readily capable of affecting your life in a number of ways. It’s normal to feel alone and helpless in this circumstance, but having the best lawyer on your side can significantly impact how your case turns out.

New York has two categories of impaired driving offenses, driving while ability impaired (“DWAI”), and driving while intoxicated (“DWI”). In this post, Eastcoastlaws.com will outline all you need to know about New York DWI and DWAI laws and penalties.

DWAI in New York

In New York, DWAI stands for “Driving While Ability Impaired”. This is a criminal offense that is committed when a person operates a motor vehicle with a blood alcohol concentration (BAC) of 0.05% to 0.07%, or while their ability to drive is impaired by the consumption of alcohol or drugs. This is a less severe charge than Driving Under the Influence (DUI), but it still carries potential consequences, including fines, license suspension, and possible jail time. However, if the defendant’s BAC is .05% or less, it’s presumed that the driver’s abilities to operate a vehicle weren’t impaired.

DWI in New York

Driving While Intoxicated (DWI) is a criminal offense in New York that is committed when a person operates a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher, or while their ability to drive is impaired by the consumption of alcohol or drugs. The consequences for a DWI conviction can be severe, including fines, license suspension, and possible jail time. Repeat offenders face even harsher penalties. It is important to note that in New York, the police have the authority to stop a vehicle and perform a sobriety test if they suspect the driver may be under the influence. Refusing to take a sobriety test can result in additional consequences.

Motorists can also commit a DWI offense with the following BAC levels:

Under 21 years of age.02% or more
Commercial drivers.04% or more
All motorists.18% or more (aggravated DWI)

Penalties Imposed for Convictions

Administrative (license-related) fines are frequently imposed after an arrest for drunk driving. Criminal sanctions are also applied if the offender is found guilty of DWI or DWAI in court.

Criminal Penalties

The type of conduct committed and the defendant’s prior driving while intoxicated convictions determine the criminal penalty. When compared to convictions for DWI, drug-DWAI, and combination-DWAI offenses, penalties for alcohol-DWAI offenses are typically less severe. Additionally, if the offender has ever been convicted of driving while intoxicated, the penalties will usually be increased.


A third offense of alcohol-related driving while intoxicated is a misdemeanor, as opposed to the first two. If the defendant has been convicted of any DWI or DWAI offense during the previous five years, it is regarded as a second alcohol-DWAI conviction. If a defendant has two or more convictions for impaired driving within the last 10 years, they will be subject to third-offense sanctions.

The minimum and maximum punishments for a first, second, and third conviction for drinking and driving are shown in the chart below.

Penalties1st Offense2nd Offense3rd Offense
Jail15 days (maximum)30 days (maximum)180 days (maximum)
Fines$300 to $500$500 to $750$750 to $1,500
License Suspension/ Revocation90-day suspension6-month revocation6-month revocation

DWI, Drug-DWAI, and Combination-DWAI:

DWI, drug-DWAI, and combination-DWAI first convictions are considered misdemeanors. It is a felony to receive a second or third conviction within ten years. A second or third DWI within a five-year period carries additional obligatory penalties for offenders.

For first, second, and third convictions for DWI, drug-DWAI, or a combination of DWI, the following minimum and maximum punishments apply to the defendant:

1nd Offense2rd Offense
JailMaximum: 1 year1 to 4 yearsMinimum: 5 days (if second DWI conviction is within a 5-year period)1 to 7 yearsMinimum: 10 days (if third DWI conviction is within a 5-year period)
Fines$500 to $1,000$1,000 to $5,000$2,000 to $10,000
Community Service WorkNone30 days (as an alternative to the minimum jail time)60 days (as an alternative to the minimum jail time)
License Revocation6 months1 year (if second conviction is within 10 years)Permanent (if third conviction is within 4 years) but possible waiver after 5 years
Ignition Interlock Device6 months to 1 year (for DWI convictions)For the duration of the revocation period and for an additional period (if second DWI within 5 years)For the duration of the revocation period and for an additional period (if third DWI is within 5 years)

Administrative Penalties

According to New York’s implied consent legislation, all drivers must consent to breath, blood, urine, and/or saliva testing if an officer has cause to suspect they are driving while intoxicated (DWI) or driving while impaired by alcohol (DWAI). Drivers who reject testing risk the following consequences:

1st Offense2nd Offense3rd Offense
License Revocation1 year18 months18 months
Civil Penalty$500$750 (if second revocation for refusing a test or second DWI or DWAI within 5 years)$750 (if second revocation for refusing a test or second DWI or DWAI within 5 years)

The court will also suspend the license of any driver who:

  • had a BAC of .08% or more at the time of arrest, or
  • is charged with DWI per se, DWI, Drug-DWAI, or Combination-DWAI and has a prior impaired driving conviction within the past five years.

The suspension begins at the arraignment and continues for the duration of the criminal prosecution.

Additional Penalties Imposed for Impaired Driving Convictions in New York

All DWI and DWAI offenders are generally subject to the following additional penalties:

  • completion of an alcohol and drug screening and assessment
  • completion of a substance abuse treatment program (if the screening and/or assessment indicate that the defendant is abusing or dependent on alcohol or drugs)
  • attendance at a victim impact panel (VIP), and
  • a driver responsibility assessment of $250 per year for three years.

Violations of probation may lead to further jail time and fines as well as additional probation violations if the substance addiction screening, assessment, treatment, or VIP are not completed. Defendants who don’t pay the driver responsibility assessment risk a further suspension of their license until full payment is received.

How Long Will A DWI Or DWAI Stay On Your Record?

A conviction for Driving While Ability Impaired (DWAI) in New York stays on a driver’s record for ten years. However, the Department of Motor Vehicles may take action to revoke or suspend the person’s license if they are found guilty of numerous DWAI violations within a specific time frame. It is crucial to get legal counsel if you have been accused of DWAI because a conviction could affect your insurance premiums and career prospects.

How Is DWI Determined In New York?

For a suspected DWI, police need to have a good reason to stop a vehicle. For instance, a police officer may have reasonable suspicion to stop a vehicle if they observe a driver swerving or driving recklessly. The outcome of the traffic stop at this point is uncertain. The motorist will probably be detained for DWI if the police officer sees an open container of alcohol in the car, the distinct smell of alcohol on the driver’s breath, or any other obvious signs that the driver is impaired by alcohol.

Field sobriety tests may be administered to motorists by some police officers. A driver is not required to consent to such tests, though. The implied consent rule for DWI testing in New York only applies to chemical tests conducted following valid DWI arrests. After being booked into custody for a DWI, you must take a chemical test at the police station. The New York Department of Motor Vehicles (DMV) will instantly suspend your driver’s license if you refuse this test, and you will be subject to the highest punishment if you are found guilty of a DWI crime.

New York utilizes the blood-alcohol concentration (BAC) measuring system to assess DWI, similar to the majority of other states. The allowed threshold for DWI is.08%. However, if a driver’s BAC is between.07% and.08%, they could be charged with DWAI. The consequences for DWAI offenses are nevertheless high while being less severe than those for DWI. The authorities can also check the driver’s bloodstream for the presence of specific illegal drugs during the chemical test. Everybody processes medications differently, and different substances metabolize at varying rates. The authorities will use this information against you if your chemical test finds that you have any illegal drugs in your system.

Defenses Against DWI And DWAI In New York

There are several defenses that can be used to fight a DWI or DWAI charge in New York, including:

  • Improper stops: If the police did not have a valid reason for stopping your vehicle, any evidence obtained during the stop may be inadmissible in court.
  • Faulty field sobriety tests: Field sobriety tests are not always reliable and can be challenged in court.
  • Improper administration of chemical tests: If the breathalyzer or blood test was not administered correctly, the results may be unreliable and can be challenged.
  • Rising blood alcohol defense: This defense argues that the defendant’s BAC was not above the legal limit at the time of driving, but rose above it while they were being tested.
  • Medical conditions: Certain medical conditions can affect the results of a sobriety test and can be used as a defense.
  • Calibration issues: If the breathalyzer or blood test equipment was not properly calibrated, the results may be inaccurate and can be challenged.

It is important to note that each DWI or DWAI case is unique and the best defense will depend on the specific circumstances. An experienced DWI/DWAI attorney can help you determine the best defense for your case.

Are DWAI Offenses Worse Than DWI offenses?

In New York, DWAI (Driving While Ability Impaired) is considered a less severe offense than DWI (Driving While Intoxicated), but it is still a criminal offense that carries potential consequences. The main difference between the two is the level of impairment: a DWI is charged when a person operates a vehicle with a blood alcohol concentration (BAC) of 0.08% or higher, or while their ability to drive is significantly impaired by the consumption of alcohol or drugs, while a DWAI is charged when a person operates a vehicle with a BAC of 0.05% to 0.07% or while their ability to drive is somewhat impaired by the consumption of alcohol or drugs. However, both DWI and DWAI carry potential consequences, including fines, license suspension, and possible jail time, and can have a negative impact on a person’s driving record and insurance rates.

This blog is ONLY for informational or educational purposes and DOES NOT substitute professional legal advise. We take no responsibility or credit for what you do with this info.