Second DWI or DWAI Offense in New York

by ECL Writer
DUI Laws In Washington State

DWI charges are “priorable” in New York, which means that the consequences for a conviction increase with each successive offense. If you have been accused of a second crime, this has serious consequences. Driving while drunk (“DWI”) and driving while ability impaired (“DWAI”) are the two main forms of impaired driving charges in New York (“DWI”). There are numerous forms of impaired driving charges that fall under these categories, each with a distinct punishment. It is against the law for drivers to operate a vehicle:

  • while their abilities are impaired by the consumption of alcohol (“Alcohol-DWAI”)
  • while their abilities are impaired by the use of a drug (“Drug-DWAI”)
  • while their abilities are impaired by the use of a combination of alcohol and drugs (“Combination-DWAI”)
  • while in an “intoxicated condition” (“DWI”)
  • with a blood alcohol content (BAC) of .08% or more (.04% or higher for drivers of commercial vehicles) (“DWI per se”), and
  • with a BAC of .18% or more or driving intoxicated with a passenger who’s 15 years of age or younger (“Aggravated-DWI“).

The difference between DWI and DWAI is a matter of degree: DWI generally requires proof of a greater level of impairment than DWAI. And in this article, will outline all you need to know about second DWI or DWAI offense in New York.

Administrative Penalties For Second DWI or DWAI Offense in New York

License suspension and revocation: If an officer has good reason to believe a driver is operating a vehicle in violation of the state’s rules against driving while intoxicated, the driver is presumed to have granted consent to a chemical test. A driver’s license will be revoked by the court under New York’s implied consent law if they:

  • is charged with DWI per se, DWI, or Combination-DWAI and had a BAC of .08% or more at the time of the arrest
  • is charged with DWI per se, DWI, Drug-DWAI, or Combination-DWAI and has been convicted of any impaired driving offense within the past five years, or
  • refused to take a chemical test.

The suspension starts at the first court appearance, which is typically the arraignment, and it continues throughout the duration of the criminal investigation. Until the conclusion of a Department of Motor Vehicles (DMV) hearing, the suspension for refusing to submit to a chemical test remains in effect. If the refusal is upheld during the hearing, the offender’s license will be revoked by the DMV. If the offender did any of the following within the previous five years:

  • had a prior license revocation for refusing to take a chemical test, or
  • was convicted of any DWAI or DWI offense.

A “conditional license” or “hardship privilege,” which permits driving for specific purposes during the term of administrative suspension or revocation, may be obtained by some criminals. However, those who refused a chemical test or had a driving-related conviction within the past five years are often ineligible for any driving privileges.

Civil penalty. If within the previous five years, it’s the offender’s second or subsequent license revocation for refusing a chemical test or second impaired driving conviction, the DMV imposes a $750 penalty.

Criminal Penalties

If the offender is found guilty in a court of DWI or DWAI, there are criminal sanctions in addition to administrative ones. Depending on the offense for which the person is found guilty and if they had prior convictions for impaired driving, the criminal consequences for a second DWI or DWAI conviction vary.

A driving infraction is a second DUI with an alcohol conviction. However, if the offender has a prior conviction for any type of drunk driving violation within the previous five years, the penalties are more severe. A second DWI per se, DWI, drug-DWAI or combination-DWAI conviction within ten years is a class E felony.

Penalties for Second Alcohol-DWAI Convictions

Following a conviction for any DWI or DWAI crime during the previous five years, a defendant who is found guilty of alcohol-DWAI is subject to the following punishments:

  • a maximum sentence of 30 days in jail and/or a fine of $500 to $750, and
  • a six-month license revocation.

A conditional license may be granted to some defendants who take part in a drug and alcohol rehabilitation program. However, the program is not open to defendants who have been found guilty of any impaired driving violation in the previous five years.

Penalties for Second DWI, Drug-DWAI, and Combination-DWAI Convictions

Jail and fines

A penalty of one to four years in prison and/or a fine of $1,000 to $5,000 are imposed for a second conviction for DWI, drug-DWAI, or combination-DWAI within ten years. A statutory minimum penalty of five days in jail will be imposed on the defendant if their second DWI conviction occurs within five years of their first.

Community service work

For a second DWI within five years, the judge may order the offender to serve 30 days of community service with a public or nonprofit agency instead of jail time.

License revocation

The defendant faces a one-year license suspension for a second DWI, drug-DWAI, or combination-DWAI conviction within a ten-year period. If the past conviction for impaired driving occurred more than five years prior to the current offense, the defendant can often acquire a conditional license after enrolling in a rehabilitation program.

Ignition interlock device

Defendant is required to install and maintain an ignition interlock device (IID) in any vehicle that they own or drive if they are convicted of DWI or DWI per se a second time within five years. The installation and upkeep of the device are normally the responsibility of the defendants. The IID must be kept in place for the duration of the license suspension as well as for any additional time the judge may order.

Additional Penalties for Second DWI and DWAI Convictions

Alcohol/drug screening, assessment, and treatment. DWI and DWAI offenders generally must submit to an alcohol/drug screening and assessment. If the screening and assessment indicate that the defendant is abusing or dependent on alcohol or drugs, the court will require the completion of a treatment program as a condition of probation.

Victim impact program. All defendants convicted of any DWI or DWAI offense are typically required to attend a victim impact program (VIP). The program consists of presentations regarding the impacts of driving a vehicle while under the influence of alcohol or drugs.

Driver responsibility assessment. All defendants who either refused to take a chemical test or are convicted of any impaired driving offense must pay a driver responsibility assessment of $250 per year for three years. Failure to pay the assessment results in a license suspension, which remains in effect until payment is made in full.

Defenses Against A Second Offense DWI

If someone is charged with a second offense DWI (driving while intoxicated), there are several defenses that they can raise to challenge the charges. However, the specific defenses will depend on the circumstances of the case. Here are a few possible defenses:

  1. Lack of probable cause for the traffic stop: If the police did not have a valid reason for stopping the vehicle, any evidence obtained during the stop may be suppressed, potentially leading to the charges being dropped.
  2. Improper administration of field sobriety tests: Field sobriety tests must be administered correctly and according to standardized procedures. If they were not, the results may be unreliable and can be challenged in court.
  3. Questionable breathalyzer results: Breathalyzer machines must be properly maintained and calibrated to produce accurate results. If this was not done, the results of the test may be unreliable and can be challenged in court.
  4. Illegal search and seizure: If the police conducted a search of the vehicle or person without a warrant or probable cause, any evidence obtained may be suppressed and the charges may be dismissed.
  5. Medical conditions or medications affecting sobriety: If a medical condition or medication was affecting the individual’s sobriety at the time of the arrest, this can be raised as a defense.

It is important to note that these defenses will vary depending on the specific facts of the case, and it is best to consult with a criminal defense attorney for personalized advice.

How Long Is A DWAI On Your Record In NY?

In New York, a Driving While Ability Impaired (DWAI) conviction remains on a person’s driving record for 10 years. However, if the individual is convicted of multiple DWAI offenses within a certain period, the Department of Motor Vehicles may take action to revoke or suspend their license. Additionally, a DWAI conviction may also impact insurance rates and employment opportunities, so it is important to seek legal advice if you have been charged with this crime.

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