Third DWI/DWAI Offense in New York

by ECL Writer
New York DWI & DWAI Laws and Penalties

Driving while intoxicated is a crime. Your judgment, coordination, and ability to drive a vehicle change when you consume any amount of alcohol. The level of impairment depends on five conditions

  • the amount of alcohol you drink
  • the amount of food you eat before or while you drink alcohol
  • the length of time you drink alcohol
  • your body weight
  • your gender

There is no quick fix for sobriety. The best approach is to wait until the alcohol is fully absorbed by your body. Your body processes alcohol at a pace of about one drink per hour on average. Driving under the influence (DUI) third offense, also known as driving while impaired (DWAI) or driving while drunk (DWI) in New York, carry exceptionally serious accusations and severe penalties. A crime or even a violation related to New York VTL 1192 should not be taken lightly, as has been repeatedly stated. The basic line is that nobody should attempt to deal with a third DUI, DWAI, or DWI charge without the help of a New York Third-Offense DUI lawyer who is familiar with the intricate procedures followed by prosecutors and New York courts.

In this article, will outline all you need to know about the third DWI/DWAI offense in New York.

In New York, impaired driving offenses include:

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

The test for DWAI violations is whether the driver’s capacity to operate a vehicle “reasonably and prudently” is “any amount” compromised. A defendant is assumed to be impaired if their blood alcohol content is.07% or higher but less than.08%.

Compared to DWAI, DWI needs evidence of a higher degree of impairment. An “intoxicated condition” is defined under New York’s DWI legislation as an impairment to the point that the defendant is unable to use their physical and mental faculties to drive a vehicle in a “reasonable and prudent” manner.

Administrative Penalties

License Suspension and Revocation

If there are good reasons to suspect that a driver is operating a vehicle in violation of the state’s DWI or DWAI regulations, the driver is presumed to have provided consent to a chemical test under New York’s implied consent law.

Any driver whose license has been suspended by the court since their arraignment (initial court appearance) includes those who:

  • 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.

While the criminal investigation is ongoing, the suspension is still in effect. Criminals who resisted taking a chemical test are entitled to a DMV hearing. The DMV will revoke the offender’s license if the hearing officer determines that the driver improperly refused the test. 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.

If the prior conviction for impaired driving occurred more than five years before the present accusation, offenders who didn’t refuse a chemical test are eligible for a “conditional license” or “hardship privilege.” During the term of administrative suspension or revocation, these licenses permit driving to specific areas for authorized purposes.

Civil Penalty

The DMV imposes a $750 civil penalty if the motorist’s license is revoked for refusing to submit to a chemical test within the past five years:

  • the offender has had his or her license revoked for refusing to take a chemical test at least once, or
  • the offender has been convicted of a prior impaired driving offense.

Criminal Penalties

If the defendant has been convicted of two or more impaired driving charges within the previous 10 years, an alcohol-DWAI conviction is a misdemeanor. A class D felony is committed if you have a third conviction for DWI per se, DWI, drug-DWAI, or combination-DWAI within ten years.

Penalties for Third Alcohol-DWAI Convictions

A defendant who’s convicted of an Alcohol-DWAI and has two DWI or DWAI convictions within the previous ten years faces the following penalties:

  • a maximum sentence of 180 days in jail and/or a fine of $750 to $1,500, and
  • a six-month license revocation.

Defendants who haven’t been convicted of any DWI or DWAI offense within the past five years are generally eligible to participate in a drug and alcohol rehabilitation program. Participation in the program typically makes defendants eligible for a conditional license.

Penalties For Third DWI, Drug-DWAI, And Combination-DWAI Convictions

Jail and Fines

For a third DWI, drug-DWAI, or combination-DWAI conviction within ten years, a prison term of one to seven years, and/or a fine of $2,000 to $10,000 are possible punishments. A statutory minimum term of ten days in jail is imposed on a person who is found guilty of DWI or DWI per se three times in the course of a five-year period.

Community Service Work

In lieu of jail time when a person receives a third DWI conviction in a five-year period, the judge may order them to serve 60 days of community service for a public or charitable organization.

License Revocation

A person’s license will be permanently suspended if they receive three impaired driving convictions, refusals, or a combination of convictions and refusals during a four-year period. After five years, the DMV may, however, waive the permanent suspension if the offender:

  • doesn’t refuse a chemical test during the five-year revocation period
  • isn’t convicted of any DWI or DWAI offense during the five-year revocation period, and
  • provides documentation of the successful completion of a rehabilitation program.

A defendant can obtain a conditional license after a mandatory revocation period of three years.

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 have been convicted of DWI or DWI per se three times in the previous five years. 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 Third DWI And DWAI Convictions

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

  • alcohol and drug abuse screening, assessment, and treatment
  • victim impact program (VIP), and
  • a driver responsibility assessment of $250 per year for three years.

Failure to complete these penalties can result in probation violations and an additional license suspension.

How Long Is A DWAI On Your Record In NY?

In New York, a Driving While Ability Impaired (DWAI) conviction stays on your driving record for a period of 10 years from the date of conviction. After 10 years, the conviction is considered spent and is no longer counted as a part of your driving record. However, if you are convicted of a subsequent DWAI or another traffic violation within those 5 years, the previous conviction may be considered in determining your license status and any penalties you may face.

It’s important to note that while a DWAI conviction is no longer counted as part of your driving record after 10 years, it may still show up on your criminal record and can impact your employment, insurance rates, and other aspects of your life. Therefore, it’s important to take a DWAI conviction seriously and to seek the advice of a qualified attorney if you are facing charges of DWAI in New York.

Can A DWAI Be Dismissed In NY?

In New York, a Driving While Ability Impaired (DWAI) charge can be dismissed under certain circumstances. However, the chances of having a DWAI charge dismissed depend on a number of factors, including the specific facts and circumstances of your case, the evidence against you, and the stance of the prosecution.

A common defense to a DWAI charge is challenging the validity of the field sobriety test or chemical test that led to the charge. If the test was administered improperly, or if there were problems with the equipment used, your attorney may be able to get the results were thrown out, which could result in the dismissal of the DWAI charge.

Another potential defense to a DWAI charge is arguing that the prosecution cannot prove that your ability to drive was actually impaired. To obtain a DWAI conviction, the prosecution must prove beyond a reasonable doubt that your ability to drive was impaired, even if only slightly, due to drugs or alcohol. If the prosecution cannot meet this burden, your attorney may be able to get the charges dismissed.

If you have been charged with DWAI in New York, it is important to seek the advice of a qualified attorney who can review your case and help you build the strongest defense possible.

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