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 Criminal Law/DWI
Attorney Scott Humble of Humble Law Office has been defending DWI and Criminal matters for over 25 years. The following is a breakdown of the current DWAI and DWI laws for New York State. Pennsylvania is more lenient on the first offence, but just as harsh or harsher on subsequent offences.
 
DWAI - First Offense
DWAI - Second Offense
DWAI - Third and Subsequent Offenses
DWI - First Offense
DWI - Second Offense
Misdemeanor Aggravated DWI - First Offense
Misdemeanor Aggravated DWI - Second Offense
DWAI Drugs
DWAI Combined Influence
Felony Offenses of DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence
Important Recent Changes to New York's DWI Laws
 

DWAI - First Offense
A person is guilty of DWAI if he/she operates a motor vehicle while his/her ability to do so is impaired to any extent by the consumption of alcohol. DWAI is a traffic infraction - not a crime. By contrast, DWI, DWAI Drugs and DWAI Combined Influence are crimes.

If you are convicted of DWAI as a first offense, you face the following potential consequences:

1. A fine of between $300 and $500, up to 15 days in jail, or both;

2. Suspension of your driver's license for 90 days (unless you are under 21 or possess a Commercial Driver's License ("CDL"));

3. A surcharge of $255 ( $260 if the case is in either a Town or a Village Court);

4. A driver responsibility assessment of $250 a year for 3 years; and

5. A requirement that you attend a Victim Impact Panel.

You will most likely be eligible for the Drinking Driver Program and a Conditional License.

DWAI - Second 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 (the 5 years runs from the date of the prior conviction to the date of the present charge), you face the following potential consequences:

1. A fine of between $500 and $750, up to 30 days in jail, or both;

2. Revocation of your driver's license for at least 6 months. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;

3. Discretionary revocation of your registration for at least 6 months;

4. A surcharge of $255 ( $260 if the case is in either a Town or a Village Court)'

5. A driver responsibility assessment of $250 a year for 3 years; and

6. A requirement that you attend a Victim Impact Panel (VICTIM IMPACT PANEL).

You will not be eligible for a conditional license.

DWAI - Third 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 can be charged with misdemeanor DWAI, in which case you face the following potential consequences:

1. A fine of between $750 and $1,500, up to 180 days in jail, or both; A period of probation of 3 years;

2. Revocation of your driver's license for at least 18 months. According to the new 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. See the section titled, Important Recent Changes to New York's DWI Laws, below;

3. DMV will require evidence of alcohol rehabilitation before it will ever relicense you;

4. Discretionary revocation of your registration for at least 6 months;

5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);

6. A driver responsibility assessment of $250 a year for 3 years;

7. 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.

You may be eligible for the Drinking Driver Program, but will not be eligible for a Conditional License.

Even if the DWAI is not elevated to a misdemeanor, your driver's license will still be revoked for at least 18 months, because once you have 3 or more VTL § 1192 convictions within 10 years, DMV imposes a license revocation of 6 months per offense. Thus, 4 offenses within 10 years would result in a 24-month license revocation, etc. You will also be subject to increased license penalties if the offenses are committed within a short period of time (e.g., 3 convictions within 4 years, or 4 convictions within 8 years).

DWI - First Offense
DWI is a misdemeanor, conviction of which will result in a lifetime criminal record. If you are convicted of DWI as a first offense, you face the following potential consequences:

1. A fine of between $500 and $1,000, up to 1 year in jail, or both;

2. A period of probation of 3 years;

3. Revocation of your driver's license for at least 6 months;

4. Discretionary revocation of your registration for at least 6 months;

5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);

6. A driver responsibility assessment of $250 a year for 3 years;

7. 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.

You may be eligible for the Drinking Driver Program and a Conditional License.

DWI - Second Offense
If you are charged with DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony DWI. Nonetheless, if you are allowed to plead to misdemeanor DWI, you face the following potential consequences:

1. A fine of between $500 and $1,000, up to 1 year in jail, or both; A period of probation of 3 years;

2. Revocation of your driver's license for at least 1 year (at least 18 months where the prior conviction was for Aggravated DWI). According to the new DMV regulations, you will be denied full licensing until the expiration of the minimum revocation period. See the section titled, Important Recent Changes to New York's DWI Laws, below;

3. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;

4. Discretionary revocation of your registration for at least 1 year;

5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);

6. A driver responsibility assessment of $250 a year for 3 years;

7. 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.

If you are convicted of misdemeanor DWI after having been convicted of misdemeanor DWI within the past 5 years, you are subject to the following additional 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 - First 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. Revocation of your Driver's License for at least 1 year;

4. Discretionary revocation of your registration for at least 1 year;

5. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);

6. A driver responsibility assessment of $250 a year for 3 years;

7. 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.

You may be eligible for the Drinking Driver Program and a Conditional License.

Misdemeanor Aggravated DWI - Second Offense
If you are charged with Aggravated DWI within 10 years of having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony Aggravated DWI. Nonetheless, if you are not prosecuted on the felony, but are allowed to plead to misdemeanor Aggravated DWI, you face the following consequences:

1. A fine of between $1,000 and $2,500, up to 1 year in jail, or both; A period of probation of 3 years;

2. Revocation of your Driver's License for at least 18 months. According to the new DMV regulations, you will be denied full licensing until the expiration of the minimum revocation period. See the section titled, Important Recent Changes to New York's DWI Laws, below;

3. Discretionary revocation of your registration for at least 18 months;

4. A surcharge of $395 ($400 if the case is in either a Town or a Village Court);

5. A driver responsibility assessment of $250 a year for 3 years;

6. 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.

DWAI Drugs
Like DWI, DWAI Drugs is a crime, conviction of which will result in a lifetime criminal record. 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 are virtually identical to those of DWI, with a critical exception. Due to a glitch in the law, if you are convicted of DWAI Drugs you are not eligible for a Conditional License, but you may be eligible for a restricted use license (which is very similar to a Conditional License). In addition, the ignition interlock device requirement is not applicable.

DWAI Combined Influence
The crime of Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs is self-explanatory. The consequences of a conviction of this offense are virtually identical to those of DWI. However, the ignition interlock device requirement is not applicable.

Felony Offenses of DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence
If you are charged with DWI , Aggravated DWI, DWAI Drugs or DWAI Combined Influence after having been convicted of one of those offenses (or Vehicular Assault or Vehicular Manslaughter) within the past 10 years, you can be charged with a class E felony, and face the following potential consequences:

1. A fine of between $1,000 and $5,000, up to 4 years in state prison, or both;

2. A period of probation of 5 years;

3. Revocation of your driver's license for at least 1 year. In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you;

4. Note that while DMV will revoke your license for at least 1 year, the Court can also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that this condition of probation has been removed;

5. Discretionary revocation of your registration for at least 1 year;

6. A surcharge of $520;

7. A driver responsibility assessment of $250 a year for 3 years;

8. 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.

If your predicate conviction was within the past 5 years, you are subject to the following additional 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 charge is more than 5 years from your prior conviction, you may be eligible for a Conditional License. However, even if you are eligible to drive, the Court may prohibit you from doing so as a condition of probation.



If you are charged with DWI , Aggravated DWI, DWAI Drugs or DWAI Combined Influence after having been convicted of one of those offenses (or Vehicular Assault in the 1st or 2nd degree or Vehicular Manslaughter) TWICE within the past 10 years, you can be charged with a class D felony, and face the following potential consequences:

1. A fine of between $2,000 and $10,000, up to 7 years in state prison, or both;

2. A period of probation of 5 years;

3. Revocation of your driver's license for at least 18 months. In addition, DMV will require evidence of alcohol rehabilitation before it will ever relicense you;

4. Note that while DMV will revoke your license for at least 18 months, the Court can also, as a condition of probation, prohibit you from driving while you are on probation. If that is the case, DMV will not relicense you until you submit proof that this condition of probation has been removed;

5. Discretionary revocation of your registration for at least 1 year;

6. A surcharge of $520;

7. A driver responsibility assessment of $250 a year for 3 years;

8. 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.

If your predicate DWI convictions were within the past 5 years, you are subject to the following additional mandatory penalties:

1. 10 days in jail or 60 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;

3. 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.

Realistically, however, if you find yourself in this situation you will likely be going to jail or prison for substantially longer than this required minimum period.

Important Recent Changes to New York's DWI Laws
On September 25, 2012, the Department of Motor Vehicles promulgated "proposed" regulations that dramatically increase the sanctions for drivers with repeat alcohol- and drug-related offenses. It is important to note that these regulations do not affect revocation periods that are imposed by statute or by other regulation. These are waiting periods that are applied to applications for re-licensure, and are in addition to any revocation period.

These regulations are not only applicable to people revoked for alcohol- and drug-related driving convictions, they are also applicable to people who are not, otherwise, revoked, but have been convicted of a high-point driving violation (defined as bearing 5 or more points).

Lifetime Denial of Re-licensure
Motorists that are defined as "dangerous repeat alcohol or drug offenders" are subject to lifetime denial of re-licensure. This means:

1. Any driver who, within his or her lifetime, has five or more alcohol- or drug-related driving convictions or incidents in any combination; or

2. Any driver who, within the 25 years preceding the date of commission of a high-point driving violation, has three or four alcohol- or drug-related driving convictions or incidents in any combination and, in addition, has one or more serious driving offenses within the 25 years preceding the date of the commission of a high-point driving violation.

5-Year Waiting Period for Third Offense
In addition, there is a 5-year waiting period on any application for re-licensure where:

1. The person has 3 or 4 alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the revocable offense. (Note: Since this says the motorist has to have 3 or 4 alcohol- or drug-related driving convictions in existence prior to the date of the revocable offense under consideration, it would appear that you would have to be on your fourth such offense at the time of your application. DMV Counsel's Office advises that this is not the case, and that their interpretation is that this is applicable to anyone who has two prior convictions and is applying for re-licensure from the revocation arising from their third conviction;

2. The person does not have any serious driving offenses within the 25 years preceding the date of the revocable offense; and

3. The person is currently revoked for an alcohol- or drug-related driving conviction or incident.

Upon expiration of the 5-year waiting period, the Commissioner may approve the application for re-licensure, but the Commissioner must impose the "A2? restriction on such person's license for a period of 5 years and require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for this additional 5-year period. If that motorist, being a licensee with an A2 restriction, is later revoked for a subsequent alcohol- or drug-related driving conviction or incident; that motorist shall thereafter be ineligible for any kind of license to operate a motor vehicle, i.e., lifetime revocation.

2-Year Waiting Period

Where the motorist is revoked for a non-alcohol- or drug-related conviction; and has 3 or 4 alcohol- or drug-related driving convictions or incidents in any combination within the 25 years preceding the date of the offense for which they were revoked, they will face a 2-year denial of re-licensure in addition to the statutory period of revocation. The distinction between this 2-year period and the 5-year preceding period turns on whether the offense that they are presently revoked for resulted from an alcohol- or drug-related driving conviction or incident. Where it does not, then the 2-year waiting period is applicable.

In this case, the ignition interlock device is not required since the revocation was not for an alcohol- or drug-related driving conviction or incident. Akin to the 5-year waiting period, however, the 2-year waiting period is followed by 2 years of a restricted license pursuant to the A2 restriction. Similar to the 5-year provision, a subsequent revocation for an alcohol- or drug-related driving offense while under the A2 restriction will result in a lifetime ineligibility.

Second Conviction within 25 Years Mandates Standard Revocation

For second offenders, the rules have changed in one important respect. The person has to serve the full revocation period before they can have full privileges restored. Thus, completion of the Drinking Driver Program will not terminate the outstanding revocation. The person is in effect treated in the same manner as a person whose license was revoked pursuant to a chemical test refusal, or an underage offender.

 

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