What is the difference between the terms DWI, DWAI, DWI, OUI, etc.
These terms are all acronyms that refer to the crime commonly known as drunk driving. Different states have different names for the crime. For example, in Oregon, the term driving under the influence of an intoxicant or DUII is used; Massachusetts and Maine call the charge operating under the influence or OUI; Florida, Connecticut and numerous other states use the term driving under the influence or DUI.
Like many states, New York State law uses the terms driving while intoxicated(DWI) and aggravated driving while intoxicated (Aggravated DWI). New York also has a separate charge known as driving while ability impaired or DWAI. [Colorado is the only other state that uses the term DWAI.] More on those terms below.
I just got arrested for a State of New York DWI / DWAI charge. What happens now?
ISSUE ONE: The New York Implied Consent Proceeding: Your New York drivers license (or your right to drive in New York if you re not a New York licensed driver) was most likely revoked for a year or more if you refused a chemical (breath) test. You also face a $500 civil penalty. Read your paperwork carefully. It may be in your interest to challenge this revocation at a DMV hearing. Speak to your New York DWI hearing for more information.
ISSUE TWO: The New York Aggravated DWI / DWI / DWAI Case: Separate from the implied consent license revocation proceeding is the charge for DWAI, DWI, or Aggravated DWI. You were probably charged with one of the following offenses:
Driving while ability impaired (DWAI). Under New York law, it is unlawful to operate a motor vehicle while your ability to operate a motor vehicle is impaired by the consumption of alcohol. This offense is most commonly seen when a driver s BAC is between 0.05 and 0.07 percent.
Driving while intoxicated; per se (Per Se DWI). Under New York law, it is unlawful to operate a motor vehicle while you have 0.08 percent or more by weight of alcohol in your blood as shown by chemical analysis of your blood, breath, urine or saliva.
Aggravated driving while intoxicated; per se (Aggravated DWI). Under New York law, it is unlawful to operate a motor vehicle while you have 0.18 percent or more by weight of alcohol in your blood as shown by chemical analysis of your blood, breath, urine or saliva.
Aggravated driving while intoxicated; child in car (Aggravated DWI). Under New York law it is unlawful to driving while intoxicated with a child under 15 years of age in your vehicle.
Driving while intoxicated (DWI). Under New York law, it is unlawful to operate a motor vehicle while in an intoxicated condition.
Driving while ability impaired by drugs. Under New York law, it is unlawful to operate a motor vehicle while your ability to operate a motor vehicle is impaired by the use of a drug.
Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. Under New York law, it is unlawful to operate a motor vehicle while your ability to operate a motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.
Important: The implied consent proceeding and the criminal DWI / DWAI case are completely separate from one another.
Will my New York drivers license be revoked / suspended?
RELATED TO ISSUE ONE ABOVE: Your New York drivers license (or your right to drive in New York state if you do not have a valid New York license) may be revoked under implied consent law for refusing a chemical test. New York s implied consent law does not suspend or revoke a driver s license if they fail a breath or blood test (though many other states do so).
RELATED TO ISSUE TWO ABOVE: If you are convicted of the DWI or Aggravated DWI charge. you will also lose your license (or your right to drive in New York if you don t have a valid New York license) for a six months or more.
A DWAI conviction will also result in a suspension or revocation of your license.
Keep in mind that these conviction-based revocations are separate and distinct from the implied consent revocation. Talk to your NY DWI lawyer for possible suspension and revocation lengths for your situation.
Also keep in mind that your license can be suspended or revoked for a variety of reasons unrelated to a DWI / DWAI arrest e.g. excessive tickets, a hit and run conviction, etc.
What happens if I get caught driving while my license is suspended / revoked?
Aggravated unlicensed operation (AUO) of a motor vehicle should be avoided as it is a new crime. Most commonly, you ll face the charge of aggravated unlicensed operation in the second degree. This charge is common after an alcohol related suspension / revocation. Penalties include fines and possible jail time.
If you re on probation for a DWI / DWAI when you are arrested for unlicensed operation, you also face a probation violation hearing.
If you re driving while intoxicated and driving after a revocation, you may face a charge of AUO in the first degree. This is a felony charge.
I really need to drive. Will I be able to get a NY restricted / occupational / conditional permit / conditional / hardship license?
If you’re serving a revocation, for a first DWI / DWAI conviction and you participate in the Drinking Driver Program (DDP), you may be able to obtain a conditional license. If you receive a New York conditional license, it is valid to drive only:
- to and from work;
- on the job (if driving is part of your job);
- to and from a class at an accredited school, college, or university;
- to transport your child to and from child care or school if necessary to maintain your employment;
- to and from Drinking Driver Program classes and required evaluation or treatment;
- to and from a state or county motor vehicle office for business related to your conditional license;
- to and from court required probation activities;
- to and from medical treatment for you or a family member;
- during an additional three hour period each week .
The State of New York does not issue conditional licenses to drive commercial motor vehicles.
What is the New York State Drinking Driver Program (DDP)?
The Drinking Driver Program (DDP) is a government program designed to reduce recidivism among persons convicted of DWI. During the introductory phase of the program, participants discuss the social, medical, legal, and driver safety problems caused by alcohol and other drug abuse. The program includes classroom education, screening, and sometimes evaluation and treatment.
A DDP participant must attend seven weekly classroom sessions. Each session lasts two to three hours. If you satisfactorily complete the classroom sessions, your involvement in the DDP ends unless the program refers you for a formal evaluation and subsequent treatment. This referral may result from:
- the results of a written self assessment;
- two or more alcohol or drug-related driving convictions within the past 10 years;
- an arrest for an alcohol or drug-related driving offense while enrolled in the DDP;
- attending class under the influence of alcohol or drugs;
- a request by the student for help with a substance abuse problem, or an admission that the student is currently in treatment;
If you are referred for evaluation, you may choose a treatment provider from a list supplied by the DDP. [Note: If you are not satisfied with the results of the evaluation, you may contact the DDP director and request a second evaluation. However, you must accept the findings of the second evaluation.]
After the evaluation, you may be required to complete a substance abuse treatment program. If you fail to complete required evaluation and treatment, you will be dropped from the DDP and your conditional license will be revoked.
You will receive a Notice of Completion when you have completed all the requirements of the DDP. A copy of your completion notice will be sent to the NYS DMV. Depending on your license status and driving record, your license will be restored or you will be eligible to apply for a new drivers license.
Is a DWI offense in New York a misdemeanor or felony offense?
In New York state, a DWI is usually a misdemeanor crime. However, if you have a prior DWI offense in the past 5 – 10 years, the offense may be a felony crime. Also, getting a DWI with a child under 15 years of age in the car results in a felony offense under Leandra s law. Refer to the table below for more information.
DWAI offenses are generally infractions or misdemeanor offenses so long as the offense involves alcohol (and not drugs).
What type of penalties might I face if I am convicted of a New York DWAI / DWI offense?
Upon conviction of a New York DWI / DWAI offense, a defendant can receive a variety of penalties including substance abuse screening / treatment / education. A range of penalties is set forth below:
NEW YORK STATE DWI AND DWAI PENALTY CHART
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