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What are the types of drinking and driving offenses in New York?

Zero Tolerance Law

The Zero Tolerance Law was enacted November 1, 1996.  The law makes it an infraction for a person under age 21 to drive with a BAC of between .02% and .07%.  A conviction on this charge will result in a mandatory license suspension for 6 months, a fine of $125, a DMV fee of $125, as well as a possible registration suspension.  If you are charged solely with a Zero Tolerance Law infraction, the matter is handled within the Department of Motor Vehicles.

Driving While Ability Impaired (DWAI)

The DWAI law makes it an infraction for a driver to operate a vehicle when their ability to do so is impaired by the consumption of alcohol.  A DWAI charge can be based on the police officer's observations, field sobriety tests, or where the driver has a BAC of between .05% - .07%.

If you are 21 or over and convicted of DWAI, your conviction will result in a fine between $300 and $500 and/or a maximum 15 days in jail.  You will be subject to a mandatory state surcharge of $260 and your license will be suspended for 90 days.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years.

A second conviction for DWAI within 5 years will result in a fine between $500 and $750 and/or a maximum of 30 days in jail.  You will be subject to a mandatory state surcharge of $260 and your license will be revoked for 6 months.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years.

If you are under 21 and convicted of DWAI, your conviction will result in a fine of between $300 and $500 and/or a maximum 15 days in jail.  You will be subject to a mandatory state surcharge of $260 and your license will be suspended for at least one year.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years. 

Driving While Intoxicated Per Se (DWI .08)

Driving While Intoxicated with a BAC of between .08 and .17, as shown by chemical analysis of such person' blood, breath, urine or saliva, is a misdemeanor.  "Per se" means of, in, or by itself without reference to additional facts. The charge is based upon the results of the test of the driver's BAC.  It is common for a driver charged with DWI Per Se to also be charged with DWI Intoxicated Condition.

If you are 21 or over, a first conviction on this charge will result in a fine of between $500 and $1,000, a mandatory state surcharge of $400, up to one year in jail, and a license revocation of 6 months.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years.

Driving While Intoxicated, Intoxicated Condition (DWI Intox)

Driving while in an intoxicated condition is a misdemeanor.  A driver's intoxicated condition may be determined by, and the charge may be based on, the police officer's observations.  That is, the police officer may detect an odor of an alcoholic beverage on a driver's breath, they may observe erratic driving, they may detect slurred speech, glassy eyes, nystagmus in the driver's eyes, or many other indications that the driver is in an intoxicated condition.  This charge is sometimes referred to as "Common Law DWI" because it does not require any chemical testing.  Therefore, a driver who refuses to take the breathalyzer test will likely be charged with Driving in an intoxicated condition regardless of their refusal to take the test.

The penalties for a conviction are the same as a conviction for DWI Per Se.  If you are 21 or over, a first conviction on this charge will result in a fine between $500 and $1,000, a mandatory state surcharge of $400, up to one year in jail, and a license revocation of 6 months.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years.

Aggravated Driving While Intoxicated (ADWI .18)

Driving While Intoxicated with a BAC of .18 or over, as shown by chemical analysis of such person' blood, breath, urine or saliva, is a misdemeanor. It is common for a driver charged with ADWI to also be charged with DWI Intoxicated Condition.

If you are 21 or over, a first conviction on this charge will result in a fine of between $1,000 and $2,500, a mandatory state surcharge of $400, up to one year in jail, and a license revocation of one year.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years.

Driving While Ability Impaired by Drugs (DWAI Drugs)

New York Law makes it a misdemeanor to operate a motor vehicle while the driver's ability to operate the vehicle is impaired by the use of a drug.

If you are 21 or over, a first conviction on this charge will result in a fine between $1,000 and $2,500, a mandatory state surcharge of $400, up to one year in jail, and a license revocation of six months.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years.

Driving While Ability Impaired by the combined influence of drugs or of alcohol and drugs (DWAI Drugs and Alcohol)

New York Law makes it a misdemeanor to operate a motor vehicle while the driver's ability to operate the vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.

If you are 21 or over, a first conviction on this charge will result in a fine between $500 and $1,000, a mandatory state surcharge of $400, up to one year in jail, and a license revocation of six months.  You will also be required to pay the Driver Responsibility Assessment to the Department of Motor Vehicles, which costs $250 per year for 3 years.

Aggravated Driving While Intoxicated with Child Passenger (ADWI Child in Vehicle or "Leandra's Law")

Driving While Intoxicated with a child passenger age 15 or younger is a Class E Felony and is known as "Leandra's Law." 

What is Leandra's Law?

Leandra's Law was enacted on November 18, 2009 in honor of Leandra Rosado, an 11-year who was killed in a vehicle driven by an intoxicated adult.  The law makes it a Class E Felony to operate a vehicle while impaired by alcohol or drugs with a child who is 15 years of age or younger in the vehicle.  The law also requires a person convicted of DWI to install an Ignition Interlock Device on every vehicle they own or operate for a period of at least six months.

What is an Ignition Interlock Device?

An Ignition Interlock Device connects to a vehicle's ignition system.  Before the vehicle can be started, the driver must provide a breath sample.  The interlock device measures the alcohol content of the operator's breath and prevents the vehicle from being started if the breath sample contains over .02% of alcohol. If a court requires a driver to install an ignition interlock device, this restriction will be reflected on the driver's license.

When is the Ignition Interlock Device Required?

The Court must require a defendant to install the Ignition Interlock Device whenever the defendant is convicted of one of the following offenses, even if it is their first offense:

  1. DWI;
  2. Aggravated DWI;
  3. Leandra's Law (Aggravated DWI with a child age 15 or younger in the vehicle)

Is the Ignition Interlock Device Required for my first DWI Conviction?

Yes, if you are convicted of DWI, ADWI, or Leandra's Law.

Is the Ignition Interlock Device Required if I am convicted of Impaired Driving?

No.  The Ignition Interlock Device is not required if a driver is convicted of the following:

  1. Driving while ability impaired (DWAI);
  2. Driving while ability impaired by drugs; or 
  3. Driving while ability impaired by drugs and alcohol.

How does the Ignition Interlock Device Work?

Before the vehicle can be started, the driver must provide a breath sample.  The interlock device measures the alcohol content of the operator's breath and prevents the vehicle from being started if the breath sample contains over .02% of alcohol.

If the driver fails the initial breath test, the vehicle will not start.  The Ignition Interlock Device will request another breath sample within 5 to 15 minutes.  If the driver fails the second test or fails to provide a breath sample, the car will completely disable itself within 5 days.  The driver must return the vehicle to the Ignition Interlock Device Vendor within that time period.

If the driver passes the initial breath test, the vehicle will start.  The Device will request a second breath sample from the driver within 5 to 15 minutes of operating the vehicle.  This is known as a "Rolling Re-Test."  If the driver fails to take the Rolling Re-Test within 6 minutes of the Device requesting a breath sample, the vehicle's headlights, taillights, and horn will activate continuously and uncontrollably.  It is a crime to tamper with the vehicles lights or horn in order to prevent the alarm.

If the driver passes the Rolling Re-Test, the Device will request a new breath sample from the driver approximately every 30 minutes that the car is being operated.

How does the driver provide a breath sample for the Ignition Interlock Device?

The Device is manufactured in such a way as to prevent drivers from providing artificial breath samples.  The driver must hum and blow at the same time, which prevents drivers from utilizing an air compressor or some other artificial method of blowing air into the Device.

How does the device know who is giving the sample?

Most Devices are also equipped with a camera which takes a photograph of the driver and all passengers in the vehicle at the time of the test.  This feature guarantees that the person providing the breath sample is the driver of the vehicle.  Some Devices are equipped with infra-red cameras that operate in the dark.

Where are the results of the tests sent?

The Device reports test results to the probation authorities and to the court that imposed the sentence.

My license is suspended.  Can they still require me to have an Ignition Interlock Device?

The Ignition Interlock Device is required for all vehicles that the convicted defendant owns or operates, regardless of whether they have a valid driver license and regardless of whether their driving privileges have been suspended or revoked.

How much does an Ignition Interlock Device Cost?

The cost of the Device varies depending on the vendor.  The most affordable Device available in Western New York is approximately $500 to $600 for 6 months. 

What if I am convicted of a drinking and driving offense outside New York State?

As of November 1, 2006, an out-of-state conviction is treated as if the offense was committed in New York.  For example, if the driver is convicted in another state of driving with .08% blood-alcohol content, the driver is treated as if he or she was convicted of DWI in New York State.

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