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What is DWI/DWAI

In New York, the DWI/DWAI statute under the Vehicle and Traffic Law (VTL) contains the following separate offenses:

1)  VTL § 1192(1) - Driving While Ability Impaired by Alcohol:  This offense “Prohibits a person from operating a motor vehicle while the person’s ability to operate the vehicle is impaired by the consumption of alcohol.  This charge is usually filed when an individual has more than .05 of one per centum but less than .08 of one per centum of alcohol in the person’s blood, as shown by chemical analysis of such person’s blood, breath, urine or saliva, or when evidence is not sufficient to charge a person with DWI. For a first time offense, which is considered a violation, the penalty is a fine of between $300 to $500, or 15 days in jail, or both.  Penalties increase for those who have prior convictions.  License suspension and revocation may also apply.”

2)  VTL § 1192(2) - Driving While Intoxicated:  This offense prohibits a person from operating a motor vehicle while such person has .08 of one per centum or more of alcohol in the person's blood, as shown by chemical analysis of such person’s blood, breath, urine or saliva.  For a first time offense, which is deemed a misdemeanor, the penalty is a fine of $500-$1,000 or up to one year in prison, or both.  Penalties increase for those who have prior convictions. License suspension and revocation may also apply.

3)  VTL § 1192(2-a) - Aggravated Driving While Intoxicated, Per se:  This offense takes place when a driver operating a vehicle “while such person has .18 of one per centum or more by weight of alcohol in such person’s blood, breath, urine or saliva.”  This is a misdemeanor, punishable by a fine of “not less than $1,000 nor more than $2,500” or a maximum jail term of up to one year, 3 years probation or a combination of all three. License revocation will apply.

4)  VTL §1192(3) - Driving While Intoxicated/Common Law:  This offense states that, "No person shall operate a motor vehicle while in an intoxicated condition." This is referred to sometimes as a Common Law DWI. No breath test is needed, only the officer’s opinion based on attributable facts. This is usually based on the officer’s observation (defendant’s speech, driving, odor of alcohol, sobriety test, etc.) his experience and training. For a first time offense, which is deemed a misdemeanor, the penalty is a fine of $500-$1,000 plus a surcharge or up to one year in prison, 3 years probation or a combination of all three.

5)  VTL § 1192 (4) - DWAI Drugs: This offense takes place when a “person’s ability to operate… (a) motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.” This is a misdemeanor punishable by a fine “of not less than $500 nor more than $1,000” or a maximum jail term of one year, probation or a combination of all three.

6)  VTL § 1192(4-a) - DWAI by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs:  The standard for this self-explanatory offense is the same as for DWAI, only the impairment can be from a combination of certain drugs or of alcohol and a drug or drugs.