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The DUI / DWI / DWAI Defense Legal NY Resource Center is sponsored by Acocella Law Group, a criminal defense law firm based in New York City. This website was created to fully inform members of the New York community who have been charged with DWI, DUI, or DWAI of their legal rights.

What Do DWI (or DUI) And DWAI Mean In New York City?

DUI (Driving Under Intoxication) and DWI (Driving While Intoxicated) can, in most cases, be used interchangeably to describe the same charge. Some states use DUI while others use DWI. New York State, and thus the five boroughs of New York City, use DWI. According to the New York State Department of Motor Vehicles (DMV), a driver can be charged with DWI when they are found to have been operating a vehicle with:

A Blood Alcohol Content (BAC) of 0.08% or higher or other evidence of intoxication
A BAC of 0.04% or higher if you are operating a commercial vehicle, like a truck
A BAC of 0.02% or higher if you are younger than 21
As you may have noticed, DWI is used only in reference to drivers charged with operating a vehicle under the influence of alcohol. Blood Alcohol Content (BAC) is a measure of the amount of alcohol in your blood. In most cases, a police officer will observe erratic or abnormal driving behavior, pull the driver over, and administer a blood alcohol test.

Blood Alcohol Content (BAC) And Driving While Intoxicated (DWI) Charges

Blood alcohol tests come in three primary forms:

  • Breath – The most common type of BAC test used by law enforcement in America is the breathalyzer. As blood flows through your lungs, so does any alcohol that is contained in your blood. Some of this alcohol is expelled in your breath and a breathalyzer, or breath analysis device, picks up on the percentage almost immediately.
  • Blood – Generally, a blood test is the most accurate way to determine a driver’s BAC. But it takes a long time for the results of a blood test to be reached, so blood testing is less common than breathalyzer testing.
  • Urine – 

In New York State, the police are not required to secure your consent before administering any test for Blood Alcohol Content. New York’s Vehicle and Traffic Law § 1194(2)(a) states that anyone driving in the state implicitly consents to taking a blood alcohol test. You can refuse, but refusing a chemical test carries a price of its own. Drivers can be charged with Chemical Test Refusal, fined up to $550, and have their New York State driving licences revoked for up to 18 months.

A study performed by the National Highway Traffic Safety Administration found that drivers who refuse chemical tests, and are then convicted of DWI or DWAI, receive longer jail sentences and higher fines than those who do not.

Other Alcohol Or Drug Related Driving Offenses In New York

In addition to Driving While Intoxicated, which is a criminal misdemeanor, there are several other legal violations with which intoxicated drivers may be charged. In legal terms, “intoxication” is equivalent to what we mean when we say someone is “drunk” in everyday language. In New York, you can be charged with a violation even when you are not technically “intoxicated,” or “drunk.”

  • Driving While Ability Impaired (DWAI) – DWAI is a traffic infraction, rather than a criminal misdemeanor. You can be charged with DWAI if your Blood Alcohol Content is found to begreater than 0.05%, but less than 0.08%.
  • DWAI / Drugs – Essentially the same as DWAI, but the driver was found to be intoxicated by a drug other than alcohol.
  • DWAI / Combination – Driver was impaired by both drugs and alcohol.
  • Aggravated DWI (A – DWI) – A criminal misdemeanor charged against those driving with a BAChigher than 0.18%.

Repeat offenses carry their own distinct charges. For example, if you are charged with DWI twice in a span of 10 years, your second charge will be considered a Second DWI violation – a class E felony with penalties far more severe than a first-time DWI.

Find Out More »

What Will My DWI Penalties Be?

If you are charged with a DWI in New York City, the state requires that your driver’s license be suspended before prosecution. In certain circumstances, the court may issue a temporary driver’s license during this pre-conviction period. For example, if you are your family’s primary source of income, the court may issue you a “hardship license,” so you can drive to work. If you are convicted of an alcohol or drug related driving offense in New York, the penalties you receive will be based on several factors, including your age, what substance impaired you, whether you were driving a passenger or commercial vehicle, and whether you consented to a chemical test.

DWAI-IconDriving While Ability Impaired
 If convicted of DWAI ( a B.A.C. higher than .05% and less than .08%) in New York City, you face up to 15 days in jail, a $500 fine, and a 90 day suspension of your driver license.
DWI-IconDriving While Intoxicated
 If convicted of DWI( a B.A.C. higher than .08%), you may face fines up to $1,000 and a 1 year misdemeanor jail sentence.
DWAI_Drug-IconDriving While Impaired By A Drug (DWAI – Drug) DWAI by Drugs can include illegal drugs or prescription drugs (whether you hold the script or not). Fine of up to $1,000 and jail sentence up to 1 year.
(A – DWI) 
Upon being convicted for driving with a Blood Alcohol Level above .18%, you face a maximum jail term of 1 year and a fine of up to $2,500.
Underage drinking & driving with a BAC of 0.02% or higher, you face a 6 month license suspension and $125 civil fine. You may also be enrolled in the New York Drinking Driver Program at your own expense.


What Should I Do If I Have Been Charged With A DWI / DWAI?

If you have been charged with a drug or alcohol related driving offense in New York City, we understand that this may be a difficult time for you. Many drivers report feelings of embarrassment and shame after being charged. But a defense is possible, and DUI charges are beaten every day. You have rights. The DUI defense lawyers at Banville Law are committed to representing New York City’s drivers. It is our mission to make you feel as comfortable with this process as possible. Our legal offices are located in Manhattan, but we regularly represent clients in the areas listed below:

  • Queens
  • Queens County
  • Suffolk County
  • Kings County
  • The Bronx
  • Long Island
  • Staten Island
  • Brooklyn
  • Manhattan

Contact our attorneys for a free consultation.