While it is important to act quickly to hire a lawyer to represent you, it is equally important to find the right lawyer. If you are here, it probably means that you have already been charged with a DWI and are looking for an attorney to represent you.
We believe that understanding is the first step to getting past DWI and moving on. The tabs of this "NY DWI in Brief" contain an overview of the typical DWI charge and includes information we typically provide in the initial consultation.
DWI in Brief
In the "Law" tab, you will learn about the law that governs the DWI charge in NY.
In "Procedure", you will learn about the court appearances, evaluators, and other participants in the typical DWI case.
In "Consequences", you will learn about the fines, fees, classes, and penalties in a typical DWI case.
A typical case is a driver facing their first DWI charged with a BAC between .1 and .18 who accepted a negotiated plea to a lesser charge.
Your case may be different. It may be complicated by a high BAC, prior DWI/DWAI convictions, or by driving child in the car with during the arrest. On the other hand, it may have facts that may make the legal consequences less severe. It is impossible to determine without discussing your case with you. However, this brief outline will give a good overview of how a case typically proceeds.
New York DWI Law
The “DWI Law” in New York is contained in Vehicle and Traffic section 1192. The law includes 6 separate offenses, here we will cover 2 most common; Driving While Intoxicated (DWI) and Driving While Ability Impaired (DWAI).
A DWI charge alleges that a driver operated a vehicle with a BAC greater than .08.
A BAC of .18 or more is an aggravated DWI
A DWAI charge alleges that a driver operated a vehicle while impaired by alcohol.
A DWI is a misdemeanor, and if you are convicted of DWI you will have a criminal record. A DWAI is a violation, and it means you will not have a criminal record.
Your may have noticed that your papers that you appear to charged with 2 counts of DWI, 1192(2) and 1192(3). By charging under both sections the prosecutor has the option to prove either one. Under 1192(2) the prosecutor must prove a BAC of at least .8; this is typically done with a breath test. Under 1192(3), the prosecutor must prove that driver operated a vehicle in an intoxicated condition; this is done primarily with field sobriety tests and police observations at the scene.
Even if the prosecutor can prove DWI both ways, that does not mean that you face two counts of DWI because the counts are deemed to merge into one at the point of conviction. But it does give the prosecutor two separate ways to prove the charge against you. This underscores the importance of hiring a competent and experienced attorney to represent you.
The Procedure from Arrest to Resolving the Case
After being arrested and released, you are wondering what will happen at your first court appearance.
At that first appearance in court with a lawyer, the Judge will suspend your driving license under New York's prompt suspension law. However, this does not always mean that you will be unable to drive entirely. At this point, we typically make an application to the court for a "Hardship Privilege."
A hardship privilege is a limited driving privilege granted by the court that allows you to drive while your case is pending. Typically, this means you can drive to and from work, school, and medical appointments. This application is made with an affidavit, or sworn document, that we prepare for you.
Next, we will send you to alcohol evaluator who will interview you about your background and your relationship to alcohol. The evaluator will make recommendations regarding your case. We will help you arrange this appointment. Typically we will have you evaluated as soon as possible.
After your evaluation, we will meet with the district attorney about your case. Your evaluation, your history, and other factors will be important in these meetings. Depending on the facts of your case, this process may be relatively fast or may take some time. This time period can range from weeks to several months.
After we have a proposed disposition to your case, we will discuss it with you. If the proposed plea bargain is the best way to proceed and you agree, at your next court date, you will plead guilty.
Costs and Consequences: At and After Your Final Court Date
At your final appearance in Court, you will plead guilty. At this time, any Hardship Privilege that we secured at your first court date will expire and the court will suspend your license upon the guilty plea. Does that mean you can no longer drive?
Not always. If you are eligible, you may get a Conditional license from the DMV. It is likely that, sometime after your first court date, the DMV sent you information about the conditional license in the mail.
The Conditional License is like the Hardship Privileged in that it allows you to drive to work, school, and medical appointments but is different in important ways. First, the DMV, and not the court issues conditional licenses and to be eligible for one you must participate in the New York Drinking Driver Program (DDP). The DDP is a series of 7 classes over 7 weeks for a total of 16 hours of class time.
To give you the opportunity to make the arrangements to take the DDP and get your conditional license, we will ask the court for a 20-day stay of the suspension. That means you will have 20 days before your driver's license suspension takes effect to get to the DMV to register for the DDP and get your conditional license.
In many cases, our goal is to negotiate the reduction of DWI charge to DWAI charge.
If you are convicted of Driving While Ability Impaired (DWAI) in New York
A conviction for the first DWAI, either after trial or as a result of plea bargain, is a non-criminal offense and the penalties are:
- A fine between $300-$500 and up to 15 days in jail, or both a fine and jail.
- A Court surcharge of $265
- A DMV Driver Responsibility fine of $250 each year for 3 years for a total of $750.
- A Period of Probation or Conditional Discharge
- Driving License Suspension
If you are convicted of Driving While Intoxicated (DWI) in New York
A conviction for the first DWI, either after trial or as a result of plea bargain, is a misdemeanor crime and the penalties are:
- A fine between $500-$1,000 and up to 1 year in jail, or both a fine and jail.
- A Court surcharge of $395 (rates periodically increase)
- A DMV Driver Responsibility fine of $250 each year for 3 years for a total of $750.
- Installation of an Ignition Interlock Device on the driver’s vehicle for a period of not less than 6 months.
- Driving License Suspension
- A Period of Probation or Conditional Discharge
- A permanent criminal record
In addition, the fee for the Drinking Driver Program total approximately $300 and the alcohol evaluation is approximately $200.