One of our attorneys, Martin Bonventre, from our Albany office takes a dive into one of the most frequently asked questions: what do the different DWI laws in New York mean?
Every state has their own laws against driving while intoxicated. In New York, the laws are found in the Vehicle & Traffic Law §1192. This article will breakdown the different laws in New York and what actions you can take to protect yourself.
Alcohol Driving Offenses
Alcohol driving offenses in New York can be broken down into two categories: (1) those that rely on a blood alcohol content and (2) those that do not. This means that New York law prohibits individuals from driving with a blood alcohol content, or BAC, above a certain threshold as well as prohibits individuals from driving when intoxicated, regardless of the blood alcohol content.
Many people are familiar with the idea that they cannot drive if their BAC is 0.08% or higher. This is a violation of Vehicle & Traffic Law §1192.2 and is called DWI Per Se – per se being Latin for by itself. This means there need not be evidence that a motorist is actually affected by the alcohol. Instead, regardless of the motorist’s tolerance or behavior, it is against the law to drive with a BAC at or above 0.08%, by itself. Similarly, the charge of Aggravated DWI, Vehicle & Traffic Law §1192.2-a.a, prohibits an individual for driving with a BAC of 0.18% or higher, again by itself and regardless of the individual’s tolerance or behavior. To be convicted of DWI Per Se or Aggravated DWI, the prosecutor needs to prove only that (1) the motorist was driving a car and (2) the motorist’s BAC was at or above the limit.
On the other hand, it is against the law for an individual to drive while intoxicated by alcohol, regardless of their BAC. This is a violation of Vehicle & Traffic Law §1192.3 and is frequently called Common Law Driving While Intoxicated. The law defines “intoxicated” as being incapable, to a substantial extent, of using the physical and mental abilities expected of a reasonable and prudent driver. To determine if someone is “intoxicated,” one can consider the motorist’s physical condition and appearance, balance and coordination, and manner of speech; whether there was a smell of alcohol; how the motorist’s operated the motor vehicle; the police officer’s opinion about the motorist’s sobriety; and whether there was an accident and the circumstances surrounding it. Additionally, although an illegal BAC is not necessary to convict, one can consider the results of any BAC test. The law states a BAC of 0.08% or more creates a presumption that the person is intoxicated while a BAC of 0.07% or less creates a presumption that the person is not intoxicated. To be convicted of Common Law DWI, the prosecutor needs to prove only that (1) the motorist was driving a car and (2) the motorist did so while intoxicated.
You may find yourself asking, why is it illegal to drive with a BAC above an particular limit if the motorist is not acting intoxicated? Or, why is it illegal to drive when behaving intoxicated, even if the motorist’s BAC is below the legal limit? The logic behind it is that although a person may have a high tolerance and be able to appear sober despite their high BAC, likely their reflexes are slower and therefore they pose a greater risk to other motorists or pedestrians on the roadway. On the other hand, even if a motorist’s BAC is below the legal limit, their tolerance may be such that their reflexes and mental abilities are substantially affected even at that low BAC. Furthermore, there are situations where the police are unable to get a BAC and society does not want someone to escape consequences of driving while intoxicated for this reason.
All of the above charges, Common Law Driving While Intoxicated (no BAC necessary), DWI Per Se (BAC at or above 0.08%), and Aggravated DWI (BAC at or above 0.18%) are misdemeanors. This means that a conviction to any one of these will cause an individual to have a criminal record.
In New York, there is a non-criminal version of DWI called Driving While Ability Impaired by Alcohol, DWAI-Alcohol, a violation of Vehicle & Traffic Law §1192.1. Similar to Common Law DWI, this does not rely on a specific BAC, but instead prohibits a motorist from driving when the consumption of alcohol has actually impaired, to any extent, the physical and mental abilities expected of a reasonable and prudent driver. To determine if someone is “impaired,” one can consider all the same factors listed above for Common Law DWI. As with Common Law DWI, the BAC can play a role – a BAC of 0.07% or more creates a presumption that the person is impaired and a BAC of 0.05% or less creates a presumption that the person is not impaired. To be convicted of DWAI-Alcohol, the prosecutor needs to prove only that (1) the motorist was driving a car and (2) the motorist did so while impaired by alcohol.
In New York, there are only two circumstances where a DWI can be a felony: (1) when there is a child in the car and (2) when there is a past conviction. The charge of Aggravated DWI – Child in Vehicle, is based on Vehicle & Traffic Law §1192.2-a.b. This law prohibits driving while intoxicated when there is a child who is 15 years old or younger in the car. This elevates the crime of DWI, either Common Law or Per Se, from a misdemeanor to a felony based on there being a child passenger. If the motorist is found not guilty of DWI, but guilty of DWAI-Alcohol, then the person is not guilty of Aggravated DWI – Child in Vehicle.
The other circumstance where a DWI is a felony is if the motorist was previously convicted of misdemeanor DWI – either Common Law, Per Se, aggravated – or misdemeanor DWAI-drugs or DWAI-combined influence, discussed below. If there is one prior conviction within the past 10 years, then it is an E-felony with a maximum sentence of 1.3-4 years in state prison. If there are two convictions within the past 10 years or three convictions within the past 15 years, then it is a D-felony with a maximum sentence of 2.3-7 years in state prison.
Drug Driving Offenses
Drug driving offenses are different from alcohol driving offenses in two major ways: (1) there are not different levels of offenses for impaired, intoxicated and aggravated, and (2) they are not split into the two categories with one depending on blood content and the other not. For drug driving offenses, the law does not consider intoxication but focuses on impairment. The violation of Vehicle & Traffic Law §1192.4, Driving While Ability Impaired by Drugs, does not require the higher standard of intoxicated, which was defined above as being incapable to a substantial extent of being a reasonable and prudent driver; instead, the law says a motorist cannot drive if the use of drugs has actually impaired, to any extent, the driver’s ability to be reasonable and prudent. Additionally, there is no offense of per se impairment or a requirement that there be evidence that the blood contains drugs. Just as with Common Law DWI, to determine if someone is “impaired,” one can consider the motorist’s physical condition and appearance, balance and coordination, and manner of speech; whether there was a smell of a drug; how the motorist’s operated the motor vehicle; the police officer’s opinion about the motorist’s sobriety; whether there was an accident and the circumstances surrounding it; and whether a blood test concluded the presence of drugs in the blood.
In addition to the offense of DWAI-Drugs, the law also prohibits driving while impaired by the combination of drugs and alcohol in Vehicle & Traffic Law §1192.4-a, Driving While Ability Impaired by Combined Influence. Just as with DWAI-Drugs, the law prohibits driving while merely impaired and does not require a particular blood content. To be convicted of DWAI-Drugs or Combined Influence, the prosecutor needs to prove only that (1) the motorist was driving a car and (2) the motorist did so while impaired by drugs, or a combination of drugs and alcohol.
Both DWAI-Drugs and DWAI-Combined Influence are misdemeanors. As the law requires only impairment for these crimes, there is no lessor non-criminal offense as there is with alcohol. As with the alcohol offenses, DWAI-Drugs and DWAI-Combined Influence are elevated to felonies when there is a child in the car or when there are past convictions. Like with the alcohol offenses, it is an E felony punishable by up to 1.3-4 years state prison to driving while ability impaired by either drugs or a combination of drugs and alcohol when there is a child who is 15 years old or younger in the car. Also like with the alcohol offenses, one prior conviction for any misdemeanor alcohol or drug driving offense within the past 10 years elevates the charge to an E-felony with a maximum sentence of 1.3-4 years in state prison. Similarly, if there are two convictions within the past 10 years or three convictions within the past 15 years, then it is a D-felony with a maximum sentence of 2.3-7 years in state prison.
How To Protect Yourself
The simplest way to protect yourself from being charged with these crimes is to never drive after drinking or using drugs. This is challenging for many people and would eliminate many legal activities. For example, it is not against the law to drive after having drank any alcohol. The law allows a motorist to go to happy hour or to have a glass of wine with dinner, and then drive home. The key is know yourself and know how much alcohol you are consuming.
The general rule is that “one drink” causes the average person’s BAC to go up 0.02%. Keep in mind this can be deceiving – it is an average and a generalization. For example, one beer would cause a 100 pound person’s BAC to go up more than a 250 pound person’s BAC. Additionally, factors such as how much a person ate, when they ate, and what they ate can affect their BAC. It is also important to keep in mind that one drink may not be “one drink.” The general rule is based around a one 12 ounce light beer, one 1 ounce shot, or one 4 ounce glass of wine. So, a pint of a IPA, which is 33% larger than a 12 ounce beer and often contains 50% more alcohol than a light beer, is equivalent to about two “drinks.” Similarly, the glass of wine at many restaurants is closer to 8 ounces than 4. The same holds true with shots. Therefore, remember this general rule is only a guideline.
With regards to drugs, it is important to know that a motorist can be convicted of DWAI-Drugs even if they are taking prescription drugs as recommended by a doctor. The fact that the drugs are prescription is NOT a defense to DWAI-Drugs. Be careful to know how the drugs affect you and do not drive if they impair your ability to any extent.
If you find yourself stopped and you are concerned that you may be arrested for any of these offenses, it is recommended that you be polite and tell the officer you wish to speak to an attorney. You are not required to do any field sobriety tests or submit to any test that will measure what is in your blood. However, there may be consequences for such refusals.
The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.
