In New York State Driving While Intoxicated involves operating a motor vehicle with a blood alcohol level of .08 or higher. The charge of driving while intoxicated may be based on a breath test or blood test, or it may be based on other factors that establish intoxication such as motorist being unsteady on his feet, blood shot eyes, the smelled of an alcoholic beverage on the motorist’s breath and slurred speech. Another words, it is not necessary for a motorist to submit to a breath test or chemical test to be charged with driving while intoxicated.

 

New York State DWI charges will be either a misdemeanor charge or a felony charge. Those charged with DWI for the first time will usually be charged as a misdemeanor. A defendant who has a previous conviction for driving while intoxicated within the past 10 years will be charged with Felony Driving While Intoxicated. Also, those charged with driving while intoxicated with a child under the age of 16 years old in the vehicle will be charged as a felony as well under Leandra’s law, regardless of the defendant’s lack of any prior DWI convictions. 

 

A motorist operating a motor vehicle with a blood alcohol level of .18 or higher may be charged with Aggravated Driving While Intoxicated under VTL Section 1192.2A.

A conviction for Aggravated Driving While Intoxicated carries more serious consequences than those charged with Driving While Intoxicated under VTL Section 1192.2 or VTL Section 1192.3.

 

Other provisions of the New York State VTL cover motorist who operate motor vehicles with drugs in their system resulting in an impairment of their ability, or with a combination of drugs and alcohol impairing their ability. An operator of a motor vehicle may be charged with Driving While Ability Impaired Due To Drugs ,VTL 1192.4 as well as Driving While Ability Impaired Due To A Combination Of Drugs And Alcohol (VTL 1192.4A.

 

A motorist charged with operating a motor vehicle with a blood alcohol level of greater than .05 %, and less than .08 may be charged with Driving While Ability Impaired by the Consumption of Alcohol, VTL 1192.1. This charge is a violation, not a criminal charge. However, if the motorist has a prior conviction for driving while impaired or driving while intoxicated within 5 years of the date of violation of the new charge, the motorist may be charged with a misdemeanor.

 

Those convicted of misdemeanor driving while intoxicated, VTL 1192.2, & VTL 1192.3, Aggravated Driving While Intoxicated, VTL 1192.2A, Driving While Ability Impaired Due to Drugs, VTL 1192.4 and Driving While Ability Impaired Due To A Combination Of Drugs And Alcohol, VTL 1192.4A may be sentenced to incarceration of up to 1 year or 3 years probation, or a combination of both incarceration and 3 years probation with the incarceration not to exceed 60 days when combined with probation. Upon conviction, the court must also impose a post-conviction license revocation of at least 6 months as well as a fine and surcharge. 

 

A conviction for Driving While Ability Impaired Due To Alcohol, VTL 1192.1, carries a sentence of up to 15 days incarceration and a post-conviction license suspension of 90 days in addition to fines and surcharges.

 

 

Those charged with driving while intoxieir license for a certain amount of time. Those who have taken a breath test and are then charged with misdemeanor driving while intoxicated will receive a 30 day suspension of their driver’s license simply based on being charged with Driving While Intoxicated. The 30 day suspension starts from the date of the arrest. If the motorist had a valid New York State driver's license at the time of the arrest he or she may be eligible to obtain a hardship license from the court. A hardship license permits a motorist to go to and from their place of employment, to and from school, and / or to and from medical appointments. It is up to the court however to decide the parameters of the hardship license including the days of the week the motorist may operate the vehicle, the times at which the motorist can operate the vehicle and the address the motorist may travel to, and the address the motorist may travel from. The hardship license has very strict rules of operation and only permits driving during specified times of the day, and to and from the specific locations agreed to by the court during the 30 day suspension period. To obtain a hardship license the court must conduct a hearing to who will determine whether or not to issue the hardship license as well as the parameters of any hardship license granted. After the 30 day suspension period the license suspension is lifted and the license status will revert back to as it was prior to thell revert back to as it was prior to the imposition of the suspension providing no other suspensions, (usually unrelated) are imposed by DMV in the meantime. An example would be, failing to pay a fine that was due for an unrelated speeding ticket. 

 

A motorist charged with Driving While Intoxicated who is alleged to have refused to take a breath test, will have their license suspended by the court at the arraignment, pending what is referred to as a refusal hearing at the DMV a few days later. Those who win the hearing will have their license reinstated. Also, if the officer who needs to testify fails to show up, the administrative law judge overseeing the hearing will often reinstate your license pending a new hearing date. Those who lose the refusal hearing or fail to show for the DMV hearing will have their license revoked for a minimum 6 months, or for 1 year for those under the age of 21 at the time of the arrest. In addition, DMV will impose a civil penalty of at least $500.00 for refusing to take the breath test.

 

With the advent of new legislation in New York, DWI cases, and other alcohol related offenses have become much more complex than in the past often requiring alcohol evaluations, alcohol testing, and treatment, and the installation of ignition interlock devices.