New York’s DWI and DWAI Laws and Conviction Penalties

The consequences of a 1st, 2nd, and 3rd DWI/DWAI in New York.

Like all states, New York prohibits driving while under the influence of drugs or alcohol. New York has two classifications of intoxicated driving— "driving while intoxicated" (DWI) and "driving while ability impaired" (DWAI)—that carry slightly different penalties.

This article outlines how these two violations differ and what is required to be convicted of either offense. This article also outlines the possible penalties for a DWAI/DWI conviction as well as some alternative sentencing options.

New York's DWI and DWAI Laws

Despite the differences, all impaired driving charges generally involve two components. The prosecutor must prove that the accused was:

  • "operating" a motor vehicle, and
  • under the influence (either intoxicated or impaired) of alcohol or drugs.

The first part the prosecution must prove (vehicle operation) is the same for a DWI and DWAI. However, the second element is where the two offenses differ.

What It Means to "Operate" a Vehicle Under New York's DWI Laws

Obviously, you can be convicted of a DWI or DWAI if you were steering a moving vehicle down the road. However, New York's definition of operation also includes the intentional manipulation of any mechanical or electrical agent to engage the motive power of the vehicle.

Basically, doing things like turning on the ignition, shifting gears, or even sitting in the front seat can result in a DWI or DWAI conviction under this broad definition of operation.

Proof of "Impairment" for a New York DWAI Conviction

Impairment—the standard for a DWAI conviction—is considered a lower standard than intoxication and only requires proof that the driver's ability to operate was impaired or lessened to any extent.

While there is no per se violation (explained below) for a DWAI, a driver with a BAC of .07% or more is presumed to be impaired. A driver with a BAC of .05% or less is presumed to be sober. These presumptions can be overcome at trial by other evidence. In other words, the presumptions aren't conclusive on the issue of impairment.

Proof of Intoxication for a DWI Offense in New York

As a more serious offense, a DWI conviction requires proof that the driver was incapable of employing the mental and physical capabilities required to operate a vehicle as a reasonable and prudent driver.

However, a driver with a blood alcohol content (BAC) of .08% or more is per se guilty of DWI. Where there's proof of a BAC that's above the legal limit, the driver can be convicted without evidence of actual impairment.

Penalties for a 1st, 2nd, and 3rd DWAI and DWI in New York

DWAI convictions and DWI convictions generally carry different penalties. The penalties also differ depending on whether the offense involved only alcohol (and not drugs).

Jail, Fines, and Probation for Alcohol-Based DWAI Convictions in New York

The chart below outlines the range of jail time, fines, and probation requirements for a first, second, and third alcohol-based DWAI conviction in New York. A first or second offense DWAI in a five-year period will be considered a traffic infraction, but a third or subsequent violation within ten years will be considered a misdemeanor.

1st Offense DWAI

2nd Offense DWAI

3rd Offense DWAI


Up to 15 days

Up to 30 days

Up to 180 days


$300 to $500

$500 to $750

$750 to $1,500

DWAI Probation in New York

In many cases, even if a jail sentence is imposed, the judge will place the offender on probation for a few months to a year. During this time, the offender will be required to complete an alcohol abuse screening to determine if treatment would be beneficial. The judge will generally order that the offender complete the recommended program as part of probation. Failure to comply with the treatment program or any other probation requirements can result in jail time.

Victim Impact Panels for New York DWAI Offenders

All impaired driving convictions require attendance at an approved victim impact panel. These non-confrontational presentations are designed to help offenders understand the real-life impact and dangers of impaired driving.

Jail, Fines, and Probation for DWI and Drug-Based DWAI Convictions

DWI and DWAI offenses that involved drugs (or drugs and alcohol) carry increased penalties and are considered misdemeanors or felonies, depending on the number of prior offenses the driver has that occurred in the last ten years.

1st Offense DWI or Drug-Based DWAI (Misdemeanor)

2nd Offense DWI or Drug-Based DWAI (Felony)

3rd Offense DWI or Drug-Based DWAI (Felony)


Up to 1 year

Up to 4 years

Up to 7 years


$500 to $1,000

$1.000 to $5,000

$2,000 to $10,000

In certain instances, offenders are required to serve a mandatory period in jail before being eligible for probation. If an offender has a prior offense within the last five years, at least five days of jail or 30 days of community service must be served. Drivers with two prior offenses in the last five years must serve ten days in jail or complete 60 days of community service.

DWI and Drug-Based DWAI Probation

Probation for DWI and drug-based DWAI offenses involves more requirements than alcohol-DWAI probation. Offenders are still required to complete a drug and alcohol screening and to complete any recommended treatment. However, these offenders are also required to install an ignition interlock device on any operated vehicle during the probation period (minimum six months). Attendance at a victim impact panel is also required.

License-Related Penalties for New York DWI and DWAI Offenses

An impaired driving incident will generally result in driver's license penalties, often even before a driver is convicted. The type and duration of the penalty generally depend on the driver's level of impairment, the driver's cooperation with law enforcement, and the number of prior offenses.

License-related penalties can result from a DWI/DWAI arrest, arraignment, and/or conviction.

New York's Express Consent Law

Under New York's express consent law, any person who drives within the state is deemed to have impliedly consented to a chemical test of his or her breath, blood, urine, or saliva. Drivers who are lawfully arrested for a DWI or DWAI are required to submit to testing. Drivers who fail a test or refuse to test altogether face license-related penalties

Refusing a DWI/DWAI Test in New York

When a driver refuses to take an alcohol or drug test, the officer will send notice of the refusal to the Division of Motor Vehicles (DMV). Generally, a refusal will result in the DMV revoking the driver's license:

  • for one year for a first offense (includes a $500 civil penalty), or
  • for 18 months if the driver has at least one prior refusal or DWI/DWAI in the last five years (includes a $750 civil penalty).

A test refusal revocation will also require the payment of a $100 reinstatement fee and payment of a $250 annual Driver Responsibility Assessment fee for three years.

License Revocation for DWI/DWAI Convictions in New York

All impaired driving convictions are reported to the Department of Motor Vehicles (DMV) for suspension. After reviewing the driver's record, the DMV will issue a notice suspending the driver's license for:

  • 90 days for a first offense DWAI
  • six months for a first-offense DWI or drug-based DWAI or a second DWAI conviction within five years
  • one year for a second DWI or drug-based DWAI conviction within the last ten years or an aggravated DWI conviction, or
  • 18 months for an aggravated DWI conviction or if the driver has a prior aggravated DWI conviction in the last ten years.

A driver who refuses testing or is convicted of a DWI/DWAI will be permanently revoked if he or she has two prior offenses (DWAI/DWI or test refusal) in the last four years or three prior offenses in the last eight years. Drivers who are indefinitely suspended may petition for reinstatement after five years with evidence of a completed rehabilitation program.

New York's Ignition Interlock Device (IID) Requirements

Drivers convicted of DWI will also be required to install and maintain an ignition interlock device after completing any license suspension or revocation period. The IID must be maintained during the offender's probation and the offender is not permitted to drive any vehicle unless equipped with an IID.

Getting a Restricted License in New York After a DWI/DWAI Revocation

Suspended and revoked drivers can generally apply to the DMV for a restricted IID license. This license requires the offender to install and maintain an IID but does permit operation during the DWI/DWAI revocation or suspension period.

A minimum suspension period (during which no driving is allowed) may be required depending on the driver's criminal history and other circumstances.

New York's Underage DWI Laws

In New York, drivers who are under 21 years of age are prohibited from driving with a BAC of .02% or more. However, a violation of this rule is not considered a criminal offense and will only result in license suspension and civil fines. Generally, a first offense will result in a six-month suspension and a $125 civil penalty. Second offenders face revocation for one year or until the driver is 21 years old (whichever is longer).

If the underage driver has a BAC of .05% or more or is noticeably intoxicated, he or she can instead be charged with a standard DWI or DWAI violation.

Sentencing Alternatives and Options

Although New York's DWI penalties are serious, many rehabilitation programs can help reduce the penalties. For example, completing the state-approved rehabilitation program can completely eliminate the license revocation penalty for first offenders. A qualified New York DWI attorney can help you navigate these options and assess any possible weaknesses in the prosecution's case. Consult with a seasoned attorney to best understand your rights and options.

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