The attorneys at Flink Maswick Law PLLC frequently defend those charged with alcohol-based driving offenses. Questions we hear the most, especially for those charged with an alcohol-based driving offense for the first time, are about the differences in the charges and resulting penalties for those convicted of Driving While Ability Impaired (DWAI), Driving While Intoxicated (DWI), and Aggravated Driving While Intoxicated (Aggravated DWI).

One of the major determining factors with respect to what the driver will be charged with between these three offenses is the blood alcohol content (BAC) of the driver, meaning the amount of alcohol the driver has consumed.

DWAI can be charged when a driver is alleged to be operating a motor vehicle on a roadway while impaired by consuming alcohol.

DWI can be charged when a driver is alleged to be operating a motor vehicle on a roadway with a blood alcohol content of .08 or more. It can also be alleged against those that are allegedly operating their vehicle in an intoxicated condition but refuse to take a blood or breath test.

Aggravated DWI can be charged when a driver is alleged to be operating a motor vehicle on a roadway with a blood alcohol content of .18 or more. 

While DWAI, DWI, and Aggravated DWI are all violations of New York Vehicle and Traffic Law §1192 (though different subdivisions of the law), they each have a different impact on first time offenders for those that are convicted. This is an overview of the potential consequences of each of these charges for first time offenders and is not to be considered a substitute for legal advice. Particular cases and situations should be reviewed with an attorney, as many factors not enumerated here, such as but not limited to having a commercial driver’s license, being a pistol permit holder, having prior convictions, having an immigration status other than permanent, being a resident of a different state other than New York or having a certain profession may cause differing and additional consequences for a defendant. Always seek counsel of your choosing when charged with an alcohol-based driving offense in New York State. The below is of general information for those charged with a first time offense in New York.

A DWAI, while just a violation (meaning not a crime, not a misdemeanor or felony), includes several repercussions, including: fines/fees ranging from $300.00 to $500.00 plus a $260.00 surcharge; a 90-day license suspension; possible registration suspension; a Driver Responsibility Assessment for three years at a cost of $250.00 each year to the New York State Department of Motor Vehicles; and likely required attendance at a Victim Impact Panel. The driver will also most likely need to obtain an alcohol and substance abuse evaluation from an OASAS-certified provider and successfully complete any recommended treatment. In most instances, the driver is eligible for a conditional license upon registering for the Impaired Driver Program. In addition to the more moderate consequences than DWI or Aggravated DWI, those convicted of DWAI can continue to represent that they do not have criminal record because it is a violation (so long as they have no other convictions to criminal charges in their past or concurrent with this matter) and are typically not required to install an ignition interlock device in their vehicle.

A DWI conviction is a misdemeanor in New York for first time offenders. A first offender can be subject to a fine ranging from $500.00 to $1,000.00 plus a $400.00 surcharge and/or 364 days in jail, probation, a six-month license revocation, possible registration revocation, a Driver Responsibility Assessment for three years at a cost of $250.00 each year to the New York State Department of Motor Vehicles; likely required attendance at a Victim Impact Panel and the installation of an ignition interlock device in all vehicles owned by the driver for at least six months and to pay for that installation and maintenance. The driver will also most likely need to obtain an alcohol and substance abuse evaluation from an OASAS-certified provider and successfully complete any recommended treatment. In most instances, the driver is eligible for a conditional license upon registering for the Impaired Driver Program.  DWI is a crime and if convicted, one will have a criminal record.

An Aggravated DWI conviction, for first offenders, is a misdemeanor with possible harsher consequences than a DWI. If convicted of Aggravated DWI, a driver is then subject to a fine ranging from $1,000.00 to $2,500.00 and a $400.00 surcharge and/or 364 days in jail, probation, a one-year license revocation, possible registration revocation for one year, a Driver Responsibility Assessment for three years at a cost of $250.00 each year to the New York State Department of Motor Vehicles; likely required attendance at a Victim Impact Panel and the installation of an ignition interlock device in all vehicles owned by the driver for at least six months and to pay for that installation and maintenance. The driver will also most likely need to obtain an alcohol and substance abuse evaluation from an OASAS-certified provider and successfully complete any recommended treatment. In most instances, the driver is eligible for a conditional license upon registering for the Impaired Driver Program. Aggravated DWI is a crime and if convicted, one will have a criminal record.

If you find yourself charged with a vehicle and traffic matter, please feel free to contact either of our offices to speak with our attorneys and find out if we can assist.