Driving While Intoxicated

A DWI/DUI conviction will have serious consequences. It can cost you your driving privileges, thousands of dollars, your car, your job and possibly prospects of future employment. Jeffrey P. Santoro has extensive experience in handling DWI/DUI cases, including having successful results after trial.

In New York State DWI/DUI is not only determined by your Blood Alcohol Concentration (BAC), but you can be convicted based upon the officer's observations, known as “common law.”

You will be charged with a DWI/DUI if your BAC is:

0.08% and you're 21 years old or older.

0.04% and you're driving a commercial motor vehicle.

0.02% and you're younger than 21 years old.

You will be charged with an “AGGRAVATED” DWI/DUI if your BAC is 0.18% or higher. If you are convicted of this charge the penalties are increased for fines, length of license suspension or revocation and possible incarceration.

You can also be charged with the lesser offense of Driving While Ability Impaired (DWAI) if your BAC does not reach the above listed statutory percentage, or based upon the arresting officer's observations. A conviction at this level can be either a violation (non-criminal) conviction, but multiple convictions will raise the level of offense.

DWAI – FIRST OFFENSE

As defined, a person may be convicted of DWAI if that person operates a motor vehicle while his/her ability to do so is impaired, to any extent, by the consumption of alcohol. DWAI is a traffic infraction, which is not defined as a criminal conviction.

If convicted of DWAI as a first offense, the following are possible sentencing parameters:
  • A fine of between $300 and $500, up to 15 days in jail, or both;
  • Suspension of your driver's license for 90 days (unless you are under 21 or possess a Commercial Driver's License (“CDL”));
  • A surcharge of $255 ($260 if the case is in a Town or a Village Court);
  • A driver responsibility assessment of $250 a year for 3 years; and
  • You will be required to attend a “Victim Impact Panel.”
In addition, you will likely be eligible for the Drinking Driver Program and obtain a conditional driver's license which provides limited driving privileges.

DWAI – SECOND OFFENSE

If you are convicted of a DWAI after having been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 5 years (calculated as 5 years from the date of conviction to the date of the present charge), the following are possible sentencing parameters:
  • A fine of between $750 and $1,500, up to 180 days in jail or both; or period of probation of 3 years;
  • Revocation of your driver's license for a minimum of 18 months. Pursuant to DMV regulations, you will be denied relicensing for a period of five years in addition to the statutory revocation period. Upon relicensing, you will be issued a problem driver restriction for 5 years together with the requirement of an ignition interlock device;
  • DMV will require evidence of alcohol rehabilitation before relicensing you;
  • Discretionary revocation of your registration for at least 6 months;
  • A surcharge of $395 ($400 if the case is in a Town or a Village Court);
  • A driver responsibility assessment of $250 a year for 3 years;
  • You will be required to attend a “Victim Impact Panel.” and install and maintain an ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, but not less than 6 months.
You will not be eligible for a conditional license.

DWAI – SECOND OFFENSE

If you are convicted of a DWAI after having been convicted of 2 or more violations of DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence within the past 10 years, this conviction rises to the misdemeanor level, which is defined as a criminal conviction and will remain “on your record” for your lifetime. The following are possible sentencing parameters:
  • A fine of between $750 and $1,500, up to 180 days in jail or both; or period of probation of 3 years;
  • Revocation of your driver's license for a minimum of 18 months. Pursuant to DMV regulations, you will be denied relicensing for a period of five years in addition to the statutory revocation period. Upon relicensing, you will be issued a problem driver restriction for 5 years together with the requirement of an ignition interlock device;
  • DMV will require evidence of alcohol rehabilitation before relicensing you;
  • Discretionary revocation of your registration for at least 6 months;
  • A surcharge of $395 ($400 if the case is in a Town or a Village Court);
  • A driver responsibility assessment of $250 a year for 3 years;
  • You will be required to attend a “Victim Impact Panel.” and install and maintain an ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, but not less than 6 months.
You may be eligible for the Drinking Driver Program, but will not be eligible for a conditional license.
 

DWI – FIRST OFFENSE

A DWI conviction is a misdemeanor, which is defined as a criminal conviction and will remain “on your record” for your lifetime. The following are possible sentencing parameters:
  • A fine of between $500 and $1,000, up to 1 year in jail, or both;
  • A period of probation of 3 years;
  • Revocation of your driver's license for at least 6 months;
  • Discretionary revocation of your registration for at least 6 months;
  • A surcharge of $395 ($400 if the case is in a Town or a Village Court);
  • A driver responsibility assessment of $250 a year for 3 years;
  • You will be required to attend a Victim Impact Panel and install and maintain an ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, but not less than 6 months.
You may be eligible for the Drinking Driver Program and a conditional license.

DWI – SECOND OFFENSE

If you are charged with a DWI within 10 years after having been convicted of either DWI, Aggravated DWI, DWAI Drugs, or DWAI Combined Influence, you can be charged with felony DWI. Nonetheless, if you are allowed to plead to misdemeanor DWI, the following are possible sentencing parameters:
  • A fine of between $500 and $1,000, up to 1 year in jail, or both; or a period of probation of 3 years;
  • Revocation of your driver's license for at least 1 year (a minimum of 18 months where the prior conviction was for Aggravated DWI). You will be denied full licensing until the expiration of the minimum revocation period;
  • DMV will require evidence of alcohol evaluation and/or rehabilitation before you will be permitted to be relicensed;
  • Discretionary revocation of your registration for at least 1 year;
  • A surcharge of $395 ($400 if the case is in a Town or a Village Court);
  • A driver responsibility assessment of $250 a year for 3 years;
  • You will be required to attend a Victim Impact Panel and that you install and maintain an ignition interlock device in any motor vehicle that you own or operate during the term of probation or conditional discharge, but not less than 6 months.
If you are convicted of a misdemeanor DWI after having already been convicted of a misdemeanor DWI within the past 5 years, you are subject to the following additional mandatory penalties:
  • FIVE (5) days in jail or 30 days of community service;
  • You must install an ignition interlock device in each motor vehicle you own or operate during the license revocation period and upon the termination of such revocation period, for an additional period as determined by the Court; and you must receive an alcohol or substance abuse assessment, which may result in the imposition of treatment as a condition of a sentence of probation or conditional discharge.

DWI TEST REFUSALS

In New York, there are two main consequences for refusing to submit to DWI testing (i.e. a breath test or a blood test). First, the refusal can be used against you at trial as “consciousness of guilt” evidence. Second, the refusal is itself a civil violation, entirely separate from the DWI charge pending in criminal Court. This will entail administrative proceedings conducted before a DMV Administrative Law Judge, and generally results in both (a) a significant driver's license revocation, and (b) a civil penalty (i.e., a fine).

CIVIL SANCTIONS FOR BREATH TEST REFUSAL – FIRST OFFENSE

A breath/chemical test refusal is considered to be a first offense if, within the past 5 years, you have neither (a) had your driving privileges revoked for refusing to submit to a chemical test, nor (b) been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI Combined Influence (not arising out of the same incident).

The civil sanctions for refusing to submit to a chemical test as a first offense are:
  • Revocation of your driver's license for 1 year (18 months if you have a CDL);
  • A civil penalty of $ 500; and
  • A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence conviction arising out of the same incident).

CIVIL SANCTIONS FOR REPEATED BREATH TEST REFUSAL

A chemical test refusal is considered to be a repeat offense if, within the past 5 years, you have either (a) had your driving privileges revoked for refusing to submit to a chemical test, or (b) been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI Combined Influence or Zero Tolerance (not arising out of the same incident).

The civil sanctions for refusing to submit to a chemical test as a repeat offender are:
  • Revocation of your driver's license for 18 months (at least 10 years if you have a CDL);
  • A civil penalty of $750 (unless the predicate was a violation of the Zero Tolerance Law, in which case the civil penalty is $500); and
  • A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence conviction arising out of the same incident).
In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before you will be relicensed.

BREATH TEST REFUSAL REVOCATON – UNDERAGE OFFENDERS

If you are under 21 and are found to have refused to submit to a chemical test as a first offense, your driver's license will be revoked for 1 year. If you have a prior refusal or a conviction of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI Combined Influence or Zero Tolerance, your driver's license will be revoked for at least 1 year or until you turn 21, whichever is longer.

The license revocation for a chemical test refusal is a “civil” or “administrative” penalty separate and distinct from the license suspension/revocation, which results from a DWAI,

DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence conviction in criminal Court. As such, the suspension/revocation periods run separate and apart from each other, or simply put, they do not overlap.

SHOULD I REFUSE A BREATH/CHEMICAL TEST?

There is no single or correct answer to this question. There are a variety of factors which must be considered in each individual circumstance, which include whether there has been an accident involving serious physical injury or death, is this DWI charge is a felony, are a repeat/multiple offender, do you need to drive to earn a living, do you have a commercial driver's license, is the test result is likely to be above the legal limit, etc.

The following are only general rules formulating the current opinion on this issue:
  • If there has been an accident involving serious physical injury or death — refuse the test
  • If the DWI charge is a felony — refuse the test
  • In virtually every other situation — take the test
Of course, the answer is substantially more complicated than this, and requires the advice of counsel on a case-by-case basis.

THE DMV REFUSAL HEARING

If you refuse to submit to a breath/chemical test, you have the right to a Due Process hearing before a DMV Administrative Law Judge. Although the odds are certainly against you at the hearing, these hearings are definitely winnable, and importantly, can also provide critical testimony from the officer with regard to your DWI case in criminal Court.

If the new DWI charge is more than 5 years from your prior conviction, you may be eligible for a conditional license.