Driving While Ability Impaired (DWAI) in violation of NYS VTL Sec. 1192.1.

No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.

NYS VTL Sec. 1192.1.

While there is no statutory provision defining what BAC constitutes impairment, the general rule is that a person is DWAI if they have a BAC of more than .05 but less than .07, or there is other evidence of impairment.

The “other evidence of impairment” is essentially a catch-all provision.  Because alcohol affects everyone differently, a driver may have a BAC of only .04, or even a .03, but still be “impaired” under the law, and therefore subject to prosecution.  A person’s ability to operate a motor vehicle is “impaired” by alcohol when the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver are impaired to any extent. 

“To any extent” is a subjective determination made by the arresting officer (or any other witnesses) and will typically be based upon any of the following:

• the defendant’s physical condition and appearance, balance and coordination, and manner of speech;
• the presence or absence of an odor of alcohol;
• the manner in which the defendant operated the motor vehicle;
• opinion testimony regarding the driver’s sobriety (usually based on performance of field sobriety tests); and
• the circumstances of any accident. 

If a BAC was obtained, that will obviously be a consideration, as well.

Penalties

Provided the instant offense is not the third (or more) such offense within the 10 years, a DWAI conviction is a traffic infraction.  A traffic infraction is not a crime.  However, the third or subsequent such offense within a 10 year period will be deemed a misdemeanor, which is a crime and may result in a criminal conviction/record.

The penalties for a DWAI conviction are as follows:   

First offense

• Traffic infraction;
• Punishable by a fine of between $300 and $500, or by up to 15 days in jail, or both a fine and jail;
• Surcharge of $260;
• DMV driver responsibility assessment of $750; and
• License or NYS driving privileges will be suspended for 90 days (unless you are under 21 or possess a CDL). 

Second offense within 5 years

• Traffic Infraction;
• Punishable by a fine of between $500 and $750, or by up to 30 days in jail, or both a fine and jail;
• Surcharge of $260;
• DMV driver responsibility assessment of $750; and
• License or NYS driving privileges will be revoked for at least 6 months. 

Third or subsequent offense within 10 years

• Misdemeanor;
• Punishable by a fine of between $750 and $1,500, or by up to 180 days in jail, or both a fine and jail;
• Surcharge of $400;
• DMV driver responsibility assessment of $750; and
• License or NYS driving privileges will be revoked for at least 6 months.

Depending on the specific circumstances of your case, you may will also be required to attend and complete various programs and classes (DDP and/or VIP), as well as alcohol or substance abuse screening, all at your expense.

Although only a non-criminal traffic infraction, a conviction for even a first offense DWAI can be devastating; from paying high fines along with the associated collateral expenses (e.g., attorney’s fees, programs and screening costs) to prolonged license revocation to possible loss of employment.   However, because a DWAI arrest may be based on so many subjective factors, there may be substantial opportunity to negotiate a plea to a reduced offense or beat the charge entirely at trial. It is therefore critical that anyone arrested for and charged with a violation of DWAI (VTL 1192.1) contact a knowledgeable and experienced DWI attorney immediately.

The attorneys at Catalano & Carpenter LLP have established a reputation for aggressively and successfully defending and protecting the rights of individuals throughout the Hudson Valley charged with alcohol related driving offenses.  If you or someone close to you has been charged with any alcohol related driving offense, call the Catalano & Carpenter LLP today to schedule a free consultation at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com.