DUI & DWI in New York

by Adam Rosenblum

It goes without saying that alcohol-related driving offenses like DUI/DWI are some of the most serious traffic crimes you can be charged with.

Navigating through the complicated terrain of DUI/DWI law can be quite complex. Many times drivers do not even know if there is a difference between DUI and DWI, let alone the various penalties they can incur if they are convicted of drinking and driving in NY.

Consequently, the following information has been designed to clarify all of this and to help you better understand the various charges you may be facing.

Background Information

Depending on what state you are in, the offense may be labeled DUI or DWI. In some states, they are two entirely separate offenses. However, in New York, the terms DUI and DWI are used interchangeably for the same offense. The proper label for the offense is DWI (driving while intoxicated).

If you consumed alcohol prior to driving, it is quite likely that your blood alcohol content (BAC) might be over the legal limit. Contrary to popular belief, even if you are not drunk, only had one beer, and feel totally fine, your BAC could be much higher than you think.

In New York, if you drive with a BAC of 0.08% or higher, you can be charged with driving while intoxicated (VTL 1192-2). Driving while intoxicated in New York is a very serious crime.

If you plead guilty or are convicted of DWI in New York, you face:

  • Fine of $500-$1,000
  • $395-$400 Surcharge
  • Up to 1 Year in Prison

Additionally, your New York driver’s license will be suspended, and, depending on the circumstances, it could be revoked altogether. Also, the court can order you to attend a victim impact program.

If your BAC level is 0.18% or higher, you can be charged with aggravated driving while intoxicated (VTL 1192-2a), which is also a serious crime. If you plead guilty or are convicted, you face:

  • Fine of $1,000-$2,500
  • $395-$400 Surcharge
  • Up to 1 Year in Prison

As with DWI, if convicted of aggravated DWI, your license will be suspended (and possibly revoked) and you could be forced to attend a victim impact program.

If an officer pulls you over and determines that you are showing signs of being intoxicated, he can charge you with violating common law DWI/DUI (VTL 1192-3). This offense is practically the same as regular DWI (VTL 1192-2) except with this offense the officer is not required to use a breathalyzer test before charging you (i.e. your BAC level is essentially irrelevant).

As long as the officer bases his observation on his experience, training, and blatantly visible signs (e.g. slurred speech, odor of alcohol, bloodshot eyes, etc.), this will give rise to probable cause to charge and arrest you for drunk driving.

A conviction for common law DWI/DUI (VTL 1192-3) carries with it the same penalties as regular DWI (VTL 1192-2) discussed above.

Regardless of which offense you are convicted of, you might be required to install an ignition interlock device that would not allow your car to turn on until you blew into it and registered a BAC within the legal limit. (Imagine having to do this every time you wanted to use your car.)

Lastly, with most driving-related offenses, your insurance could skyrocket. However, when you are convicted of drunk driving in NY, your auto insurance carrier reserves the right to drop you completely (and in most cases will).

Once the conviction appears on your driving record and you are dropped, it will be nearly impossible to get car insurance again. If you are fortunate enough to find a carrier who will take you, the premium could be nearly double what you were paying originally.

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Official Text of New York’s DUI/DWI Law

Vehicle and Traffic Law 1192. Operating a motor vehicle while under the influence of alcohol or drugs.

1. Driving while ability impaired.

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

2.  Driving while intoxicated; per se.

No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

2-a. Aggravated driving while intoxicated.

(a) Per se.

No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.

(b) With a child.

No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.

3. Driving while intoxicated.

No person shall operate a motor vehicle while in an intoxicated condition.

4.  Driving while ability impaired by drugs.

No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.

4-a. Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs.

No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.

5. Commercial motor vehicles: per se – level I.

Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum by  weight of alcohol in the person’s blood as shown by chemical analysis of  such person’s blood, breath, urine  or  saliva, made pursuant to the  provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a chemical analysis of such  person’s blood, breath, urine, or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article, indicates that such operator has .02 of one per centum or more but less than .04 of one per centum by weight of alcohol in such operator’s blood.

6. Commercial motor vehicles; per se – level II.

Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has more than .06 of one per centum but less than .08 of one per centum by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section.

7. Where applicable.

The provisions of this section shall apply upon public highways, private roads open to motor vehicle traffic and any other parking lot. For the purposes of this section “parking lot” shall mean any area or areas of private property, including a driveway, near or contiguous to and provided in connection with premises and used as a means of access to and egress from a public highway to such premises and having a capacity for the parking of four or more  motor  vehicles. The provisions of this section shall not apply to any area or areas of private property comprising all or part of property on which is situated a one or two family residence.

8. Effect of prior out-of-state conviction.

A prior out-of-state conviction for operating a motor vehicle while under the influence of  alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section. Provided, however, that if such conduct, had it occurred in this state, would have constituted a violation of any provisions of this section which are not misdemeanor or felony offenses, then such conduct shall be deemed to be a prior conviction of a violation of subdivision one of this section for purposes of determining  penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article.

8-a. Effect of prior finding of having consumed alcohol.

A prior finding that a person under the age of twenty-one has operated a motor vehicle after having consumed alcohol pursuant to section eleven hundred ninety-four-a of this article shall have the same effect as a prior conviction of a violation of subdivision one of this section solely for the purpose of determining the length of any license suspension or  revocation required to be imposed under any provision of this article, provided that the subsequent offense is committed prior to the expiration of the retention period for such prior offense or offenses set forth in paragraph (k) of subdivision one of section two hundred one of this chapter.

9. Conviction of a different charge.

A driver may be convicted of a violation of subdivision one, two or three of this section, notwithstanding that the charge laid before the court alleged a violation of subdivision two or three of this section, and regardless of whether or not such conviction is based on a plea of guilty.

10. Plea bargain limitations.

(a) (i) In any case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section, other than subdivision five or six, and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of this section is not warranted, such district attorney may  consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.

(ii)  In any case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section, no plea of guilty to subdivision one of this section shall be accepted by the court unless such plea includes as a condition  thereof the requirement that the defendant attend and complete the alcohol and drug rehabilitation program established pursuant to section eleven hundred ninety-six of this article, including any assessment and treatment required thereby; provided, however, that such requirement may be waived by the court upon application of the district attorney or the defendant demonstrating that the defendant, as a condition of the plea, has been  required to enter into and complete an alcohol or drug treatment program prescribed pursuant to an alcohol or substance abuse screening or assessment conducted pursuant to section eleven hundred ninety-eight-a of this article or for other good cause shown. The provisions of this subparagraph shall apply, notwithstanding any bars to participation in the alcohol and drug rehabilitation program set forth in section eleven hundred ninety-six of this article; provided, however, that nothing in this paragraph shall authorize the issuance of a conditional license unless otherwise authorized by law.

(iii) In any case wherein the charge laid before the court alleges a violation of subdivision one of this section and the operator was under the age of twenty-one at the time of such violation, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of such subdivision; provided, however, such charge may instead be satisfied as provided in paragraph (c) of this subdivision, and, provided further that, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of subdivision one of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.

(b) In any case wherein the charge laid before the court alleges a violation of  subdivision one or six of this section while operating a commercial motor vehicle, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney upon reviewing the available evidence determines that the charge of a violation of this section is not warranted, he  may consent, and the court may allow, a disposition by plea of guilty to another charge is satisfaction of such charge.

(c) Except as provided in paragraph (b) of this subdivision, in any case wherein the charge laid before the court alleges a violation of subdivision one of this section by a person who was under the age of twenty-one at the time of commission of the offense, the court, with the consent of both parties, may allow the satisfaction of such charge by the defendant’s agreement to be subject to action by the commissioner pursuant to section eleven hundred ninety-four-a of this article. In any such case, the defendant shall waive the right to a hearing under section eleven hundred ninety-four-a of this article and such waiver shall have the same force and effect as a finding of a violation of section eleven hundred ninety-two-a of this article entered after a hearing conducted pursuant to such section eleven hundred ninety-four-a. The defendant shall execute such waiver in open court, and, if represented by counsel, in the presence of his attorney, on a form to be provided by the commissioner, which shall be forwarded by the court to the commissioner within ninety-six hours. To be valid, such form shall, at a minimum, contain clear and conspicuous language advising the defendant that a duly executed waiver: (i) has the same force and effect as a guilty finding following a  hearing pursuant to section eleven hundred ninety-four-a of this article; (ii) shall subject the defendant to the imposition of sanctions pursuant to such section eleven hundred ninety-four-a; and (iii) may subject the defendant to increased sanctions upon a subsequent violation of this section or section eleven  hundred ninety-two-a of this article. Upon receipt of a duly executed waiver pursuant to this paragraph, the commissioner shall take such administrative action and impose such sanctions as may be required by section eleven hundred ninety-four-a of this article.

(d) In any case wherein the charge laid before the court alleges a violation of subdivision two-a of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of subdivision two, two-a or three of this section, and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of this section is not warranted, such district attorney may consent and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge, provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition. Provided, further, however, that no such plea shall be accepted by the court unless such plea includes as a condition thereof the requirement that the defendant attend and complete the alcohol and drug rehabilitation program established pursuant to section eleven hundred ninety-six of this article, including any assessment and treatment required thereby; provided, however, that such requirement may be waived by the court upon application of the district attorney or the defendant demonstrating that the defendant, as a condition of the plea, has been required to enter into and complete an alcohol or drug treatment program prescribed pursuant to an alcohol or substance abuse screening or assessment conducted pursuant to section eleven hundred ninety-eight-a of this article  or for other good cause shown. The provisions of this paragraph shall apply, notwithstanding any bars to participation in the alcohol and drug rehabilitation program set forth in section eleven hundred ninety-six of this article; provided, however, that nothing in this paragraph shall authorize the issuance of a conditional license unless otherwise authorized by law.

11. No person other than an operator of a commercial motor vehicle may be charged with or convicted of a violation of subdivision five or six of this section.

12. Driving while intoxicated or while ability impaired by drugs—serious physical injury or death or child in the vehicle.

(a) In every case where a person is charged with a violation of subdivision two, two-a, three, four or four-a of this section, the law enforcement officer alleging such charge shall  make a clear notation in the “Description of Violation” section of a simplified traffic information (i) if, arising out of the same incident, someone other than the person charged was killed or suffered serious physical injury as defined in section 10.00 of the penal law; such notation shall be in the form of a “D” if someone other than the person charged was  killed and such notation shall be in the form of a “S.P.I.” if someone other than the person charged suffered serious physical injury; and (ii) if a child aged fifteen years or  less was present in the vehicle of the person charged with a violation of subdivision two,  two-a,  three, four or four-a of this section; such notation shall be in the form of “C.I.V.”.  Provided, however, that the failure to make such notations shall in no way affect a charge for a violation of subdivision two, two-a, three, four or four-a of this section.

(b) Where a law enforcement officer alleges a violation of paragraph (b) of subdivision two-a of this section and the operator of the vehicle is a parent, guardian, or custodian of, or other person legally responsible for, a child aged fifteen years or less who is a passenger in such vehicle, then the officer shall report or cause a report to be made, if applicable, in accordance with title six of article six of the social services law.

 

Common Defenses to DUI/DWI in New York

Depending on what charge you face, there are several good defenses an experienced DUI/DWI attorney can make to help you get a reduction or dismissal.

When it comes to DWI in New York (VTL 1192-2), there is not much room to argue about whether your BAC was really above or below the legal limit. Unlike radar guns (which can be as much as 5mph off), a breathalyzer is usually quite accurate.

However, if the results of the test were extremely close to the legal limit (e.g. the breathalyzer registers a .087), your attorney could try to dispute the findings of the test.

In most cases, it is much more fruitful to argue that the evidence being used against you was illegally obtained, and, consequently, must be excluded from evidence. This type of defense usually relies on a motion to suppress the results of the breathalyzer, any incriminating statements you made to the officer, and all other tangible evidence (e.g. bottles, cans, etc.) found in the vehicle.

This defense is predicated on the fact that an officer must have probable cause to stop and search your vehicle. If it can be established that the officer lacked probable cause, any and all evidence will be considered inadmissible because they were obtained unlawfully.

Likewise, if an officer coerced a confession out of you (i.e. you did not voluntarily reveal anything), there could be grounds for excluding the confession due to a violation of your Fifth Amendment right.

However, it is worth mentioning two things that drivers are usually unaware of. First, whether we like it or not, the Supreme Court of the United States has consistently concluded that the warrant requirement does not apply to an automobile. This means an officer does not need a warrant to stop or search your car, just probable cause.

Second, once that officer has probable cause to lawfully search your vehicle, he has the legal authority to seize any illicit item he legally finds whether he was originally looking for it or not.

Lastly, even if the evidence cannot be excluded, a skilled attorney will be able to rebut the allegation of the police officer being called to testify against you.

For instance, if the officer says that you failed several field sobriety tests, your attorney can defend you by providing evidence that this was because his directions were utterly confusing and poorly explained. Similarly, if your eyes were bloodshot, your attorney can introduce evidence that shows this was due to a lack of sleep, allergies you may have been suffering from, new contact lenses that were irritating, or any other valid reason for why your eyes were red.

Case Law Analysis

New York case law reveals that clever defense attorneys tried a whole host of defenses to get their client’s DUI/DWI charges dismissed. One attorney tried to obliterate a section of the drunk driving statute completely.

In People v. Cruz, 48 NY 2d 419, the defendant’s attorney argued that the phrases “intoxicated condition” and “impaired” were unconstitutionally vague and unenforceable. He argued that the statute did not explain how impaired a person needed to be or to what extent. However, the court disagreed and, in doing so, redefined DUI/DWI law in New York in a whole new way.

The court concluded:

  • “In sum the prohibition against driving while the ability to do so is impaired by alcohol … is not a vague and indefinite concept as the defendant contends. It is evident from the statutory language and scheme that the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” (See People v. Cruz, 48 NY 2d 419)

This ruling set the foundation for what needs to be proven in any DWI/DUI case. First and foremost, any impairment whatsoever of the abilities that you are expected to have as a reasonable and prudent driver due to consuming alcohol will be enough to convict you of driving while intoxicated in New York.

Second, even though the statute does not have exact or precise cut-offs for what amounts to being “impaired,” it nonetheless is valid. In many ways, this provides a police officer with tremendous discretion to determine what gives rise to being impaired.

In People v. Kowalski, 291 AD 2d 669, the court determined what amounts to probable cause. The court ruled:

  • “When a defendant is charged with driving while intoxicated, probable cause for the arrest exists if the arresting officer can demonstrate reasonable grounds to believe that the defendant had been driving in violation of Vehicle and Traffic Law § 1192.”

However, this leaves one wondering: what constitutes “reasonable grounds?”

Ultimately, probable cause consists of having a “fair probability” based on the “totality of the circumstances” that you were driving while under the influence. (See Illinois v. Gates, 462 U.S. 213.)

This too reveals that police are given a wide-range of discretion when evaluating whether they can stop your vehicle, search it, and arrest you.

Who Should You Contact?

If you were charged with drunk driving in New York (DWI/DUI), contact Adam H. Rosenblum of The Rosenblum Law Firm. Mr. Rosenblum has years of experience fighting traffic tickets, negotiating with prosecutors, and getting the results you are looking for. E-mail or call him today at 888-815-3649.