DWI in New York State by Catharine M. Venzon

New York law prohibits the operation of a motor vehicle if a person has consumed alcohol and has a Blood Alcohol Concentration (BAC) of .08 of 1% or cannot operate a vehicle in a reasonable and careful manner. If you are caught driving after drinking you may be charged with Driving While Intoxicated (DWI). DWI is a misdemeanor in New York State, therefore if you are convicted you will have a permanent criminal record. The minimum penalty, assuming no prior convictions for DWI as a misdemeanor, is a minimum fine of $500.00 and a maximum fine $1,000.00. The judge may also sentence you to no more than a year in prison and your license will also be automatically revoked for 6 months.

If you have already been convicted of a DWI as a misdemeanor, subsequent DWI offenses will carry much stiffer penalties. The new charges are raised to the level of a class "E" felony. The minimum fine is $1,000.00 with a maximum fine of $5,000.00. Depending on the circumstances you the driver may also face probation or incarceration.

In New York State, a BAC of more than .05% is evidence that your ability is impaired by alcohol (DWAI or driving while ability impaired). This is considered a non-criminal traffic infraction, which does not leave the driver with a criminal record. The penalties can range from a minimum fine of $300.00, a maximum fine of $500.00, up to 15 days in jail or both. If convicted your license will be also be suspended for 90 days.

A second DWAI conviction within five years, results in a mandatory 6-month license revocation, up to $700 in fines, up to 30 days in jail or both. A third DWAI conviction within 10 years results in a misdemeanor, which gives the driver a criminal record, up to 180 days in jail, and a 6-month license revocation.

What to do if you have been stopped for Drunk Driving
If you have been stopped for a DWI and show signs of intoxication, the police will ask you to exit your vehicle and perform a field sobriety test. You are not legally obligated to perform a field sobriety test, however your refusal to do so can be used against you in court. If you think performing the test will further incriminate you if you have been drinking, it is legally advantageous for you to REFUSE to perform the test.

If you are arrested for DWI, the police may ask you to submit to a Breathalyzer test. If you refuse, your license will be automatically revoked for 6 months. If you are intoxicated, or if you were involved in an accident where people were injured, it is better to not submit to the test. A reading over .15 is an aggravating factor, and is less likely to result in a plea. A higher reading will also make probation and incarceration possible. Refusal to take a breath test may also result in less favorable treatment by county prosecutors.

In the end, it is a judgment call on the part of the motorist. If you are heavily intoxicated you should not take the test. If you have had only a few drinks, it may result in a low reading which will be favorable to you in court.

Conclusion
When stopped by law enforcement for a possible DWI or DWAI it is imperative that you the motorist behave in a courteous manner and are respectful to the authority of the police officer. However, to ensure that your rights have not been violated any person who has been charged with Driving While Intoxicated, or Driving While Ability Impaired should consult an attorney immediately.

If you have been charged with a DWI it is imperative that you hire experienced counsel that you can trust. I have represented many individuals charged with DWI in my twenty plus years of practice and can say that having an attorney who understands the rules and procedures is the only means to guarantee a fair and just outcome and to decrease your possibility of jail time.