DRIVING WHILE INTOXICATED and RELATED OFFENSES

Perhaps no area of criminal law is prosecuted more aggressively in the New York metropolitan area these days than offenses involving drunk driving.   Dangerously congested roadways, an abundance of nightlife, and a lack of viable transportation alternatives help explain why drunk driving has been characterized as an epidemic in this region.  This coupled with the almost daily coverage of horrific drunk driving accidents in the media, has created a very hostile environment for defendants charged with any alcohol related driving offense.  Moreover, the legislature has greatly increased the penalties for drunk driving in recent years.  Someone accused of drunk driving who may have gotten off with paying only fines a few years ago, may now face a real possibility of jail time. 

While the environment many be challenging, someone accused of drunk driving related offenses is innocent until proven otherwise.  As information provided below indicates, DWI defense is a complex area of law.  The evidence in these cases often involves the subjective opinions of police officers or the reliability of breath testing machinery, which has been called into question by members of the scientific community. 

If you or a loved one has been accused of driving while under the influence of alcohol or drugs, it is imperative that you secure the best legal representation at the earliest time.  We at Raiser & Kenniff have successfully handled all levels of drunk driving cases.  We will stand with you at every step of the way against an increasingly hostile and aggressive system. 

LEVELS OF OFFENSES

In New York State there are varying levels of drunk driving offenses.  The offenses are classified according to levels of intoxication and impairment as well as the accused's prior criminal history of DWI related offenses.  The most well known offense is Driving While Intoxicated (DWI).  Please refer to Vehicle and Traffic Law Sections 1192.1, 1192.2, 1192.3, and 1192.4.             

A driver has committed DWI when he or she operates a motor vehicle on a public roadway after having voluntarily consumed alcohol to the extent of being physically and mentally incapable of driving a vehicle in a reasonable manner.  The person is presumed intoxicated when their blood alcohol level measures at .08% or higher (VTL § 1192(2)) after a chemical test of their breath (or blood or urine), commonly referred to as a "breathalyzer."  If the person's blood alcohol level is .18% or above, he or she will be charged with an Aggravated DWI (VTL § 1192(2)(a)).  Additionally, when a person refuses to take the test, or a test result is not obtained, they can still be charged with common law DWI under VTL § 1192(3), if the police officer concludes based on his observations of the suspect that he is intoxicated.  It is often more difficult for the prosecution to prove their case at trial in instances of common law DWI (VTL § 1192(3)) where they do not have the results of a chemical test to rely on. 

Driving While Ability Impaired by Drugs or DWAI Drugs (VTL § 1192(4)) is a separate offense which is charged when there is evidence that a person operated a motor vehicle while under the influence of a controlled substance.   Here the evidence usually is in the form of a positive toxicology report evidencing the presence of  a controlled substance in a suspects blood or urine, or from the police officers observations of the defendant at the time of arrest.                  

A first time DWI or DWAI Drugs will be charged as a misdemeanor.   A second DWI/DWAI Drugs charge within 10 years of the date of a prior DWI/DWAI Drugs conviction will be charged as a class E Felony offense.  A third or more DWI/DWAI Drugs charge within 10 years of the prior date of two convictions will be charged as a class D Felony offense.  A DWI/DWAI Drugs offense does not rise above a class D felony offense regardless of the number of prior offenses.        

The lesser offense of Driving While Ability Impaired (DWAI) by alcohol, or VTL § 1192(1), is charged when a person has voluntarily consumed alcohol to the extent that their ability to drive a motor vehicle in a reasonable manner is impaired.  Someone registering between a .05 and .07 blood alcohol content will likely be charged with DWAI.  While DWAI is technically a traffic infraction and not a criminal offense per se, a conviction for DWAI carries with it a mandatory license suspension, substantial fines and penalties, as well as collateral consequences with regard to criminal records and enhanced penalties in the event of subsequent arrests.  

TESTS POLICE USE TO DETERMINE INTOXICATION

There are a number of tests available to determine if a driver may be under the influence, and if so, to what extent.  Standard Field Sobriety Tests (SFST's) are used by police officers to determine if a person may be intoxicated or impaired by alcohol.  There are three tests that are recognized as valid in the State of New York. 

The first test is the Horizontal Gaze Nystagmus Test (HGN).  Nystagmus is a natural behavior found in the eye.  When a person's eyes move to the side, there is an involuntary jerking or "nystagmus" that occurs.  This action is amplified by the consumption of alcohol or drugs. 

The second test used is called the Walk and Turn Test.  When performing this test, the individual stands in a heel to toe position while given directions.  The officer will tell the person to walk nine steps, heel to toe, turn around, and repeat.  The person is instructed on how to turn, and to count the steps aloud.  A number of factors are used to determine intoxication during this test.

The final test is the One Leg Stand Test.  Here, the driver is asked to stand with one leg about six inches off the ground.  He or she must estimate a thirty second time period, counting the seconds out loud.

The officers use these tests in addition to initial observation (how the driver talks, if there is an odor or alcohol on the driver's breath, balance, etc.) in order to determine whether the driver is intoxicated.  In addition to the three verified tests, a number of other tests are used to obtain evidence of intoxication.  These include the Alphabet test, Countdown, and the Finger-to-Nose test.

There are two types of instrument based tests used to determine intoxication levels.  The first is known as the breath screening test, where an officer samples the individuals' breath in order to detect a presence of alcohol.  Officers perform this test using a portable breath screening device, or PBT.  The most common type of a breath screening device is the Alco-Sensor.  It is used to determine the presence of alcohol on a driver's breath, thus establishing the probable cause necessary to move forward.   Breath screening tools are not sufficiently reliable to be admissible as evidence in a trial, but are used as a method simply to determine whether or not a person has ingested alcohol.

A "chemical test," on the other hand, refers to a test of either a person's breath, blood or urine, to scientifically determine the percent of alcohol in their blood stream i.e., their blood alcohol content or "BAC."  If properly administered the results of these chemical tests are admissible at trial.  The most common testing method in drunk driving cases is the chemical test of the driver's breath, commonly referred to as a "Breathalyzer."  This tool measures a person's blood alcohol concentration through a chemical analysis of a breath sample.  Unlike the breath screening test, or PBT, discussed above, the chemical test of a person's breath can be admissible at trial.  It is conducted at the police precinct or central testing unit at police headquarters, and involves a machine that is about the size of a desktop computer.  The driver is asked to blow into a mouthpiece attached to a long hose connected to the machine.  While this test is typically referred to as a breathalyzer, the "Breathalyzer" is only one of several brand named chemical breath testing machines.  The machine most commonly used in the New York area is the "Intoxilyzer 5000."

A blood or urine test can also be used to determine intoxication levels, however, this is typically seen only in cases where drug use is suspected or where there is an injury to the driver preventing breath testing.  In the case of both blood and urine tests, specific procedures must be followed by law enforcement in ordering and conducting the tests.

When an individual is tested and their BAC measures .08 or above, they can be charged with DWI.  A test result between .05 and .07 will typically result in the driver being charged with driving while ability impaired (DWAI).  When a person tests .05 or less, there is a presumption that the driver was neither intoxicated nor impaired.  The prosecution, however, may attempt to rebut these presumptions.  

ISSUES OF CONSENT AND REFUSAL TO PERFORM TESTS

A person is not required to perform field sobriety tests such as the walk and turn and horizontal gaze nystagmus, every driver in the State of New York is required to submit to a breath-screening test, such as the Alco-Sensor.  A refusal to do so is a traffic infraction.  

People are under an implied consent to submit to a chemical test of their breath, blood or urine for purposes of determining BAC.  Though people are generally not forced to participate in the test, a refusal to do so may be offered as evidence of guilt at trial. 

When a person refuses to submit to a chemical test, that person may be liable for civil sanctions.  The first time a driver refuses a chemical test their license will be suspended for a year.  There is a civil penalty of $500, as well as a driver responsibility assessment of $250 a year for three years.  If the refusal is not the driver's first within five years, their license will be revoked for at least 18 months.  There will be a civil penalty of $750, and a driver responsibility assessment of $250 a year for three years.  In addition, the DMV requires proof that the person has been evaluated for alcohol or attended rehabilitation prior to the license being reinstated.

As noted above, drivers in the State of New York are presumed to give consent to chemical tests.  Thus, for example, if a person is in a car accident and is unconscious, an officer may request a blood test to be taken.  Likewise, if a person is too disoriented to expressly consent to testing, he or she may be tested under the presumed implied consent.

Lastly, a police officer or district attorney may request the court to issue a compulsory chemical test.  This is only available in situations where a person other than the driver was killed or suffered serious physical injury.

COLLATERAL CONSEQUENCES OF A DWI/DWAI CONVICTION

Suspension and/or revocation of a driver's license is required upon conviction for a drug and alcohol related driving offense.  When a license is suspended, the suspension is for a specified time period.  Once the time period is competed, and the monetary fees have been paid, including the suspension lift fee, the license will be automatically reinstated.  Suspension occurs immediately at arraignment in cases where a person is charged with a DWI and alleged to have a blood alcohol level of .08 or more.

A license revocation is an entirely different matter.  A license will be revoked for a minimum time period, which ends only upon reapplication to the DMV and proof of completion of a drug or alcohol treatment program.  The license, however, is not automatically reinstated.  The license may be denied, for example, on the basis of the persons driving record.  The decision of whether or not to reinstate a license lies solely within the discretion of the DMV. 

When a person is convicted of a drug or alcohol related driving offense, the court has the option to compel the installation of an ignition interlock device.  When a person has been convicted one or more times within five years, the court must order the installation of the device.  The ignition interlock system is a breath tester that is used to prevent the ignition of the car when alcohol is detected.  The driver must breathe into the device before starting the car, as well as at random periods after ignition. 

Driver responsibility assessment fees (discussed above) are required of any person who is convicted of an alcohol or drug related offense, or is found to have refused to take a chemical test.  This is in addition to fees, penalties, and surcharges.  The failure to make such payments will result in another suspension of the person's license.

Mandatory surcharges will be imposed in addition to fines, varying according to the charge and where the case is located.  Surcharges in DWI/DWAI cases can add up to several hundred dollars.

Lastly, if a person is found to be driving with a suspended or revoked license, is arrested, and is found to be intoxicated, he or she will be subject to a mandatory fine of $5000, possible vehicle forfeiture, and potentially charged with a Felony offense for driving with a suspended or revoked license (even if the DWI is only a misdemeanor). 

CONDITIONAL LICENSES

When a person's license has been taken away, there is an option to participate in the Drinking Driver Program (DDP), which may allow the driver to obtain a conditional license allowing them to drive on a limited basis during their suspension/revocation period. 

An individual charged with an alcohol or drug related offense might be eligible for a conditional license while the charge is pending if the individual meets certain requirements and criteria.  There are two types of conditional licenses an individual may apply for after being charged with an alcohol or drug related driving offense.  While a conviction is pending, an individual may be eligible for a pre-conviction conditional license.  After an individual is convicted, he or she may still apply for a post-conviction conditional license.

An individual may still apply for a conditional license after being convicted of an alcohol or drug-related offense.  To receive a conditional license, the individual must enroll in the DDP.  An automatic disqualification for the DDP occurs if an applicant has participated in a DDP program within the five years prior to the present offense. 

COMMERCIAL DRIVERS

Compared to other drivers, every driver holding a Commercial Driver License (Class A, B, or C) is held to stricter Blood Alcohol Content (BAC) standard, and faces tougher penalties while operating a vehicle that requires a CDL license. A single conviction for DWI, DWAI, or having a .04 percent or higher BAC requires a minimum 1-year revocation of the driver's license (3-years, if driving a vehicle that requires hazardous materials placards). A second conviction within the driver's lifetime results in permanent revocation, with a possible waiver after 10 years. A third conviction results in a permanent revocation without any possibility of reinstatement. Drivers who hold a commercial license should review the Commercial Driver's Manual (CDL-10), available at motor vehicle offices, for additional information about penalties that apply to them.

SENTENCING GUIDELINES FOR DWI AND RELATED OFFENSES

The consequences of alcohol related driving offenses can vary according to the level of intoxication, but also depending upon the driver's record.  If the offense is a repeat offense, fines and surcharges will be higher and the offense may carry heavier penalties such as extended jail time and/or extended probationary periods. 

For a DWAI, a first time offender will be liable for a fine between $300 and $500, along with a mandatory state surcharge of $240 and a mandatory 90 day license suspension.  The driver will also be accountable for a driver responsibility assessment of $250 a year for three years.  The maximum jail sentence on a DWAI is fifteen (15) days.  The driver may be eligible for the Drinking Driver Program (DDP) and a conditional license.  This program and licensing process are further discussed below.

If the DWAI is a second offense within a five year time period, the fine increases to a range of $500 to $700, with a six month license revocation and a driver responsibility assessment of $250 a year for three years.   The maximum jail sentence is increased from fifteen (15) to thirty (30) days.

When a person is charged with a DWAI with two or more DWAI convictions within the proceeding ten-year period, the charge is increased to a misdemeanor.  The fine ranges between $750 and $1500.  There is a three-year probation period, an 18-month license revocation period, and a driver responsibility assessment of $250 a year for three years.  In addition, the defendant may be sentenced to up to 180 days in jail. 

When charged with a DWI, the penalties often vary depending on the driver's record.  If the driver is being convicted of a DWI for the first time, it will be a misdemeanor.  The driver will be liable for a fine between $500 and $1000, with mandatory state surcharges, up to one year in jail, 3 years probation, or a combination of jail time (up to 60 days) and probation.  There is a driver responsibility assessment of $250 a year for three years.  The person's license will be revoked for a minimum of six months.  As part of a probationary sentence, the prosecution, the Judge, and/or the Probation officer might require enhanced alcohol conditions, meaning participation in a substance abuse program.  

If the driver is charged with a DWI again, the offense may rise to a felony.  For the second DWI offense committed within a 10-year period, the DWI would be a Class E felony.  For the third or more DWI offense committed within a 10-year period, the DWI would be a Class D felony.  The fines are increased to $1000-5000, and there is a minimum mandatory one year license revocation.  In addition, the person may be sentenced to a minimum of five days in jail (or 30 days community service) and up to 1 1/3 to 4 years in jail for a class E Felony offense.  For a class D offense, the maximum is increased to 2 1/3 to 7 years in jail.  The driver will also be required to have an ignition interlock system installed in his vehicle.  The probationary sentence for a class D or E Felony offense is five years.  Additionally, the Judge may sentence you to a "split sentence" with a period of jail time (up to six months) to be followed by 5 years of probation.  Most probation officers will require an alcohol program.  Depending on the persons treatment needs, the program may be inpatient or outpatient.  The County Attorney will also likely seek forfeiture of the vehicle. 

Penalties for Alcohol-related and Drug-related Violations
Violation	Mandatory Fine	Maximum Jail Term	Mandatory Driver License Action
Aggravated Driving While Intoxicated (A-DWI)	$1,000 - $2,500	1 year	Revoked for at least one year
Second A-DWI in 10 years (E felony)	$1,000 - $5,000	1 1/3 to 4 years	Revoked for at least 18-months
Third A-DWI in 10 years (D felony)	$2,000 - $10,000	2 1/3 to 7 years	Revoked for at least 18-months
Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug)	$500 - $1,000	1 year	DWI-Revoked for at least six months DWAI-Drugs - Suspended for at least six months
Second DWI/DWAI-Drug violation in 10 years (E felony)	$1,000 - $5,000	1 1/3 to 4 years	Revoked for at least one year
Third DWI/DWAI-Drug violation in 10 years (D felony)	$2,000 - $10,000	2 1/3 to 7 years	Revoked for at least one year
Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination)	$500 - $1,000	1 year	Revoked for at least six months
Second DWAI/Combination in 10 years (E felony)	$1,000 - $5,000	1 1/3 to 4 years	Revoked for at least one year/18 months
Third DWAI/Combination in 10 years (D felony)	$2,000 - $10,000	2 1/3 to 7 years	Revoked for at least one year/18 months
Driving While Ability Impaired by Alcohol (DWAI)	$300 - $500	15 days	Suspended for 90 days
Second DWAI violation in 5 years	$500 - $750	30 days	Revoked for at least six months
Zero Tolerance Law	$125 civil penalty and $100 fee to terminate suspension	None	Suspended for six months
Second Zero Tolerance Law	$125 civil penalty and $100 re-application fee	None	Revoked for one year or until age 21
Chemical Test Refusal	$500 civil penalty ($550 for commercial drivers)	None	Revoked for at least one year, 18 months for commercial drivers.
Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal	$750 civil penalty	None	Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.
Chemical Test Refusal - Zero Tolerance Law	$300 civil penalty and $50 re-application fee	None	Revoked for at least one year.
Chemical Test Refusal - Second or subsequent Zero Tolerance Law	$750 civil penalty and $50 re-application fee	None	Revoked for at least one year.
Driving Under the Influence - (Out-of-State)	N/A	N/A	Suspended for 6 months. If less than 21 years of age, revoked at least one year.
Driving Under the Influence - (Out-of State) with any previous alcohol-drug violation	N/A	N/A	Suspended for 6 months. If less than 21 years of age, revoked at least one year or until age 21 (longest term).

Please be advised that the above chart is provided for reference purposes only.  The most accurate and up to date information concerning sanctions for DWI/DWAI offenses should be obtained directly from the New York State DMV website at www.nydmv.state.ny.us.