New York State has a lower-level "drunk driving" offense called
DWAI, short for Driving
While Ability
Impaired by alcohol. In most DWAI cases we believe the defendant
should fight the charges. There are three major reasons for this.
First, the penalties for a DWAI are fairly harsh. Second,
there may be no plea bargain available. Third, DWAI cases are generally
easier to win (though it is never easy). To put it another way, you often have
nothing to lose by fighting a DWAI case.
Please note that there is a separate DWAI Drugs offense for impairment from drugs. This page is about DWAI alcohol.
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While a first-time DWAI conviction is not criminal, the penalties are still harsh. Fines and expenses can easily exceed $1000 and even approach $2000. A first-time DWAI offense will also lead to license suspension for 90 days. Another big impact is the likely increase in insurance rates, which may cost over $1000 a year in increased insurance premiums. Finally, a DWAI violation stays on your driving record for at least 10 years, and may show up on a criminal history check for the rest of your life. If your work involves driving, you might lose your job or not get a job because of a DWAI. You can even be denied admission to Canada because of a DWAI. We've seen both happen.
If the BAC is 0.05, we can often get the case reduced or dismissed.
If the BAC is 0.06, then sometimes we can get deals. If the BAC is 0.07,
usually we will have to fight it. If
the only offer is "plead to the charge" (i.e.
plead guilty to what you're accused of), you have little to lose
by fighting a case through a hearing and even a trial. The worst that
can happen is that you get convicted of the offense charged, which is
what happens if you plead to the charge anyway.
NY DWI charges typically depend on the results of a test for
blood-alcohol content (BAC) performed by police on a device called a
breathalyzer. For a BAC of 0.08 or above, the police will usually
charge the defendant with a misdemeanor DWI crime. When the BAC is
0.05, 0.06, or 0.07, they will usually charge the defendant with DWAI.
There are some very important differences between these charges.
The higher level DWI offenses involve two different charges. Under
§1192(3), or common law DWI, the prosecution must prove you were intoxicated. In simple terms, they
have to persuade a jury you were drunk - you looked drunk, you sounded
drunk, you smelled drunk, etc. Under §1192(2), the "per-se DWI,"
they must prove that your BAC was 0.08 or higher. In almost all DWI
cases, you will be charged with both and the prosecution will have two
different ways to convict you. Most DWI lawyers believe that it is
easier for the prosecution to win by proving that your BAC was 0.08 or
higher.
For the DWAI violation, they must prove that you were impaired. Driving with a BAC below
0.08 is not illegal in and of itself. So the prosecution has only one
way to win, and it is the more difficult way. Also, cases involving a
BAC below 0.08 create other problems for the prosecution, as that
renders other aspects of the arrest suspect - especially with regard to
the Standardized Field Sobriety Tests
- the tests the police do at the side of the road where they wave a pen
in front of your eyes, have you stand on one leg, or have you walk a
line.
We handle DWAI cases in all New York courts. Call us at 888-733-5299.
The call is toll-free and there is no charge for the initial phone consultation.
Please call us to discuss your case before making any payment: 888-733-5299
888-733-5299
NY mailing address: Warren Redlich, c/o The DeLoach Law Firm, PO Box 634, Ballston Spa, NY 12020
Fax: 518-708-8752 wredlich@gmail.com
Redlich Law Firm
New York DWAI
We also have a page about Colorado DWAI.
©2011 Warren Redlich, Esq.
