Areas of DWI

Our DWI attorneys know both sides of the legal system. This has helped give them a unique insight that can make the difference.

Most people who end up with a DWI did not intend to commit a crime. Part of our defense strategy may be to get the court to understand that, as a defendant, you are a real person, with a family — perhaps a mother, father, son or daughter. You may be someone who is involved with the community and not a reckless person that is harmful to society. If there are underlying circumstances that have led to repeated DWI, it may be appropriate to pursue other alternatives to jail that involve counseling or rehabilitation programs.

What is a DWI?

DWI stands for “driving while intoxicated” and is commonly referred to as drunken driving. States across the U.S. determine drunk driving based on blood alcohol content of .08 BAC. In New York, a BAC of .08 is considered to be intoxicating. It is believed at a BAC of .08%, driving becomes impaired—reflexes are slowed, judgment of speed, depth perception and ability to brake or control the vehicle diminish. New York State does not officially recognize an individual’s tolerance to alcohol with respect to an individual BAC over .08.

New York’s New Vehicle & Traffic Laws on DWI

New York laws under which drivers are brought up on DWI charges also affect how New York Courts handle DWI cases. Some of the primary DWI NY Vehicle & Traffic Laws (VTL’s) are as follows:

• (Vehicle & Traffic Law) VTL § 1192 –1
  Driving While Ability Impaired by Alcohol (VTL 1192 (1)):
  “Prohibits a person from operating a motor vehicle while the person’s ability to operate the vehicle is impaired by the consumption of alcohol. This charge is usually filed when an individual has more than .05 of one per centum but less than .08 of one per centum of alcohol in the person’s blood, as shown by chemical analysis of such person’s blood, breath, urine or saliva, or when evidence is not sufficient to charge a person with DWI. For a first time offense, which is considered a violation, the penalty is a fine of between $300 to $500, or 15 days in jail, or both. Penalties increase for those who have prior convictions. License suspension and revocation may also apply.”1

• (Vehicle & Traffic Law) VTL § 1192-2
  Driving While Intoxicated (VTL 1192 (2)): Prohibits a person from operating a motor vehicle while such person has .08 of one per centum or more of alcohol in the person’s blood, as shown by chemical analysis of such person’s blood, breath, urine or saliva. For a first time offense, which is deemed a misdemeanor, the penalty is a fine of $500-$1,000 or up to one year in prison, or both. Penalties increase for those who have prior convictions. License suspension and revocation may also apply.1

• (Vehicle & Traffic Law) VTL § 1192 (2-a) Aggravated Driving While Intoxicated, Per se takes place when a driver operating a vehicle “while such person has .18 of one per centum or more by weight of alcohol in such person’s blood, breath, urine or saliva.” This is a misdemeanor, punishable by a fine of “not less than $1,000 nor more than $2,500” or a maximum jail term of up to one year, 3 years probation or a combination of all three. License revocation will apply.

• VTL §1192(3) states that, “No person shall operate a motor vehicle while in an intoxicated condition.” This is referred to sometimes as a Common Law DWI. No breath test is needed, only the officer’s opinion based on attributable facts. This is usually based on the officer’s observation (defendant’s speech, driving, odor of alcohol, sobriety test, etc.) his experience and training. For a first time offense, which is deemed a misdemeanor, the penalty is a fine of $500-$1,000 plus a surcharge or up to one year in prison, 3 years probation or a combination of all three.

• VTL § 1192 (4-a) when a “person’s ability to operate… (a) motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.” This is a misdemeanor punishable by a fine “of not less than $500 nor more than $1,000” or a maximum jail term of one year, probation or a combination of all three.

Other Statutes that May Accompany DWI Charges

• Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511 (1)): A person may be charged with aggravated unlicensed operation of a motor vehicle in the third degree, a misdemeanor, when such person operates a motor vehicle while knowing or having reason to know that such person’s license or privilege of operating a motor vehicle is suspended or revoked. The penalty is a fine of $200-$500 or up to thirty days in prison, or both.1
• Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL 511 (2)): A person may be charged with aggravated unlicensed operation of a motor vehicle in the second degree, a misdemeanor, when such person operates a motor vehicle while knowing or having reason to know that such person’s license or privilege of operating a motor vehicle is suspended or revoked due to failure to submit to a chemical test, mandatory suspension due to a pending DWI prosecution, or three or more suspensions in effect. The penalty is a fine of $500 to $1,000, and seven to 180 days in prison or probation. 1
• Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree (VTL 511 (3)): A person may be charged with aggravated unlicensed operation of a motor vehicle in the first degree, a Class E felony, when such person operates a motor vehicle while knowing or having reason to know that such person’s license or privilege of operating a motor vehicle is suspended or revoked, and either operates the motor vehicle while intoxicated or has in effect ten or more suspensions. The penalty is $500-$5,000 or up to four years in prison, or probation. 1

The relevant charges for DWI resulting in serious injury or death are as follows:

• Vehicular Assault in the Second Degree (Penal Law 120.03): A person is guilty of this crime when with criminal negligence he or she causes serious physical injury to another person and causes such injury by operating a motor vehicle in an intoxicated condition. The maximum penalty for this Class E felony is up to four years in prison.1
• Vehicular Assault in the First Degree (Penal Law 120.04): A person is guilty of this crime when with criminal negligence he or she causes serious physical injury to another person, causes such injury by operating a motor vehicle in an intoxicated condition and the person’s license is suspended due to a DWI conviction or for a refusal to submit to a chemical test of the person’s breath. The maximum penalty for this Class D felony is up to 7 years in prison. 1
• Criminally Negligent Homicide (Penal Law 125.10): A person is guilty of this crime when with criminal negligence, he or she causes the death of another person. The maximum penalty for this Class E felony is up to four years in prison. 1
• Vehicular Manslaughter in the Second Degree (Penal Law 125.12): A person is guilty of this crime when with criminal negligence, he or she causes the death of another person and causes such injury by operating a motor vehicle in an intoxicated condition. The maximum penalty for this Class D felony is up to 7 years in prison. 1
• Vehicular Manslaughter in the First Degree (Penal Law 125.13): A person is guilty of this crime when with criminal negligence, he or she causes the death of another person and does so while intoxicated and the person’s license is suspended due to a DWI conviction or for refusal to submit to a chemical test of breath. The maximum penalty for this Class C felony is up to 15 years in prison. 1

According to the New York State Unified Court System, the biggest change in procedure from the new DWI law is that every defendant charged with a DWI must be screened and/or assessed for alcohol or substance abuse and dependency.

Screenings/assessments:

1. Can be conducted at arraignment (This is not that common.)
2. At the court’s discretion, are conducted prior to sentencing or in many cases as a condition of the sentencing
3. Results of screenings are given to the defendant
4. Results are usually forwarded to the court within 30 days of the court’s order

Other changes in DWI procedures include:

• New restrictions on plea bargaining in alleged violations of 1192 (2a)
• DMV sponsored Drinking Driver Program mandatory for certain convictions
• Ignition interlock device required for drivers convicted of 1192 (2-a) as a probation condition
• If court ordered to alcohol/substance abuse treatment, mandatory program completion for defendants sentenced to probation or conditional discharge
• First conviction of 1192 (4-a) results in 6 month revocation of driver’s license
• Refusal to submit to chemical test results in 1 year revocation of driver’s license (previously a 6 month revocation)

Offenders involving multiple personal injury related accidents may face permanent revocation of their driver’s license. (Permanent revocation of a license may not be truly permanent.)

Put your case in the hands of an experienced DWI attorney. Call 716-634-4747 or email us through our Quick Contact form to arrange a free consultation.