General Overview of DWI in New York City
Driving While Intoxicated (DWI) is becoming more aggressively legislated against and prosecuted each year in New York. Since it first became illegal, DWI has evolved to become a criminal act, the legal alcohol limit has been lowered, and multiple DWIs can now lead to felonious charges. In addition to the law becoming harsher, District Attorney's Offices are prosecuting these cases much more aggressively. DWI is one of the most serious crimes due to the potential penalties a conviction carries, which include possible incarceration, fines, license suspensions and revocations, and installing an ignition interlock device in your car.
DWI is charged as a misdemeanor offense unless there are aggravating circumstances, such as prior DWI convictions or a child under 16 in the vehicle. You can find the exact wording of the statute in Section 1192 of the New York State Vehicle and Traffic Law. There are two ways you can be found guilty of DWI. One way is to drive with a blood alcohol content (BAC) higher than .08 percent. Your BAC is measured through a machine called an Intoxilyzer, which is located at the police station. Many people confuse this test with the Portable Breath Test (PBT), which is given roadside at the traffic stop. The PBT is not admissible in court and is used to give police probable cause to arrest. Once your BAC has exceeded the legal limit you are guilty, regardless of how your driving was affected.
The other way is the "common law" theory which simply states that you cannot operate a motor vehicle while in an intoxicated condition. This is the argument that prosecutors make when a person refuses to submit to a breathalyzer and there is no BAC reading. In order for you to be convicted of a DWI under this theory the prosecutor needs to prove beyond a reasonable doubt that you were operating a motor vehicle in an intoxicated condition. To prove this prosecutors will rely on police observation and how you performed on the field sobriety tests (FST). There are three field sobriety tests that are commonly given in NYC, which include the Walk and Turn, Stand on One Leg, and Finger to Nose. You are considered intoxicated under the law when you have consumed alcohol to the extent that you are incapable to a substantial extent of employing the physical and mental capabilities which you are expected to possess in order to be a reasonable and prudent driver.
If convicted of a DWI under either of these two theories, you will have a permanent criminal record. You will also have your license suspended for 6 months, face up to $1,000 in fines, up to 1 year in jail, need to install an ignition interlock device in your car, and have to pay a $750 DMV fee. Also, if you refused a breathalyzer, your license will be revoked for a period of 1 year regardless of the outcome of your criminal case.
DWIs will only be treated more harshly in the future. There are several bills up for consideration to make DWI an even more serious offense. The reason for this is research shows that one out of every five people convicted of DWI will be convicted again. Bill S4220 has already been passed by the Senate and if made into law would make a minimum of a 30 day jail sentence mandatory for repeat DWI offenders. Bill S2976, which has also passed Senate vote, would make it a crime for a person who is a supervising driver to be convicted of DWI even if they are not operating the vehicle. This would occur when a licensed driver is intoxicated and allows a driver who requires supervision (such as a learner's permit) to drive. If passed this will be called "Abigail's Law". Both of these bills passed the Senate with overwhelming support.