Misdemeanor DWI Charges
If you've been arrested in NYC for the first time for a DWI and you had a blood alcohol level of about 0.08 or higher and no one was seriously injured in any accident, and there were no children in your car, you were probably arrested and charged with a misdemeanor DWI.
If you are arrested for misdemeanor Driving While Intoxicated (DWI and sometimes called DUI), you may lose your car and your license before you are ever convicted. If convicted, you face possible incarceration (even for first time offenders), probation, alcohol treatment, alcohol monitoring, an ignition interlock device, a permanent criminal record, fines, fees, immigration consequences, and further license revocation.
The charges. During your arrest, the arresting officer will fill out an arrest report and related information which will recommend certain charges to the District Attorney. This is only a recommendation because the District Attorney can add additional charges and / or dismiss some or all of the charges. After the arrest report is sent to the District Attorney, your case may be filed in criminal court. The following are some of the most common DWI charges we see in misdemeanor DWI cases.
This charge is one of the most common charges, seen where there is a chemical test which says your blood alcohol level (BAC) is 0.08 or greater. This law reads as follows:
“Operating a motor vehicle while under the influence of alcohol or drugs. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.”
This charge applies when your BAC is allegedly 0.18 or greater. It reads as follows:
“AGGRAVATED DWI .18 OF 1% OR MORE ALCOHOL IN BLOOD
1192. Operating a motor vehicle while under the influence of alcohol or drugs. 2-a(a). Aggravated driving while intoxicated; per se.
No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.”
This charge applies when you are allegedly intoxicated based on the arresting (or other) officer's observations. It can be chargedeven in the absence of a definitive BAC. This section, more than the above two, depends greatly on the circumstances of your case. As you read the charge, note the simplicity of the language and therefore the danger of misuse. It reads as follows:
“DRIVING WHILE INTOXICATED
Operating a motor vehicle while under the influence of alcohol or drugs. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.”
This section is a traffic infraction, but it still carries the possibility of incarceration and other consequences. It is also easier for the State of New York to charge because you do not have to have at least a 0.08 BAC to be guilty. Instead, you only need to be “impaired” which is very subjective but debatable. This section reads as follows:
DRIVING WHILE ABILITY IMPAIRED BY THE CONSUMPTION OF ALCOHOL
Operating a motor vehicle while under the influence of alcohol or drugs. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
Were you allegedly driving while under the influence of something other than alcohol? If so, that may explain being charged with this section which is sometimes referred to as ‘driving while high.’ One of the challenges to the government is proving that you were actually under the influence. This is because the intoxilyzer does not measure substances other than alcohol so accurate testing for non-alcoholic substances is challenging for the police. This section reads as follows:
“OPERATING MOTOR VEHICLE IMPAIRED BY DRUGS
Operating a motor vehicle while under the influence of alcohol or drugs. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.”
What is DWI? DWI generally stands for Driving While Intoxicated which is a general term that discusses local laws that prohibit the operation of a motor vehicle while intoxicated or impaired by the consumption of drugs or alcohol in the US and elsewhere.
What is DUI? DUI, which stands for Driving Under the Influence, is a different acronym than DWI but refers to a similar concept. So, DUI is a general term to describe local laws that prohibit the operation of a motor vehicle while under the influence of drugs or alcohol.
Is it DWI, DUI, or DWAI in New York? This is debated but not that consequential since neither acronym is explicitly used under New York law. New York’s Vehicle and Traffic law does not explicitly use these acronyms so there is no law entitled "DWI" or "DUI" in New York. Instead, New York's most common offense for operating while intoxicated is "Operating a motor vehicle while under the influence of alcohol or drugs" which might be abbreviated OMVWUIAD and, for obvious reasons, it's easier for people to discuss DWI or DUI and people know what you are talking about inside and outside of New York. In New York, the term “driving while intoxicated” (DWI) is mentioned in VTL 1192(2) which prohibits driving while 0.08 or greater and is one of the most commonly charged offenses. Driving under the influence is also generally prohibited under VTL 1192 and prohibits intoxicated driving such as if you are 0.08 or just impaired (buzzed) so if you get arrested for DWI in New York, you could describe it as a DWI or DUI. Buzzed driving (under 0.08 or less than intoxicated) is typically charged under VTL 1192.1, Driving while ability impaired which, in New York, is sometimes abbreviated DWAI.