A drunk or drugged driving arrest in New York starts two cases at once: a criminal case in court and an administrative case at the Department of Motor Vehicles. Decisions made in the first few days, often before anyone has seen the police paperwork, affect both.
We review the stop, the field tests, the breath or blood procedure and the timeline of the arrest, and we deal with the license consequences in parallel with the criminal charge.
The charges under VTL § 1192
- Driving while ability impaired (DWAI, § 1192(1)): a traffic infraction, not a crime, but it still carries a fine and a license suspension.
- Per se DWI (§ 1192(2)): operating with a blood alcohol content of .08% or more.
- Common-law DWI (§ 1192(3)): intoxication proved through driving behavior and observations, with or without a test result.
- Aggravated DWI (§ 1192(2-a)): a BAC of .18% or more, or driving intoxicated with a child 15 or younger in the vehicle (Leandra’s Law, a felony).
- DWAI-drugs and combined influence (§ 1192(4) and (4-a)).
- A prior DWI conviction within ten years can make a new charge a felony.
Your license after an arrest
If a test shows .08% or more, the court will usually suspend your license at arraignment pending the outcome of the case. A hardship privilege may be available if you can show you have no other way to get to work or school, and the hearing for it happens quickly.
Refusing a chemical test leads to a separate DMV refusal hearing. A first refusal can result in revocation of at least one year and a civil penalty, regardless of what happens in criminal court.
Where DWI cases are won or narrowed
- Whether the officer had a lawful basis to stop the car or approach the driver.
- Whether the breath instrument was calibrated and operated by a certified operator, and whether the observation period was followed.
- Whether refusal warnings were given clearly and correctly.
- Whether statements should be suppressed, and whether video contradicts the reports.
- Whether a reduction to DWAI, which is not a criminal conviction, is realistic.
Questions clients ask
Is a first DWI in New York a misdemeanor?
Usually, yes. A first DWI under VTL § 1192(2) or (3) is generally an unclassified misdemeanor. It becomes a felony in certain situations, such as a prior DWI conviction within ten years or a child passenger under Leandra’s Law.
Will I need an ignition interlock device?
A misdemeanor or felony DWI conviction generally requires an ignition interlock device for a period set by the court. A DWAI infraction does not carry that requirement.
This page is general information about New York law, current as of its last review. It is not legal advice about your situation, and laws and court practices change. Speak with a lawyer about the facts of your case.