Overview of New York DWI Laws

New York has some of the strictest drunk driving laws in the nation, with multiple tiers of offenses based on blood alcohol content (BAC) and enhanced penalties for aggravating factors. Unlike most states that use the term "DUI" (Driving Under the Influence), New York law uses DWI (Driving While Intoxicated) and DWAI (Driving While Ability Impaired) to categorize different levels of impairment.

All DWI and DWAI offenses in New York are governed by Vehicle and Traffic Law (VTL) § 1192. New York distinguishes between:

• DWAI (Ability Impaired): BAC 0.05-0.07% - Traffic infraction (not a crime)
• DWI (Driving While Intoxicated): BAC 0.08% or higher - Misdemeanor
• Aggravated DWI: BAC 0.18% or higher - Misdemeanor (enhanced penalties)
• DWI with Child (Leandra's Law): DWI with passenger under 16 - Felony
• Repeat DWI: Second offense in 10 years - Felony

New York also requires ignition interlock devices for all DWI convictions under Leandra's Law, and imposes strict license revocation (not suspension) that prevents driving entirely during the revocation period except with a conditional license.

Types of DWI Offenses in New York

New York law recognizes several distinct DWI-related offenses under VTL § 1192:

Penalties for DWI in New York

New York imposes escalating penalties based on BAC level, number of prior offenses, and aggravating factors:

First Offense DWI (VTL § 1192.2 or § 1192.3)

First Offense Aggravated DWI (BAC 0.18%+) (VTL § 1192.2-a)

Second DWI Offense (Within 10 Years) (VTL § 1192.2 or § 1192.3)

Third (or More) DWI Offense (Within 10 Years) (VTL § 1193.2(b)(12))

Leandra's Law: DWI with Child Passenger

New York's Leandra's Law (named after 11-year-old Leandra Rosado who was killed by an intoxicated driver in 2009) significantly enhanced DWI penalties when children are in the vehicle:

VTL § 1192.2-a(b): DWI with Child Under 16

• Classification: Class E Felony (even for first offense with no prior DWI)
• Prison: Up to 4 years in state prison
• Fine: Up to $5,000
• License Revocation: Minimum 1 year
• Ignition Interlock: Mandatory
• Applies To: ANY person who drives intoxicated (BAC 0.08%+ or impaired) with a child under 16 in the vehicle

Aggravated DWI with Child (BAC 0.18%+ with child under 16)

• Classification: Class E Felony (enhanced)
• Prison: Up to 4 years
• Fine: $1,000 - $5,000
• Even harsher penalties than standard Leandra's Law offense

Leandra's Law: Ignition Interlock Requirement

Leandra's Law also mandates ignition interlock devices (IID) for ALL DWI convictions in New York:

• Mandatory for ALL DWI convictions (first offense and repeat offenses)
• Minimum 6-12 months depending on offense
• Required for conditional license during revocation period
• Required after full license restoration for specified period
• Cost: $100-$150 installation + $75-$100/month monitoring (defendant pays)
• Violations: Attempting to bypass IID or failed breath test triggers alert to DMV and probation

License Revocation vs. Suspension

New York law distinguishes between license suspension and revocation. DWI results in revocation, which is more serious:

License Revocation (DWI)

• What It Means: License is completely terminated - you have NO driving privileges
• Duration: Minimum 6 months (first DWI), 1 year (Aggravated DWI or second offense)
• Restoration: Must apply for NEW license after minimum period expires
• Requirements for Restoration:
  • Pay $100 re-application fee
  • Pay driver responsibility assessment ($250/year x 3 years)
  • Complete DMV-approved Drinking Driver Program (DDP) - 7-week course, ~$225
  • Install ignition interlock device
  • File SR-22 insurance (high-risk insurance certificate)
  • Pass written and road tests (may be required)

Conditional License

While your license is revoked, you may be eligible for a conditional license that allows limited driving:

• Eligibility: Available after minimum revocation period (often 30 days for first offense if enrolled in Drinking Driver Program)
• Permitted Driving:
  • To/from work or course of employment
  • To/from DMV-approved Drinking Driver Program
  • To/from medical appointments
  • To/from school or daycare for children
• Restrictions: ONLY for approved purposes - no social, recreational, or personal errands
• Ignition Interlock Required: Must have IID installed to receive conditional license
• Not Available For: Repeat offenders, chemical test refusals, some Aggravated DWI cases

Administrative License Suspension (Pre-Conviction)

New York DMV can suspend your license before conviction based on arrest alone:

• Chemical Test Refusal: Immediate suspension, minimum 1-year revocation (civil penalty, separate from criminal case)
• Underage DWI (BAC 0.02%+): Immediate suspension under Zero Tolerance Law
• No Hearing Required: DMV can suspend based on police report alone
• Refusal Hearing: If you refuse chemical test, you can request DMV hearing within 15 days to contest suspension

Chemical Test Refusal (Implied Consent)

New York's implied consent law (VTL § 1194) requires all drivers to submit to chemical testing when arrested for DWI:

Consequences of Refusal

Refusal Hearing

• Request Deadline: Must request hearing within 15 days of arrest
• Burden of Proof: DMV must prove (1) police had reasonable grounds for arrest, (2) you were arrested for DWI, (3) you refused chemical test after proper warning
• Scope: Hearing only addresses administrative suspension - does NOT address criminal DWI charge
• No Conditional License: Refusal revocation does NOT make you eligible for conditional license in most cases

DWI Arrest Process in New York

Understanding the DWI arrest process helps you protect your rights:

Step 1: Traffic Stop

• Reasonable Suspicion Required: Officer must have valid reason to stop (traffic violation, erratic driving, checkpoint)
• Initial Contact: Officer observes signs of intoxication (odor of alcohol, slurred speech, bloodshot eyes)
• Questioning: Officer may ask if you've been drinking (you have right to remain silent - politely decline to answer)

Step 2: Field Sobriety Tests (FSTs)

• Common Tests: Horizontal Gaze Nystagmus (HGN), Walk-and-Turn, One-Leg Stand
• Voluntary: FSTs are NOT mandatory - you can refuse without automatic penalty
• No BAC Measurement: FSTs only measure officer's subjective opinion of impairment
• Refusal: Refusing FSTs may still lead to arrest if officer has other evidence

Step 3: Preliminary Breath Screening (PBT)

• Roadside Test: Portable breath test at scene (different from post-arrest breath test)
• Voluntary: PBT is voluntary - no automatic penalty for refusal
• Not Admissible: PBT results are generally NOT admissible at trial (only to establish probable cause for arrest)

Step 4: Arrest

• Probable Cause: Officer arrests if they have probable cause to believe you are intoxicated
• Miranda Rights: Officer must read rights before custodial interrogation
• Transport: Taken to police station or testing facility

Step 5: Chemical Testing (Post-Arrest)

• Breath Test: Most common - Datamaster or Intoxilyzer breath machine
• Blood Test: May be required if breath test unavailable or drugs suspected
• Urine Test: Rarely used (only for drug impairment when blood not available)
• Implied Consent Warning: Officer must warn that refusal results in license revocation and civil penalties
• Mandatory: Refusal triggers automatic 1-year license revocation + $500 fine (civil penalty, separate from criminal case)

Step 6: Booking & Release

• Fingerprints & Photos: Standard booking process for misdemeanor
• Desk Appearance Ticket (DAT): For first-time DWI, usually released with DAT to appear in court
• Arraignment: Typically within 24 hours if held overnight (felony cases)
• Bond: First-time DWI usually released on own recognizance (no bail)

DWI Defense Strategies

Common defenses to DWI charges in New York include:

Constitutional Defenses

• Illegal Stop: Officer lacked reasonable suspicion to initiate traffic stop
• Illegal Search: Evidence obtained in violation of Fourth Amendment rights
• Illegal Arrest: Officer lacked probable cause to arrest
• Miranda Violation: Statements obtained after custodial interrogation without Miranda warning

Technical Defenses

• Breath Test Calibration: Machine not properly calibrated or maintained
• Breath Test Administration: Officer not properly trained or did not follow protocol (20-minute observation period required)
• Rising BAC: BAC was below 0.08% while driving but rose by time of test
• Mouth Alcohol: Residual alcohol in mouth (GERD, dental work, recent consumption) created falsely high reading
• Medical Conditions: Diabetes, neurological disorders, injuries affected FST performance

Factual Defenses

• Not Driving: Prosecution cannot prove you were actually operating the vehicle
• Not Intoxicated: Symptoms of intoxication caused by medical condition, fatigue, medications
• Improper FST Administration: Officer did not properly administer field sobriety tests
• Witness Testimony: Witnesses contradict officer's observations

Plea Bargaining

In some cases, prosecutors may offer plea bargains:

• DWI to DWAI: Reduce charge from DWI (misdemeanor) to DWAI (traffic infraction) - no criminal record
• Aggravated DWI to DWI: Reduce from Aggravated DWI to standard DWI
• Conditional Discharge: Probation instead of jail time
• Availability: Depends on BAC level, facts of case, prior record, county policy (some counties have no-plea policies for DWI)

Conditional Discharge

Conditional discharge is a sentencing option that allows first-time offenders to avoid jail:

What Is Conditional Discharge?

• No Jail Time: Court releases you without incarceration
• Conditions: Must comply with court-ordered conditions for 1-3 years
• Probation: Typically includes probation supervision
• Successful Completion: Case closed with no further penalty
• Violation: Violating conditions can result in re-sentencing including jail time

Typical Conditions

• Complete Drinking Driver Program (DDP) - 7-week course
• Attend Victim Impact Panel
• Alcohol/substance abuse evaluation and any recommended treatment
• No new criminal offenses
• Pay all fines, fees, and surcharges
• Install and maintain ignition interlock device
• Random alcohol testing
• Community service (hours vary)

Eligibility

• First-Time Offenders: Most commonly granted for first DWI with no aggravating factors
• Not Available For: Repeat offenders, felony DWI, DWI with injuries, high BAC cases (varies by county)
• Discretionary: Judge has discretion to grant or deny conditional discharge

Collateral Consequences of DWI

Beyond criminal penalties, DWI convictions have long-lasting consequences:

Insurance

• SR-22 Requirement: Must file SR-22 certificate (high-risk insurance proof) for 3 years
• Rate Increases: Insurance premiums can double or triple
• Policy Cancellation: Some insurers refuse to cover DWI offenders

Employment

• Background Checks: DWI appears on criminal background checks (misdemeanor or felony)
• CDL Holders: DWI conviction results in 1-year CDL disqualification (lifetime for second offense)
• Professional Licenses: May affect licenses for healthcare, law, education, finance
• Employer Policies: Some employers terminate or refuse to hire applicants with DWI

Immigration

• Deportability: Multiple DWI convictions or DWI with aggravating factors may be grounds for deportation
• Inadmissibility: DWI can affect ability to obtain visa or green card
• Criminal Record: Any criminal conviction (even misdemeanor) affects immigration status

Education

• College Admissions: May affect applications requiring disclosure of criminal convictions
• Financial Aid: Federal student aid eligibility may be affected
• Scholarships: May lose athletic or academic scholarships

Travel

• Canada: DWI conviction makes you inadmissible to Canada (considered serious crime)
• Other Countries: May affect entry to other countries with strict criminal record requirements

Expungement & Sealing

New York does NOT allow expungement (destruction) of DWI convictions, but limited sealing is available:

Criminal Procedure Law § 160.59: Sealing (Limited)

• Eligibility: Up to 2 convictions (only 1 can be felony) can be sealed after 10 years
• DWI Exclusion: VTL § 1192 DWI convictions are specifically EXCLUDED from sealing under CPL § 160.59
• Result: DWI convictions CANNOT be sealed in New York

Certificate of Relief from Disabilities

• What It Does: Removes automatic bars to employment and professional licenses
• Does NOT: Seal or expunge conviction
• Eligibility: Available after completion of sentence or 5 years (misdemeanor) or 10 years (felony)

Permanent Record

Important: DWI convictions remain on your New York criminal record and DMV driving record permanently. They cannot be expunged, sealed, or removed. This is why avoiding conviction through dismissal or reduction to DWAI is so critical.

Frequently Asked Questions

What is the difference between DWI and DUI in New York?

New York law uses DWI (Driving While Intoxicated) for BAC 0.08% or higher, DWAI (Driving While Ability Impaired) for BAC 0.05-0.07%, and Aggravated DWI for BAC 0.18% or higher. New York does not use the term "DUI." DWAI is a traffic infraction (not a crime), while DWI and Aggravated DWI are misdemeanors or felonies.

What are the penalties for a first-time DWI in New York?

First-time DWI (unclassified misdemeanor) carries up to 1 year in jail, $500-$1,000 fine, minimum 6-month license revocation, $250 annual driver responsibility assessment for 3 years, mandatory ignition interlock device, and possible conditional discharge with probation. A conditional license may be available after the minimum revocation period.

What is Leandra's Law in New York?

Leandra's Law (VTL § 1192.2-a) makes it a Class E felony to drive intoxicated with a child under 16 in the vehicle, even for first-time offenders. Penalties include up to 4 years in prison, up to $5,000 fine, and minimum 1-year license revocation. The law also requires ignition interlock devices for all DWI convictions.

How long is my license suspended for DWI in New York?

DWI results in license revocation (not suspension) for minimum 6 months (first offense), 1 year (second offense in 10 years), or 1 year (third offense - permanent for repeat felony offenders). Aggravated DWI revocation is minimum 1 year. Chemical test refusal results in minimum 1-year revocation. After minimum period, you may apply for conditional license or full license restoration.

Can I refuse a breathalyzer in New York?

You can refuse, but New York's implied consent law (VTL § 1194) imposes civil penalties: minimum 1-year license revocation (first refusal), 18-month revocation (prior DWI conviction or refusal within 5 years), plus $500 civil penalty. Refusal can also be used as evidence against you in court. Police may obtain search warrant for forced blood draw.

What is a conditional discharge in New York DWI?

Conditional discharge is a sentencing option where the court releases you without jail time subject to conditions (alcohol evaluation, treatment, victim impact panel, no new offenses) for 1-3 years. Successfully completing conditions results in no further penalty. Violating conditions can result in re-sentencing including jail time. Available for first-time offenders with no aggravating factors.

Does New York have a lookback period for DWI?

New York uses a 10-year lookback period for determining if a DWI is a second offense (misdemeanor) and a 10-year period for third offense (felony). However, any DWI conviction remains on your driving record permanently and can affect insurance, employment, and future sentencing even beyond 10 years.