Driving While Ability Impaired – DWAI Laws in NYC

Most states give the name driving under the influence or DUI to the crime of drunk driving. However, instead of DUI, New York calls drunk driving DWI, or Driving While Intoxicated.

The least severe DWI charge in New York is called Driving While Ability Impaired or DWAI. Driving While Ability Impaired is the least harsh of New York’s DWI laws. It is punished by a traffic infraction and not a crime. So, a DWAI conviction does not give a person a criminal record.

Driving While Ability Impaired, which is listed under New York’s Vehicle and Traffic Law or VTL Section 1192(1), states: “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.” But what does it mean for a person’s “ability to operate . . . [to be] impaired by the consumption of alcohol?”

New York defines a driver’s abilities as impaired when the physical and mental abilities that a driver is expected to possess in order to operate a vehicle as a reasonable and prudent driver are impaired to any degree. But what does that mean?

In order to prove DWAI, New York does not require any chemical test, like a breathalyzer, or physical test, like the coordination tests given by the New York City Police Department or NYPD or standardized field sobriety tests by state or local police outside of New York City. Rather, when determining if a person’s ability to drive has been impaired, the following factors will be considered:

• The driver’s physical condition and appearance
• The driver’s balance, coordination and any slurred speech
• The presence or absence of an odor of alcohol
• The manner in which a driver operated the car; and/or
• Any breath test results

Under New York State Law, if a driver’s blood alcohol content or BAC is .05% or less, it is evidence that a person’s ability to drive is not impaired. (Under New York State Law, if a driver’s BAC is at least .08% the person is considered intoxicated under the per se DWI law.)

It is quite rare for DWAI to be the only arrest charge. Rather, DWAI is usually charged along with DWI. The theory goes, if a driver is intoxicated, then the person’s ability to drive is also impaired. The legal name for this is a lesser included offense.

Driving While Ability Impaired is a frequent plea bargain to the crime of DWI. The circumstances under which DWAI is offered as a plea bargain vary from borough to borough in New York City and from county to county throughout New York State. Generally speaking, a driver who is charged with the crime of DWI may be offered a plea bargain to DWAI if: the driver did not refuse a breathalyzer; the breathalyzer result was fairly low, usually not more than .13% BAC, and the arrest for DWI did not involve any personal injury to the driver or any other person or property damage to the driver’s car or anybody else’s car or property.

The punishment for DWAI for a first-time conviction is a fine of between $300 and $500 and up to 15 days in jail, though jail is rarely if ever required as part of a DWAI plea bargain. In addition, there is a required 90-day driver’s license suspension, a court surcharge of $255, which is $260 in a local Justice court, a DMV driver responsibility assessment of $250 a year for 3 years and the attendance in the Drinking Driver Program, a 7-session weekly program of 16 total hours.

To repeat, a plea bargain to DWAI is considered a conviction to a traffic infraction. Keep in mind that a guilty plea to DWAI does not result in a criminal record.