Misdemeanor DWI Laws in NYC

There are several different drunk driving charges that are classified as misdemeanors in New York. New York calls the crime of drunk driving Driving While Intoxicated or DWI. In addition, driving under the influence of drugs, which is also a misdemeanor, is called Driving While Ability Impaired By Drugs or DWAI By Drugs.

In New York, the punishment for Driving While Intoxicated as a misdemeanor is a combination of fines and assessments by DMV, a license suspensioNYC DWI Attorneyn or revocation, an ignition interlock device and programs to address driving while intoxicated. In addition, misdemeanor DWI can lead to a punishment of up to one year in jail. However, it is rare—but not impossible—for a person to be sentenced to jail if misdemeanor DWI is their first criminal conviction.

In New York, DWI crimes are listed under the Vehicle and Traffic Law or VTL. There are four main misdemeanor DWI charges in New York are:

  • Vehicle and Traffic Law Section 1192(2) or Per Se Driving While Intoxicated
  • Vehicle and Traffic Law Section 1192(3) or Common Law Driving While Intoxicated
  • Vehicle and Traffic Law Section 1192(4) or Driving While Ability Impaired By Drugs
  • Vehicle and Traffic Law Section 1192(4-a) or Driving While Ability Impaired By Drugs and Alcohol

If you or someone you know has been charged with DWI in New York, retaining an NYC DWI Lawyer early on is crucial in receiving a favorable outcome.

Per Se Driving While Intoxicated in New York: Vehicle and Traffic Law Section 1192(2)

Vehicle and Traffic Law Section 1192(2) states: “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.”

This is a long winded way of saying that blood alcohol content of .08% or more is considered illegal in New York. That’s what the term “per se” in the law means. The most common way for a person’s BAC to be tested is by a breathalyzer.

The breathalyzer test may be given to a driver on the roadside by a portable breath test device or PBT or a larger breathalyzer instrument at a police precinct or police barracks. Whether or not the breath test is admissible at trial is a different and more complicated question, addressed in part below. A blood test is another way that a person’s BAC is measured, especially if the DWI arrest involved a crash and the person is taken to a hospital.

In New York, a breath test of .08% BAC does not automatically mean that a person will be convicted of misdemeanor DWI and have a permanent criminal record. An experienced and knowledgeable defense attorney may be able to suppress the results of a breath test so it may not be admitted as evidence at a trial or to show that the breathalyzer was not functioning at the time of the test. In addition, even if a person is charged with DWI in New York, an aggressive defense attorney may be able negotiate a plea bargain to Driving While Ability Impaired or DWAI, which is a traffic infraction and not a crime.

Common Law Driving While Intoxicated in New York: Vehicle and Traffic Law Section 1192(3)

Common law driving while intoxicated is defined in Vehicle and Traffic Law Section 1192(3), which states: “No person shall operate a motor vehicle while in an intoxicated condition.” What exactly does that mean?

This DWI section is commonly charged when a driver is stopped for DWI and he or she refuses a chemical test, which is usually a breathalyzer. But, how does a prosecutor prove DWI common law intoxication without a BAC result from a breathalyzer or blood test?

When a driver is stopped for DWI in New York, police will request that a driver perform coordination tests. In New York, the NYPD will ask a driver to perform a physical coordination test. The test has three parts: (1) a one-leg stand, (2) a 9-step walk and turn and (3) the finger to nose. Outside of New York City, state or local police will ask a driver to perform a standardized field sobriety test, which also has three parts: (1) horizontal gaze nystagmus (involuntary movement of one’s pupil), (2) a one-leg stand and (3) a 9-step walk and turn. The results of the test, the observations of the police officer, may be highly subjective. However, in New York City, the NYPD video records the physical coordination tests, which is disclosed to the defense. And in some cases, local police record dashcam video of the test.

The observations of a police officer of a driver who is stopped for DWI may also be used as evidence. Those observations may include:

  • Slurred speech
  • Odor of alcohol
  • Poor driving such as swerving
  • Unsteadiness on one’s feet
  • Slow reactions to commands or directives

Finally, in New York, if a driver refuses to submit to a chemical test like a breathalyzer, the refusal can be used at trial as consciousness of guilty. That means that at trial a prosecutor may argue that the driver refused to take a breath test or other chemical test because he or she knew that she was drunk. Once again, a knowledgeable and skilled defense attorney may suppress a driver’s breath or chemical test refusal under certain circumstances, so a judge or jury never hears about the refusal at trial.

Driving While Ability Impaired by Drugs in New York: Vehicle and Traffic Law Section 1192(4)

In New York, it is illegal to drive after consuming any drug, whether an illegal drug or prescription medication. New York Vehicle and Traffic Law Section 1192(4) states: “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.”

It is important to note that the drug can be anything that affects a person’s ability to drive. That can mean anything that is illegal in New York. If in fact, the driver possesses an illegal drug, he or she can also be charged with Criminal Possession of a Controlled Substance.

Under the DWAI by Drugs law, any drug can also mean a prescription medication that affects a person’s ability to drive such as a sedative or sleeping medication. By Driving While Ability Impaired, the law means that 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.

If a driver is stopped for DWAI by Drugs, police may request that the driver submit to a chemical test, which is usually a urine or blood sample. And like DWI, police may also request that the driver perform physical coordination tests, by the NYPD if in New York City, or standardized field sobriety tests, by the state or local police, if outside New York City.

In addition, when determining if a person’s ability to drive has been impaired by drugs, the following factors may be considered by police:

  • The physical condition and/or appearance of the driver
  • The balance and coordination of the drive
  • The manner of speech of the drive
  • The presence or absence of an odor of drug (like marijuana)
  • The way the driver operated the car; and/or
  • The result of a chemical test

Driving While Ability Impaired by the Combined Influence of Drugs and Alcohol in New York: Vehicle and Traffic Law Section 1192(4-a)

It is also illegal in New York to drive a car while drunk and while under the influence of a drug or drugs. New York Vehicle and Traffic Law Section 1192(4-a) states: “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.”

If a driver is stopped for both Driving While Intoxicated and Driving While Ability Impaired By Drugs, then everything written above applies. First, police may request that a person perform physical coordination tests by the NYPD if in New York City or standardized field sobriety tests by the state or local police if outside of New York City. Next, police may ask the driver to take a chemical test, which may be a combination of both a breathalyzer and blood or urine test.