What You Should Know about DWI/DUI in New York.

I get one question most of all from almost everyone I talk to; "What is the difference between driving while intoxicated (DWI) and driving under the influence (DUI)?" My first thought is always to say "the letters are different," but the real answer is much more complex. 


As a prosecutor, I handled more of these types of cases than any other. There are a few different classes of drunk driving statutes on the books. The New York Vehicle and Traffic Law (VTL) defines three levels; one is a violation, equal to a traffic infraction and the other two are misdemeanors, punishable by up to one year in jail.

The violation, VTL 1192.1 is driving while ability impaired. This is what would be called driving under the influence. What this means is, while the motorist is not technically drunk, their ability to drive is impaired by the consumption of alcohol. Even one drink can place you into this category since alcohol by its very nature impairs your ability to do just about anything. 

The two misdemeanors 1192.2 and 1192.3 are driving while intoxicated. 

1192.2 Driving while intoxicated per se sets a legal limit on the amount of alcohol you can consume before you are considered legally drunk. The law states that if you drive with a blood alcohol content of 0.08% or more, you are legally drunk. This blood alcohol content (BAC) is measured using a breath test, blood, urine or saliva sample. Police officers will often ask you to blow into a portable breathalyzer machine at the site of the vehicle stop to determine what your BAC is. These portable breath tests (PBTs) are not admissible in court, however, if you are arrested you will be taken to the Intoxicated Driver testing Unit (IDTU) at the precinct and asked to blow into a larger machine called an Intoxilyzer. This machine is generally well calibrated and well maintained and will be admitted in court unless your attorney can pick out problems with it or the administration of the breath test. 

There is a subdivision of this section called 1192.2-a which is aggravated driving while intoxicated and sets a limit of 0.18% BAC. This statute carries tougher penalties. 

1192.3 Driving while intoxicated is the common law statute for drunk driving. It is the same as 1192.2, however, it does not set a legal limit for drunkenness based on your BAC. This is the statute used when police officers offer you field sobriety tests and note your physical condition based on their observations. The field sobriety test includes a number of actions you must complete which show your level of sobriety such as walking a line, standing on one leg and the coordination test where you are asked to close your eyes and touch the tip of your nose with either your left or right hand, whichever the officer directs you to use.

Some of the indicia of a drunk driver that the police will put in their reports are red watery eyes, slurred speech, unsteady gate (stumbling when you walk), and the odor of alcohol on your breath or person. These are the common law signs of intoxication and will be included in just about EVERY report for drunk driving. There may be other signs reported by the officer such as confusion, agitation or an inability to follow directions. 

In case you're a fan of marijuana or other illicit drugs and thought you could escape the state's DWI laws, consider this, there is also a section for driving while under the influence of drugs, 1192.4 and a combination of drugs and alcohol, 1192.4-a. While there is no breath test to check for drugs, you can be asked and in some instances even compelled to submit to a blood or urine test to determine the presence drugs. 

What should you know in case you are stopped for DWI? In New York, when you get a drivers license you agree to submit to chemical tests to check for the presence of drugs and alcohol. The police officer is required to ask you if you are willing to submit to a chemical test for alcohol.

Refusals. If you refuse, the officer is required to warn you of the consequences of a refusal. The Department of Motor Vehicles (DMV) issues separate penalties for refusing a chemical test aside from any criminal sanctions you may be facing. Aside from going to criminal court to deal with your arrest, you will also have to appear at a separate DMV administrative refusal hearing. Your license will be suspended immediately upon your arrest and you will have to appear at a DMV refusal hearing. The DMV will revoke your license for one year if they determine you refused to submit to a chemical test for alcohol regardless of whatever may be happening in the criminal case. 

An attorney cannot advise you to refuse, and you should never ask your lawyer whether you should refuse or not. That decision is completely yours and there are negative consequences to refusing a chemical test. 

Sometimes when the police stop you, they may not offer a field sobriety test at the site of the stop. They may wait until you are taken back to the IDTU and conduct the test there. At the IDTU, the tests are always recorded by video in order to be used in court against you. They will ask you to perform the coordination tests and then blow into the Intoxilyzer. They will also advise you of the consequences of refusing the tests. At the end, they will ask you to walk up to the camera and state your name and address for the record. After all the testing is complete, you will be taken to central booking and your arrest will proceed through the court system. So begins the prosecution against you. 

Penalties. VTL 1192.1 is a traffic infraction and carries a fine of not less than $300 and not more than $500, or incarceration for no more than 15 days or a fine and incarceration combined. Your license will be suspended for 90 days.

VTL 1192.2, 3, 4 or 4-a is a misdemeanor punishable by a fine of not less than $500 and not more than $1,000 or incarceration for up to one year or both a fine and incarceration together. Your license will be suspended for six months. 

VTL 1192.2-a is a misdemeanor punishable by a fine of not less than $1,000 and not more than $2,000 and incarceration for up to one year or both a fine and incarceration together. The court may also require you to install an ignition interlock device which is a device you blow into to test for alcohol. If alcohol is detected the vehicle will not start. Your license will be suspended for one year. 

Remember, aside from these criminal sanctions and license suspensions, the DMV can also revoke your license for one year and require a civil penalty of $500 before you can reapply. The criminal court may also require you to attend a Drunk Driver Program (DDP), complete community service, attend a Victim Impact Panel (VIP), and install an ignition interlock device. In come cases, you may be eligible for a conditional license that allows you to drive to work, school, medical appointments and to the DMV for license related activities.

The consequences are steep and costly. All of the additional requirements such as the classes and community service must be paid for by YOU, in addition to the statutory fines and court surcharges. An experienced attorney can help you through this and try to negotiate a deal for you that will keep costs low and keep you your license. 

Please do not drink and drive. Not only can it cost you thousands of dollars in legal fees, fines, and expenses, but you also put yourself, your passengers, other motorists and pedestrians at great risk of injury or death. Do not become another statistic. 

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