The Institute for Traffic Safety Management and Research reports that, in each year from 2015 to 2019, at least 30,000 people were arrested for alcohol-impaired driving in New York. The state employs one of the most comprehensive and exacting systems of “driving while impaired” (DWI) laws in the nation. 

Being charged with a DWI offense can be an unnerving and deeply troubling experience for those accused on uncertain grounds and those who had a brief lapse in judgment. Whatever one’s reason for finding themselves in this most unfortunate predicament, successfully navigating a DWI case will require excellent representation by a criminal defense attorney with extensive experience handling DWI cases. 

Types of DWI Offenses Under New York’s State Law

One arrested for a DWI offense should first determine the precise offense with which they are being charged. New York’s comprehensive system of DWI laws consists of seven types of DWI offenses. The possible penalties for a first-time DWI offense in New York are as varied as New York’s DWI offenses themselves. As shown below, the penalties available to the court include both mandatory and optional penalties. In the criminal context, the law frequently affords courts discretion in criminal sentencing so a sentence may be appropriate for the offender and the circumstances of the offense. As such, the listed penalties are best understood as the range of penalties one is subject to for each DWI offense, with some of the other listed penalties mandated by law, as indicated.

Penalties for First-time DWI Offenses

As indicated above, the possible penalties for a DWI offense in New York involve various elements, divisible into three general categories: fines and jail time, license suspension or revocation, and additional penalties. 

Fines and Jail Time

Sanctions involve fines, jail time, or a combination of the two. Sanctions are the most discretionary of the three categories of possible penalties. For example, the court can choose from within a range of fine amounts or sentence one to anything below the provided maximum jail sentence. The court also has discretion in some cases to dispense with fines and jail time in favor of more lenient punishments, such as community service or house arrest. It is the job of a skilled DWI defense attorney to advocate for such reductions in one’s sentence.

License Suspension or Revocation

License suspension or revocation are mandatory penalties under the law. “Suspension” and “revocation” are separate, distinct administrative penalties. Suspension of one’s license is temporary, meaning the license or driving privilege is taken away for the specified period. Revocation, on the other hand, amounts to the cancellation of one’s license, rectifiable only by getting a new license at the conclusion of the revocation period.

Additional Penalties

The additional penalties also feature a combination of those mandated by law and those which the court has discretion to order. These penalties are particularly exacting, as they impose significant financial expenses as well as burdensome requirements interrupting daily life. The various additional penalties include:

• Driver responsibility assessment fee: A fee drivers convicted of certain driving-related offenses must pay to the DMV annually for a total of three years. It is intended to deter drivers from committing or re-committing such offenses.
• Ignition interlock device: A court-ordered device, purchased and installed at the driver’s expense, that is essentially a breathalyzer connected to the car’s ignition system. The device requires the driver’s breath to be free and clear of alcohol before it will allow the car’s ignition to start.
• Screening for alcohol/drug dependency: One speaking with a certified professional about one’s relationship with alcohol and/or drugs. That professional then decides whether the person is in need of further assessment for alcohol and/or drug dependency.
• Assessment for alcohol/drug dependency: A relatively in-depth interaction with a certified professional who will determine whether one has an alcohol and/or drug dependency abuse problem. If one is deemed to have such a problem, the professional will recommend a treatment plan, which the individual will be required to follow as a term of their probation
• Victim Impact Program: A session, typically lasting only a few hours, consisting of a presentation by a panel of DWI victims and surviving family members.
• Misdemeanor/felony surcharge: Intended as a further deterrent against the commission of DWI offenses, the misdemeanor/felony surcharges are legally mandated fees one must pay in addition to those fees ordered as part of their initial sentence upon conviction.
• Crime victim assistance fee: Levied in addition to the fees ordered as part of one’s initial sentence upon conviction, the crime victim assistance fee contributes to funds reserved for the State’s compensation of victims of crimes.

An important caveat is that a DWI offense can carry far more serious penalties when combined with other circumstances, such as the offense resulting in injury, death, or extensive damage. A skilled attorney can prove incredibly useful in deciphering the precise charges levied and the possible penalties one might be facing.

Sentencing Alternatives for a First-time DWI Conviction

While many of the possible penalties for a first-time DWI conviction are a frightening prospect for those accused of a DWI offense, the list of sanctions does not tell the full story. One of the chief benefits of getting the representation of an established DWI attorney is their capacity to advocate for leniency at the sentencing stage. A judge can be convinced not only to sentence one convicted of a DWI offense to a less severe penalty from within the ranges prescribed by law, but also to dispense with certain optional penalties altogether in favor of less onerous alternative punishments. Some examples include:

• House arrest: Being confined to one’s home with monitoring by an electronic device. The terms can be negotiated to allow one to continue to go to work and other necessary appointments.
• Rehab: Entering a drug or alcohol rehabilitation program to deal with one’s substance abuse problems. 
• Community service: Being required to perform a specified number of hours of work on a project within the community, usually one approved by the court.
• Weekend jail: If one is to receive jail time, it can be negotiated that one serves their term in increments by going to jail only on weekends.
• Optional additional penalties:  As shown in the table above, these would include options such as an ignition interlock device.

What Happens After One is Arrested for a DWI?

Being arrested for a DWI, or having a family member or close friend who has just been arrested for a DWI, can be a daunting, unsettling process. Not only is a criminal prosecution complicated, but the prospect of a criminal conviction can be terrifying given the significant consequences it can have on one’s life. A seasoned attorney can shed light on the procedural steps and manage an accused driver’s case to ensure a favorable outcome. Following is a step-by-step overview of the general process of a first-time DWI case in New York.

How to Get a DWI Dismissed

When thinking about defending against a DWI charge, one’s first step should always be to seek the services of a qualified criminal defense attorney with experience handling DWI cases. Though in Faretta v. California, 422 US 806 (1975), the Supreme Court affirmed criminal defendants’ rights to represent themselves if the judge deemed them competent to do so, the criminal process is exceedingly complicated and those accused of a DWI offense have much at stake, so it is not advisable for one to attempt to represent oneself.

Many defenses can be argued to undermine the State’s case. When assisting a client accused of a DWI offense, we scrutinize all of the available evidence, from the circumstances of the traffic stop to chemical testing and police questioning, searching for inconsistencies in the evidence capable of producing doubt as to whether or not our client was indeed guilty of the charged offense.

Breathalyzer Error

The most common defenses asserted in a DWI case pertain to the procedures and apparatus used by the police to determine that a person was too intoxicated to safely operate a motor vehicle. For example, breathalyzers are prone to inaccuracies. They carry a .01% margin error, meaning they can be off by .01%. Another potential problem with breathalyzers is that they can overestimate one’s BAC if the police officer does not wait long enough before administering the test. Breathalyzers function by picking up evidence of alcohol content from one’s lungs. If an officer does not wait long enough before administering the breathalyzer and the driver has substantial alcohol residue in their mouth, the device can illicitly factor in the alcohol content in one’s mouth, thus unduly overestimating the driver’s actual BAC. These inaccuracies can make all the difference to one’s case, particularly when their measured BAC was just within the range of running afoul of the DWI laws, such as registering a .09% BAC.

Misjudged Sobriety Tests

Another common example is arguing that the arresting officer used questionable judgment when conducting the field sobriety test, especially when the State’s case relies heavily on the results of this test. Field sobriety tests are inherently subjective. While officers often have drivers perform more or less standardized tests, the officer’s judgment of the driver’s performance is subject to inaccuracy. An attorney can cross-examine the testifying officer, seeking to poke holes in their recollection of the field sobriety test and demonstrate that perhaps the officer’s judgment of the driver’s performance was questionable. 

Compromised Blood Samples

Blood samples intended to show a driver’s BAC can be challenged as well. Blood test results can be compromised in multiple ways. One common example is improper storage. Blood test results can also be challenged on the basis that one’s BAC rises over time, so a driver’s BAC as demonstrated by such results could be higher than it was when the officer first pulled them over if a substantial period of time elapsed between the traffic stop and the blood draw.

Other Defenses

Other common defenses involve allegations that officers failed to respect a driver’s constitutional rights, such as by obtaining a confession by illicit means or pulling the driver over without probable cause. It can also be argued that a driver registered a high BAC for reasons wholly unrelated to the consumption of alcohol, such as the rare “Auto-Brewery Syndrome” whereby some people’s bodies ferment sugar and starch they consume, producing alcohol.

Successful DWI Defense: People v. Brown

A compelling example of a successful DWI defense is the case People v. Brown. A law enforcement officer pulled Brown’s vehicle over after observing him swerving and not driving on the correct side of the road. In his report, the officer noted Brown’s erratic driving, his mellow demeanor, his allegedly impaired speech and coordination, and his failure of various of the field sobriety test exercises. The report did not note any odor of alcohol in Brown’s vehicle nor any admission from Brown that he had been drinking. Brown’s chemical test result indicated a 0.00% BAC.

Brown was charged with a DWI offense. On appeal, Brown claimed the charge should be dismissed because he could not have been “driving while intoxicated” if his BAC was 0.00%. The prosecution disputed this claim, citing the case People v. Cruz, which they read as only requiring that the defendant be shown to have operated a vehicle while lacking the ability to safely do so, without mention of a BAC requirement.

The court ruled in Brown’s favor and dismissed his DWI charge. They reasoned that the prosecution’s reading of People v. Cruz was incorrect, and the conclusions the prosecutions drew about the reach of the “driving while intoxicated” offense was undermined by other case law.

Plea Bargaining

A second crucial consideration in crafting one’s defense against a first-time DWI charge is the strength of the State’s case. Part of defending against a DWI charge is being realistic, and strategically weighing one’s options to bring about the best realistically possible outcome. Many times a DWI attorney’s best option is to negotiate a plea bargain, so their client is subjected to less severe penalties. This commonly arises when a driver’s BAC was just above the legal limit for a misdemeanor driving while intoxicated, per se offense. Where the State has a strong case, and with the clients’ full consent, our attorneys frequently negotiate a plea bargain for clients with this charge, whereby they plead guilty to driving while ability impaired by alcohol, a traffic infraction with far less severe penalties.

How a First-time DWI Conviction Affects Insurance

A DWI conviction can have a significant impact on one’s life long after the case’s resolution and the completion of one’s sentence. A common concern for those convicted of a DWI offense is how this conviction will impact their auto insurance once they are cleared to drive again.

An immediate effect can be cancellation of one’s insurance policy by the insurance company. When a person is charged with a DWI offense in New York, their license is certain to be suspended or revoked upon conviction. It also may be temporarily suspended earlier in the process, pending the prosecution of their case. New York law permits insurers to cancel a policy in “mid-term,” within sixty days after the commencement of a new policy, for various reasons, one of which is the suspension of the policyholder’s license. 

How Long Does a DWI Affect Insurance Rates in New York?

A DWI conviction also has the potential to impact auto insurance rates dramatically, with some sources estimating that rates increase by up to 76%. A DWI offense typically remains on one’s driving record for ten years. When determining rates for one’s policy, auto insurance companies vary in the amount of years they will look back on one’s driving record. They ordinarily “look back” in increments of three, five, or seven years. The raising of rates due to a factor such as a DWI conviction is commonly known as a “surcharge.”

An auto insurance surcharge generally lasts for three years. Fortunately, New York’s state law protects drivers convicted of a DWI from being taken advantage of by auto insurers. One prominent example is a law preventing policies from being surcharged to an amount more than three times the premium for the vehicle for which that policy charges the most. These surcharges are also limited to the premiums for no-fault coverage, collision coverage, and liability insurance.

Out-of-State Drivers: First-time DWI

There are three relevant categories of “out of state drivers” that might be charged and convicted of a DWI offense: non-New York motorists accused of a DWI offense in New York, New York motorists accused of a DWI offense in a state other than New York, and motorists with a New Jersey license accused of a DWI offense in New York. All three categories of drivers should first be aware of the Interstate Driver’s License Compact (IDLC).

Interstate Driver’s License Compact (IDLC)

The IDLC is an agreement entered into by 46 of the 50 states, with all but Georgia, Wisconsin, Michigan, and Tennessee signing on. The agreement’s purpose is to facilitate communication among the member states as to driving infractions committed by motorists from other states. Each member state has its own criteria for handling that information, but generally, one who commits a driving offense in another state is subject to consequences for that offense both in the state where they committed the offense and in their home state. A significant limitation is that one can only be punished in their home state for an offense committed out-of-state if their home state has a law defining an offense substantially similar to the offense they committed. 

Non-New York Motorists Accused and Convicted in New York

For non-New York motorists accused and convicted of a DWI in New York, NY Veh & Traf L § 516 (2019) provides that the State of New York would report such conviction to the licensing authority of the convicted motorist’s home state. If the motorist’s home state’s law provided for an offense substantially similar to the New York DWI offense for which the motorist is convicted, the licensing authority of the home state could levy penalties for the offense in addition to any penalties levied in New York. This typically involves the home state suspending or revoking the motorist’s license. 

New York Motorists Accused and Convicted Outside of New York

The same procedure applies for a New York motorist accused and convicted of a DWI offense in another state. The other state would, assuming it is party to the ILDC, report the conviction to the New York Department of Motor Vehicles, which would levy the appropriate penalties for the comparable New York offense, if such offense exists. 

New Jersey License Holders Accused in New York

As with the previous two categories of drivers, the IDLC governs how New Jersey will deal with a New York DWI charge and conviction. Upon conviction, New York will report the conviction to New Jersey’s Motor Vehicle Commission, which will sanction the convicted motorist with license suspension or revocation sanctions consistent with a New Jersey offense comparable to the New York DWI offense with which the motorist was convicted, if a comparable offense exists. The question of a comparable statute was the subject of a lawsuit whereby a New Jersey motorist challenged the State’s comparison of New York’s DWAI offense to N.J.S.A. 39:4-50(a). In Division of Motor Vehicles v. Lawrence, 194 N.J.Super. 1 (App. Div. 1983), a New Jersey appellate court upheld the State’s comparison, finding the New Jersey offense sufficiently similar to New York’s DWAI offense. New Jersey does permit motorists to request a hearing upon notice of reciprocal sanctions for an out-of-state DWI where they can challenge these sanctions.

For all three categories of motorists, it is important to attain the services of a qualified New York DWI attorney. Accused non-New York motorists and New Jersey license holders accused in New York should do everything in their power to contest their New York DWI prosecution to protect them from penalties both in New York and in their home states. New York motorists should seek counsel to help contest any administrative action arising from the New York Department Motor Vehicles’ treatment of an out-of-state DWI conviction.

Can and Should Someone Use a Public Defender?

Though it is preferable for one to retain the services of an attorney as soon as possible after an arrest for a DWI offense, drivers frequently do not have representation at their first court date, “the arraignment.” At the arraignment, a person will usually be informed by the judge that, as a criminal defendant, they have a right to an attorney and that if they cannot afford an attorney, the court will appoint one for them at the government’s expense. This attorney is commonly a public defender but can sometimes be a private attorney appointed by the court. Those who have not already secured representation by the time of their arraignment are faced with a question quite consequential to their case: should they seek out representation or accept the court-appointed attorney?

The first consideration is this: Although the Sixth Amendment to the U.S. Constitution affords defendants in criminal cases a right to be represented by an attorney, a person hoping to use a court-appointed attorney at the government’s expense must apply and qualify for one under New York’s indigency standards. Even if a person qualifies for court-appointed representation, there are a couple of key reasons why it is advisable to hire a private attorney instead.

First, despite many public defenders being qualified and competent, they usually have a heavy caseload. Consequently, defendants they represent will receive only a fraction of their attention. DWI cases require meticulous attention to detail, so it is not unheard of for DWI defendants’ cases to suffer where they are represented by a very busy public defender. 

Even those represented by a court-appointed private attorney may risk diminished quality in the treatment of their case. Though well-meaning, court-appointed private attorneys often allocate more resources and attention to their private clients, as they are woefully underpaid for representation of clients in their court-appointed capacities. 

A private attorney, on the other hand, will have a much more firm grasp on their caseload, which is customarily much smaller than that of a public defender. DWI defendants represented by a private attorney benefit immensely from the meticulous, individualized attention given to their case, and the resources in place to support them as they work toward the best possible outcome.

Second, a DWI case commonly involves two separate actions: a criminal case and an administrative case at the Department of Motor Vehicles. A court-appointed attorney can and will represent a defendant in the criminal portion but cannot and will not represent them in the administrative action. The administrative portion is rather consequential, as it is where the issues of license suspension and revocation are decided. Private attorneys are not only willing and able to represent a defendant in the administrative portion of their case, but quality attorneys prove incredibly adept at successfully navigating these hearings and ensuring any license suspension or revocation is minimal.

Frequently Asked Questions

Who Should I Contact if I’ve Been Arrested for a DWI?

No matter the circumstances, being accused of a first-time DWI offense is disconcerting for most. The stress for the accused and their friends and family is only compounded by the complexity of New York’s DWI laws and the uncertainty involved with being exposed to criminal liability. The most potent remedy for these troubles is attaining the representation of a practiced, diligent criminal DWI defense attorney, such as those at Rosenblum Law. At each step in a DWI case, defendants have opportunities for leniency and justice. Whether one has been unfairly accused or made an honest mistake, the DWI defense attorneys at Rosenblum Law are steadfast in their commitment to protecting client’s rights and fighting for the best possible outcome.