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First Time DWI NY

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Written By 
Last updated 
September 9, 2021
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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.


§ 1192(1) - Driving While Ability Impaired by Alcohol 

Operating a motor vehicle while one’s ability to operate such a motor vehicle is impaired by alcohol. This offense is characterized as applying where one’s blood alcohol content (“BAC”) is more than .05% but less than .07%. 

Offense Details:

  • V&T Code: § 1192(1)
  • Designation: Traffic Infraction

Penalties:

  • Fine: Min = $300; Max = $500 
  • Jail Time max: 15 days
  • License suspension: 90 days
  • Registration suspension: up to 90 days 
  • Driver responsibility assessment fee: $250 (for 3 years)
  • Crime victim assistance fee: $25 
  • Attend a victim impact program
§ 1192(4) - Driving While Ability Impaired by Drugs 

Operating a motor vehicle while one’s ability to operate such a motor vehicle is impaired by drugs. “Drugs” include all of the controlled substances listed in NY Pub Health L § 3306 (2019).

Offense Details:

Penalties:

  • Fine: Min = $500; Max = $1,000 
  • Jail Time max: 1 year
  • License revocation: 6 months
  • Registration suspension: minimum of 6 months 
  • Driver responsibility assessment fee: $250 (for 3 years) 
  • Crime victim assistance fee: $25 
  • Misdemeanor surcharge: $175
  • Attend a victim impact program
§ 1192(4-a) - Driving While Ability Impaired by Combined Influence of Drugs and Alcohol 

Operating a motor vehicle while one’s ability to operate such a motor vehicle is impaired by influence of multiple drugs or the influence of both drugs and alcohol.

Offense Details:

Penalties:

  • Fine: Min = $500; Max = $1,000 
  • Jail Time max: 1 year
  • License revocation: 6 months
  • Registration suspension: minimum of 6 months 
  • Driver responsibility assessment fee: $250 (for 3 years) 
  • Crime victim assistance fee: $25 
  • Misdemeanor surcharge: $175
  • Attend a victim impact program
§ 1192(2) - Driving While Intoxicated, per se

Operating a motor vehicle with a BAC of .08% or greater.

Offense Details:

Penalties:

  • Fine: Min = $500; Max = $1,000 
  • Jail Time max: 1 year
  • License revocation: 6 months
  • Registration suspension: minimum of 6 months 
  • Driver responsibility assessment fee: $250 (for 3 years) 
  • Crime victim assistance fee: $25 
  • Misdemeanor surcharge: $175
  • Attend a victim impact program
  • Ignition interlock device required: minimum of 1 year
§ 1192(3) - Driving While Intoxicated (Common Law DWI)

Operating a motor vehicle while in an intoxicated condition. It is also known as a “common law DWI.”  It customarily involves one who refused a chemical BAC test, thus forcing the State to prove intoxication by other means, such as the field sobriety test results and the officer’s impressions of the driver’s state. It has been interpreted by courts to apply only where one is intoxicated by alcohol. 

Offense Details:

Penalties:

  • Fine: Min = $500; Max = $1,000 
  • Jail Time max: 1 year
  • License revocation: 6 months
  • Registration suspension: minimum of 6 months 
  • Driver responsibility assessment fee: $250 (for 3 years) 
  • Crime victim assistance fee: $25 
  • Misdemeanor surcharge: $175
  • Attend a victim impact program
  • Ignition interlock device required: minimum of 1 year
§ 1192(2-a)(a) - Aggravated DWI, per se

Operating a motor vehicle with a BAC of .18% or greater.

Offense Details:

Penalties:

  • Fine: Min = $1,000; Max = $2,500 
  • Jail Time max: 1 year
  • License revocation: minimum of 1 year
  • Registration suspension: minimum of 1 year 
  • Driver responsibility assessment fee: $250 (for 3 years) 
  • Crime victim assistance fee: $25 
  • Misdemeanor surcharge: $175
  • Attend a victim impact program
  • Ignition interlock device required: minimum of 1 year
  • Formal assessment for alcohol/drug dependency, with possible required treatment
§ 1192(2-a)(b) - Aggravated DWI, with a Child

Operating a motor vehicle while intoxicated by alcohol or drugs while a passenger of such vehicle is a child fifteen years or younger. Intoxication by alcohol or drugs here includes driving while ability impaired by drugs, driving while ability impaired by combination of drugs or drugs and alcohol, driving while intoxicated, per se, and driving while intoxicated (common law DWI).

Offense Details:

Penalties:

  • Fine: Min = $1,000; Max = $5,000 
  • Jail Time: min = 1 year; max = 4 years
  • License revocation: minimum of 1 year 
  • Registration suspension: minimum of 1 year 
  • Driver responsibility assessment fee: $250 (for 3 years) 
  • Crime victim assistance fee: $25 
  • Felony surcharge: $300
  • Attend a victim impact program
  • Ignition interlock device required: minimum of 1 year
  • If BAC less than 0.15%: mandatory screening for substance abuse and dependency
  • If BAC more than 0.15%: formal assessment for alcohol/drug dependency, with possible required treatment

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.

graphic DWI DUI
1. Traffic Stop/Arrest

A DWI arrest typically begins with a traffic stop, which can be a traditional stop or a DUI checkpoint. In any case, an officer is permitted by law to conduct a traffic stop when the officer has a reasonable suspicion that an infraction or crime has been committed, also known as “probable cause.” In the DWI context, the officer will typically pull a person over for having committed a traffic infraction, such as running a stop sign, or if that person is driving erratically. The traffic stop typically consists of the officer asking questions and, if the officer believes the driver might be under the influence of drugs or alcohol, a field sobriety test and/or a preliminary BAC test using a portable breathalyzer. If any of these investigatory techniques leads the officer to believe the driver has run afoul of any of New York’s DWI offenses, the driver will be arrested.

2. Post-arrest

Once arrested for a DWI offense, a person is taken to the police station where they are booked into the system and held in custody while the police officer completes various procedural tasks, mainly paperwork. While in custody, the accused will likely be asked to take a BAC test, which can be administered by taking a sample of one’s breath, blood, urine, or saliva. Drivers are technically permitted to refuse to submit to BAC testing, though not without consequence. 

New York has “implied consent” laws naming driving as a privilege and proclaiming that New York motorists, by registering as motorists in New York, impliedly consent to taking a BAC test when an officer has probable cause to believe one is driving while intoxicated and requests such a test. Consequently, refusal to submit to a BAC test can trigger various penalties, including suspension of one’s license until a DMV hearing where a finding that the BAC test was refused unlawfully can result in a minimum one-year revocation of one’s license, as well as hefty fines.

Once the officer has completed the necessary paperwork, either the officer will set a bail amount, which must be paid before the accused driver can be released, or the driver will be “arraigned” (discussed in the next subsection) at a court hearing where bail will be set and the driver will be asked to state whether they plead guilty or not guilty to their DWI charge. If the officer sets a bail amount and the driver is bailed out, they will receive notice of their first court date, their “arraignment,” before being released. If the officer sets a bail amount and the driver is not bailed out, they will remain in police custody.

3. Arraignment

An arraignment is the first hearing after one is charged with a criminal offense. It typically occurs within 24 hours of the arrest. The hearing’s purpose is to read the formal charges, meaning what the driver (now the “defendant”) is being accused of, and to give the driver/defendant the opportunity to “enter a plea,” meaning to state whether they believe themselves guilty or not guilty of the offense. If the driver pleads guilty, the judge will likely set a sentencing hearing for a later date. If the driver pleads not guilty, the judge will set a trial date or a date for a pre-trial hearing.

At the arraignment, the judge will also set a bail amount if bail was not already set previously by the arresting officer. Finally, the accused driver’s license will be temporarily suspended pending an administrative hearing at the Department of Motor Vehicles.

4. Pre-trial Conference

At a pre-trial conference, the defendant’s attorney has the opportunity to negotiate a “plea bargain” with the District Attorney, who will be prosecuting the case. A plea bargain is where one’s attorney can agree that their client will plead guilty, typically to a less severe offense, in exchange for lighter penalties than what their client would be subject to in the event they lost at trial. A person charged with DWI is not required to seek a plea bargain but simply has that option.

5. Pre-trial Hearings

If a plea bargain deal is not reached at the pre-trial conference stage, there can be various types of hearings held prior to the beginning of the actual trial. The pre-trial hearing customarily most critical to one’s defense is a “suppression hearing.” At a suppression hearing, the defense attorney’s aim is to have the court exclude evidence from consideration at trial. Evidence is typically excluded, or “suppressed,” when it is shown to have been obtained illegally.

6. Trial

If one does not plead guilty to the DWI offense of which they’ve been accused and does not reach a plea bargain at the pre-trial conference stage, the case will go to trial. Both the prosecution and defense present their respective cases and the accused DWI driver is found to be innocent or guilty. 

There are two types of trials: a bench trial and a jury trial. In a bench trial, the judge plays the role of the jury and decides whether the weight of the evidence proves beyond a reasonable doubt that the accused driver is guilty. As the name suggests, a jury trial features a jury as the decider of guilt or innocence. If one’s DWI offense is classified as a misdemeanor, a jury in a jury trial will consist of six jurors. If the charged DWI offense is a felony, the jury will consist of 12 jurors. 

The burden of proof at trial rests with the prosecution. Simply put, the State has the responsibility of proving to the judge or jury beyond a reasonable doubt that the accused driver is guilty of the DWI offense in order to secure a conviction. The defense, the accused driver’s attorney, has the opportunity at trial to demonstrate to the judge or jury that the prosecution’s evidence is questionable and that the accused driver is innocent.

7. Sentencing

When one pleads guilty to their DWI offense, reaches a plea bargain, or is found guilty at trial, they will usually receive their penalty at a sentencing hearing. At this stage, one’s attorney can advocate for a lesser sentence, assuming they have not accepted a plea bargain. The only time one will not have a sentencing hearing, generally, is if they are found not guilty at trial.

Throughout the multiple stages of one’s DWI case, it is paramount that they are represented by a qualified, capable attorney. Criminal law proceedings are exceedingly complicated. It takes an exceptionally talented attorney to successfully navigate these proceedings and protect their client’s interests at every step.

How to Get a DWI Dismissed

lawyer client dui dwi

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.

It’s next useful to consider the proper legal context, namely the concept of “burden of proof.” The State is responsible when prosecuting a DWI charge for proving beyond a reasonable doubt that the accused driver is guilty of the offense. The accused is not responsible for proving their innocence. The task in defending against a DWI charge is one of casting doubt on the State’s case.

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

insurance policy

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?

public defender NY dwi

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

Is there a difference between a DUI and a DWI?

No. Different states use different names and acronyms for the offense of operating a motor vehicle while impaired by alcohol or drugs. Some states employ the term “driving under the influence” or “DUI.” New York opts for “driving while intoxicated” or “DWI.” New York’s comprehensive DWI scheme features various types of DWI offenses, each with its own distinct acronym. For example, a “DWAI” in New York is “driving while ability impaired.”

What is the difference between a DWI and a DWAI in New York?

DWI is a crime, DWAI is not. A plea bargain to DWAI can often be negotiated by a defendant’s lawyer in a DWI case, depending on the severity of the charges and the person’s driving record.

Is a DWI a felony in New York?

It can be. In New York, most types of DWI offenses, when committed for the first time, constitute a misdemeanor offense. The only New York DWI offense for which a first-time offender is subject to a felony charge is “aggravated driving while intoxicated, with a child,” a class E felony defined as driving while intoxicated by alcohol or drugs with a child passenger aged fifteen years or younger. Repeat DWI offenders can also be subject to felony charges.

Is a DWI a misdemeanor in New York?

Of New York’s seven types of DWI offenses, five are misdemeanors, while the remaining two include a traffic infraction and a Class E felony. Whether one’s DWI conviction is for a traffic infraction, misdemeanor, or felony depends primarily on the offense with which they are charged and whether their attorney is able to negotiate their charge down to a lesser offense in what is known as a “plea bargain.”

Can a first-time DWI be dismissed in New York?

Yes. Though not very common, it is possible for a first-time DWI to be dismissed in New York. The reason for dismissal, however, is not grounded in leniency for a first-time offender. Dismissals typically occur where the police have insufficient evidence to establish the elements of the offense or for other procedural reasons. A more common scenario for a first-time offender is a judge being lenient at the sentencing stage, if the offender is convicted, or the offender’s attorney negotiating a plea bargain involving a less serious charge.

Can a DWI be reduced in New York?

Yes, but not always. There are two primary ways in which a DWI can be reduced in New York: prosecutorial discretion and plea bargaining. Prosecutorial discretion means the prosecutor choosing to prosecute one for a lesser charge. This frequently happens where the prosecutor realizes they don’t have sufficient evidence to achieve a conviction for some more severe DWI charges, so they instead choose to prosecute the lesser charges which they feel they can confidently prove. Plea bargaining is a process by which one’s attorney attempts to negotiate a deal with the prosecutor whereby the accused can plead guilty of a lesser offense than the one with which they are charged. Accepting a plea involves waiving one’s right to a trial; this is the tradeoff. Criminal cases are frequently resolved by plea bargains.

Is jail time mandatory for a first-time DWI in New York?

No. None of New York’s DWI offenses requires a court to order jail time at the sentencing stage for a first-time offense. Jail time is, however, on the table for each of New York’s DWI offenses. Leniency from the judge is typically achieved by one’s attorney effectively advocating for lighter sentencing or negotiating a favorable plea bargain with the prosecutor. 

Do you lose your license for a first-time DWI in New York?

Yes. Whether one is just charged with a DWI or is charged and convicted, they will most likely lose their license for at least some period of time. With respect to a conviction, New York’s state law requires a minimum term of license suspension or revocation for a first time DWI offense, no matter the type of DWI committed. Even one charged and acquitted of a DWI offense in New York will likely have had their license suspended. One accused of a DWI offense typically has their license suspended at their arraignment pending an administrative hearing at the Department of Motor Vehicles.

How many points get put on your license for a first time DWI in New York?

Zero. A DWI conviction in New York does not result in points on one’s license.

How long does a first-time DWI conviction stay on one’s record?

A first-time DWI conviction remains on one’s driving record for 15 years from the date of conviction, while a first-time DWAI conviction remains for ten years from conviction.

Can a DWI conviction be expunged in New York?

No. New York’s state law does not permit a DWI conviction to be expunged. Expungement means erasing something from one’s criminal record. DWI offenses are among the few criminal offenses in New York that are not eligible for expungement. Consequently, a DWI conviction will remain on one’s criminal record for life.

How does a DWI charge or conviction affect one’s employment?

A DWI charge and/or conviction can affect one’s employment in a multitude of significant ways. One such way is the collateral impact of license suspension or revocation. Having a suspended or revoked license can impact one’s ability to travel to work as well as one’s ability to obtain and maintain employment that involves driving as a job function. Further, a DWI conviction can be viewed by a job through driving record and criminal background checks. Convictions for all of New York’s DWI offenses impart a criminal record except for a DWAI, which is classified as a traffic infraction.

Can you be a teacher with a DWI in New York?

Yes, though it is complicated. Technically, there is no law prohibiting people charged and/or convicted with a DWI in New York from becoming or remaining teachers. However, a DWI can complicate things. Schools are committed to the safety and welfare of the children and are often under immense pressure from parents. Consequently, schools might be reluctant to hire someone with a DWI conviction as a teacher and might be inclined to terminate the employment of teachers convicted of a DWI offense. Employment in New York is “at-will,” meaning employers can terminate employees for no reason at all or for any reason that is not illegal.


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.

Author Bio

Adam H. Rosenblum

Founding Attorney Of Rosenblum Law

Adam H. Rosenblum is an experienced and skilled traffic violations and criminal defense attorney. Mr. Rosenblum provides expert and aggressive representation to those facing points on their drivers’ licenses and the associated fines and surcharges.

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