New York Driving While Intoxicated Criminal Defense

In New York state, vehicular Driving While Intoxicated Crimes are prosecuted under the New York Vehicle and Traffic Law (called “VTL”). Specifically, DWIs are listed in Section 1192, which contains a few different DWI charges.

Operating a Motor Vehicle While Ability Impaired (VTL 1192.1)  

This charge has two elements:

  1. Operating a motor vehicle,
  2. While ability is impaired by the consumption of alcohol.

Importantly, your blood alcohol content is between .05 and .07, you can be charged with a DWAI. That is even though New York’s BAC limit is .08

VTL 1192.1 is commonly referred to as “DWAI” or simply as “impaired.” This charge is a violation. Although DWAIs usually resolve themselves without any jail time, a judge can sentence someone up to 15 days jail.

New York York DWI laws have special definitions of terms, which are located in Article 1 of the New York Vehicle and Traffic Law.

What is a Vehicle Under New York DWI Laws?

A vehicle is defined as a device that can transport a person, or property. However, devices that are moved by human power or used exclusively on rails are excluded from this definition.

Thus, the following are not vehicles and thus not subject to DWI laws:

  1. Trains
  2. Bicycles
  3. Subways

What is a Motor vehicle Under New York DWI Laws?

Definition of a Motor Vehicle is located in Section 125 of the Vehicle and Traffic Law. Specifically, it includes every vehicle on a public road, which is not propelled by muscular power. It is also important to know that electrically powered mobility assistance devices for people with disabilities are not motor vehicles.

As the definition of a motor vehicle is very broad, you can be charged with a New York DWI for driving:

  • a car
  • a motorcycle
  • a boat
  • a golf cart
  • and even a children’s electric car

DWI no Driving Required

DWI charges do not require “driving,” as we typically think of that word. “Operation” of a motor vehicle is defined as driving. However, it is important to note that operation is also defined as:

sitting behind the wheel of a motor vehicle for the purpose of driving when the vehicle is moving, or even just when the engine is running

Therefore, if you get in your car and are about to put the keys in the ignition, you are driving under the VTL definition. That is because you have the intent to drive. However, if you get into a fight with your spouse and decide to sleep in the car, that is not driving. The difference is lack of intent to drive.

Driving While Intoxicated; Per Se (VTL 1192.2)

Unlike the impairment DWI under 1192.1, DWI under 1192.2 requires a specific Blood Alcohol Content. Specifically, the statute has the following elements:

  1. Operating of a motor vehicle, AND
  2. Blood Alcohol content of .08 or higher.

BAC of .08 is equivalent to approximately 3-4 drinks back to back. A blood or breath sample is needed to conduct this test. Importantly, when you’re asked to take a breath test, either on the side of the road at the the precinct, you should refuse.

This charge is a considered an “Unclassified Misdemeanor,” and can be punishable by up to 1 year in prison. It is important to note that this charge does not require any impairment.

Aggravated Driving While Intoxicated ( VTL 1192.2-a)

New York Aggravated Driving While Intoxicated, VTL 1192.2-a, includes two separate charges:

  1. Aggravated Driving While Intoxicated Per Se (VTL 1192.2-a(a)); AND
  2. Leandra’s Law DWI ( VTL 1192.2a-(b))

Aggravated Driving While Intoxicated Per Se (VTL 1192.2-a(a))

Aggravated Driving While Intoxicated Per Se, has the following elements:

  1. Operating of a motor vehicle, AND
  2. Blood alcohol content of .18 or higher.

BAC content of .18 is about 7-9 drinks back to back. Surprisingly, it is still a misdemeanor for first offenders. As such, the maximum jail time is up to one year.

Leandra’s Law DWI ( VTL 1192.2a-(b))

Leandra’s Law is named after 11-year old Leandra Rosado who passed away in a drunk driving accident on the Henry Hudson Parkway in New York City in 2009. This law is also called Child Passenger Protection Act. It increased the criminal penalties for DUI/DWAI Drugs/DWAI Drugs and Alcohol, with a child under the age of 16 in the car.

These are the elements of a Leandra’s Law DWI:

  1. Operating a motor vehicle,
  2. While intoxicated, AND
  3. A child age 15 or younger in the car.

A Leandra’s Law DWI is a Class “E” felony. As such, it is punishable by up to 4 years in prison. However, if the child is seriously injured, Leandra’s Law DWI becomes a Class “C” felony. Thus, the maximum punishment is 7 years in prison. Additionally, if the child dies as, the charge becomes a Class “B” Felony. This charge has a 25 year maximum prison term.

Driving While Intoxicated (VTL 1192.3)

This charge is similar to Driving While Intoxicated Per Se, VTL 1192.2 (above). However, there is no requirement for a specific BAC. Rather the elements are:

  1. Operating of a motor vehicle, AND
  2. Doing so in an intoxicated condition.

“Intoxicated condition” is when “a person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order operative a vehicle as a reasonable and prudent driver.”

This charge is also an unclassified misdemeanor and as such, it is punishable by up to 1 year in prison. Oftentimes, 1192.3 cases do not involve jail time, especially if there was no car accident.

Driving While Ability Impaired By Drugs (VTL 1192.4)

Under VTL. 1192.4, Driving While Ability Impaired by Drugs has two elements:

  1. Operating a motor vehicle, AND
  2. Ability is impaired by drugs

The definition of “drugs” comes from New York Public Health Law Section 3306 and includes all five of New York’s controlled substances schedules. Here is the full list of drugs for the purposes of VTL 1192.4. 

DWAI Drug cases are very tough to prove for the prosecutor without a sample of your blood or urine. DO NOT consent when the police ask to give them a sample. Ask for an attorney instead!

Additionally, it is important that you do not make any statements regarding taking any drugs or medication. Ask for an attorney instead!

Much like most of the other charges in VTL 1192, VTL 1192.4 is an unclassified misdemeanor. As such, the maximum is 1 year in jail.

Driving While Ability Impaired by the Combination of drugs and alcohol (VTL 1192.4a)

  1. Operating a motor vehicle, AND
  2. Ability impaired by a combination of drugs and alcohol.

Similarly, VTL 1192.4 is an unclassified misdemeanor. As such, the maximum is 1 year in jail.

What is Required to Prove Impairment and Intoxication?

Impairment requires that the consumption of alcohol or drugs, has impaired to any extent the person’s physical and mental abilities a reasonable and prudent person is expected to possess for driving.

On the other hand, Intoxication requires impairment to a substantial extent.

There is no specific test that the prosecutor needs to convict someone of DWI/DWAI. It should be noted, that both VTL 1192.2 and 1192.2(a) require a breath or blood test to prove BAC above a certain limit.

In general, the juries can consider these factors to decide if someone was intoxicated or impaired by alcohol, or drugs:

  1. Physical condition and appearance
  2. Balance and coordination
  3. Manner of speech
  4. Presence or absence of odor of alcohol
  5. Whether an accident was caused and circumstances of arrested
  6. Result of any physical coordination or BAC test
  7. Officer’s opinion regarding the individual’s sobriety

Federal Court DWI

In limited circumstances, DWIs can be prosecuted in Federal Court. This happens when DWIs happen on federal land.

Consult an Experienced DWI Attorney Today

It is important to remember that your DWI case may result in you a loss of your license, thousands of dollars in fines, installation of an ignition interlock and having to go to alcohol and drug education programs. Please call us at 212-729-9494 or contact us and our knowledgeable New York DWI Attorneys today for a consultation regarding your case.