What is a DWI?

In New York, the Driving While Intoxicated statute contains 4 separate offenses:

The first offense is Driving While Ability Impaired ("DWAI"). This offense is committed where the driver has consumed alcohol to the extent that he "has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625 (1979). DWAI is a traffic infraction, not a crime. DWAI is an offense to which the more serious charge of Driving While Intoxicated is often reduced.

The second offense is Driving While Intoxicated; Per Se. This offense deals with operating a motor vehicle with a specific blood alcohol concentration. In New York, it is DWI per se to operate a motor vehicle while you have .08% or more by weight of alcohol in your blood.

The third offense is Driving While Intoxicated ("DWI"). You can be charged with DWI regardless of whether there is a chemical test result (for example, if you refused to submit to a chemical test). The legal standard for DWI is that "the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver". People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625 (1979).

The fourth offense deals with operating a motor vehicle while your ability is impaired by drugs ("DWAI Drugs"). While DWAI Alcohol is a traffic infraction, DWAI Drugs is a crime. The legal standard for DWAI Drugs, however, is the same as that of DWAI Alcohol. Specifically, a person is guilty of DWAI Drugs when the driver has consumed drugs to the extent that he has "actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, (1979).

In addition to these basic offenses, New York has additional DWI provisions which apply to commercial motor vehicles. For example, Commercial DWAI is committed when a person operates a commercial motor vehicle while having a blood alcohol concentration of .04% or more, but not more than .06%.

The operation of a commercial motor vehicle with a blood alcohol concentration of more than .06% is a crime. Go to our Commercial Driver's License page

As with any criminal charge, the State bears the burden of proving the charge against you. Because of an increased political and public intolerance towards those who drink and drive, however, defending a DWI charge has become more complicated, and the penalties upon conviction have become more severe.