Read about DWI and DWAI law in New York and the administrative and criminal penalties of a conviction.

New York DWI Law

Here are some important facts about DWI law in New York.

Updated March 16, 2016

In New York, you can get a DWI (driving while intoxicated), sometimes called a DUI (driving under the influence), if you operate a vehicle with a blood alcohol concentration (BAC) of.08% or higher, regardless of whether your driving ability was actually impaired. However, you can also get a DWI for operating a vehicle while impaired by alcohol to a “substantial extent.” And you can be convicted of a less serious offense called a DWAI (driving while ability impaired) if—as the result of ingesting alcohol, drugs, or a combination—your ability to operate a vehicle as a “reasonable and prudent” driver has been impaired to “any extent.”

(The penalties for a DWAI involving only alcohol are less than those for a DWAI that involves drugs or a combination of drugs and alcohol.)

While most DWIs involve driving, it’s possible to get a DWI in New York without actually moving your vehicle. For instance, you might be culpable for DWI if (while under the influence) you get into your car and start the engine—driving isn’t required.

And New York law says that if you’re driving a vehicle, you’ve given consent to submit to a chemical test for the purpose of determining the amount of alcohol or drugs in your blood. Here are some details on the consequences of refusing to take a chemical test in New York and other details about New York DWI law.

In New York, what are the consequences of refusing to take a chemical test (usually a breathalyzer or blood test) when suspected of DWI?

Here are the consequences for not taking a breathalyzer or blood test in New York, broken out by whether this is your first, second, or third offense:

1st offense

2nd offense

3rd offense

1-year license suspension

18-month license suspension with a prior refusal or DWI conviction within the past 5 years

18-month license suspension with a prior refusal or DWI conviction within the past 5 years

 

If you refuse to submit to chemical testing and—within the past four years—you’ve had two refusals, two DWI convictions, or one refusal and one conviction, your license can be permanently revoked.

In New York, when do police have to measure your BAC?

In New York, law enforcement officers are supposed to measure your BAC within two hours of whichever happens later:

However, prosecutors might be able to prove your culpability for DWI even if your BAC is taken later than this time.

What is the maximum BAC for drivers under 21 in New York?

New York law prohibits drivers who are under 21 year old from driving with a BAC of .02% or more. Underage drivers who operate a vehicle with a BAC of .02% or more (and not more than .07%) face a six-month license suspension.

What are the minimum jail times for a DWI in New York?

Here are the minimum jail times for a DWI in New York, broken out by whether this is your first, second, or third offense:

1st offense

2nd offense

3rd offense

No minimum jail time required

5 days jail or 30 days community service if prior DWI within past 5 years

10 days jail or 60 days community service if two prior DWIs within past 5 years

 

Generally, New York law doesn’t require minimum jails sentences for first, second, and third DWAI offenses.

How long will prior DWI convictions remain relevant for sentencing purposes in New York?

For most sentencing purposes, a prior DWI/DUI conviction stays on your record (and can be counted against when you’re being sentenced on a new DWI) for ten years. However, New York has multiple “look back” periods. Depending on the situation, this period could be four, five, ten, or 25 years.

Can a DWI be “pleaded down” to a "wet reckless" in New York?

In some states, it’s possible for a defendant to negotiate a "wet reckless," or a conviction of reckless driving involving alcohol, by plea bargaining down a DWI/DUI to a reckless driving charge. 

However, New York law restricts plea bargaining in DWI cases. Typically, if you’re charged with a DWI, the best plea bargain that’s allowed is for a DWAI; plea bargaining for a wet reckless generally isn’t an option.

If you are interested in contacting a DWI lawyer for help, you can find a DWI lawyer in your area in Nolo's Lawyer Directory.

Are ignition interlock devices (IIDs) required for convicted DWI offenders in New York?

New York law requires all drivers convicted of DWIs (including those convicted of first-offense DWIs) to install IIDs on their vehicles as a condition of probation or conditional discharge. But for drivers convicted of DWAI offenses, IIDs aren’t required.

Where can I get more information about DWI laws in New York?

Nolo's DUI/DWI topic has many helpful articles, including a Drunk Driving, DUI, and DWI FAQ. For more help after a DWI arrest, see Nolo's Lawyer Directory, where you can view in-depth profiles of New York DWI attorneys in your area.

 

Talk to a DUI Lawyer

Start here to find lawyers near you.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys
NOLO2:DRU1.6.8.11.20160427.37128