A DUI is a serious offense, but a felony DUI can be a devastating blow to your livelihood, your character, your life. A felony comes with serious penalties like prison time, fines, lengthy license suspension or revocation, and probation. 

But when your prison term is up, the fines are paid, you get your license back, and your probation has ended, it still isn’t over. A felony DUI can stay on your record for years. It can impact many aspects of your life:

  • Your employment prospects will be limited
  • Loss of pilot’s license
  • Lose your right to vote
  • Loss of your CDL license
  • Your vehicle will be towed and impounded
  • Denial or delay of your green card or U.S. citizenship application
  • Health insurance premium increases
  • Difficulty renting a vehicle
  • Loss of ability to drive a fleet car for your company or a company vehicle

Every state in the United States has DUI laws. New York’s DUI laws are very strict and the penalties for a DUI in New York are severe. Federal laws also prohibit DUI and can mean time in federal prison, fines, and more.

If you’ve been charged with a DUI, you need a criminal defense attorney who will go to bat for you. They can help you get a lesser sentence or may even get the charges dropped. But you don’t even have a chance if you don’t have good representation.

Get a lawyer before you do anything else.


New York and Federal law have distinct definitions for charges that are related to DUI. Understanding what each term means can help you better understand the charges against you. This is serious. 

The distinction between the charges and their seriousness of them is determined by the blood alcohol content (BAC) of the driver, as well as other factors. The jurisdiction where the offense occurred also determines what the charge is called. For instance, New York uses the term DWI while the federal government uses the term DUI.

The most common terms for DUI include:

  • DWAI – Driving While Ability Impaired – This is typically a less serious charge than a DWI or DUI and covers alcohol or drugs that cause impairment. However, it can be more serious, especially if someone was injured or killed in an accident where the driver was DWAI. 
    • BAC Under 0.08%
      • The driver was still impaired by the alcohol and/or drugs “to any extent”
  • DWI – Driving While Intoxicated – This is usually specifically related to cases where the driver is impaired by alcohol.
    • BAC – 0.08% or higher (New York’s legal limit)
  • DUI – Driving Under the Influence – This broad term includes not only cases that involve a driver impaired by alcohol, but also by other substances such as heroin, marijuana, and even certain prescriptions drugs like hydrocodone and oxycodone. DUI is a common umbrella term and the terms DWI and DWAI can fit under it. 
    • BAC – 0.08% or greater (New York’s legal limit)

It is also important to mention that it is possible to get a DUI without actually driving your vehicle. If you turn on your engine or even just sit in the driver’s seat with the intention of operating the vehicle while you are under the influence, you could get charged.

What Makes a DUI a Felony?

There is a difference between a misdemeanor DUI and a felony DUI, but it can be a fine line. Several factors will bump up a DUI charge from a misdemeanor to a felony:

  • A high BAC
  • Prior DUI convictions
  • Serious injury or death resulting from an accident that was caused by the defendant’s impairment
  • The defendant had children in the car when they were driving under the influence

These factors may vary from state to state, but these are fairly universal and apply in New York and in Federal DUI cases.

Federal Felony DUI Law

The Federal law that applies to a Federal DUI depends on where the incident occurred. There is no federal statute that addresses DUI, but there are two legal authorities that provide guidance for identifying DUI, prosecuting it, and the penalties attached.

A DUI that occurs in a National Park is governed by the Code of Federal Regulations. 

All other Federal DUI offenses are governed by the Assimilative Crimes Act. The ACA was passed to provide guidance on charging, prosecuting, and penalizing for a crime that is committed on federal property, but federal law has no applicable statute. In such cases, the offense is addressed according to state law.

The federal property includes:

  • Airports
  • Historical monuments
  • Military bases and forts
  • National parks
  • National monuments
  • Courthouses and associated grounds
  • National forests

Commercial Drivers and DUI

Commercial drivers are held to a higher standard when it comes to DUI, and they can face much harsher penalties for driving under the influence. They may even face federal criminal charges if they get behind the wheel of a commercial vehicle while under the influence of alcohol and/or drugs.

Federal laws that govern common carriers and DUI are found in 18 U.S. Code Chapter 17A. Within this chapter there are three statutes that address DUI:

  • 18 U.S. Code Section 341Definitions
    • As used in this chapter, the term “common carrier” means a locomotive, a rail carrier, a sleeping car carrier, a bus transporting passengers in interstate commerce, a water common carrier, and an air common carrier.
  • 18 U.S. Code Section 342Operation of a common carrier under the influence of alcohol or drugs
    • Whoever operates or directs the operation of a common carrier while under the influence of alcohol or any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), shall be imprisoned not more than fifteen years or fined under this title, or both.
  • 18 U.S. Code Section 343Presumptions
    • (1) an individual with a blood alcohol content of .10 percent or more shall be presumed to be under the influence of alcohol; and
    • (2) an individual shall be presumed to be under the influence of drugs if the quantity of the drug in the system of the individual would be sufficient to impair the perception, mental processes, or motor functions of the average individual.

Controlled substances under this statute are any substances that include in the Federal Controlled Substances Act Section 102. This includes recreational drugs as well as common narcotics.

CFR Section § 383.5 – Commercial Driver’s License Standards; Requirements and Penalties

  • If the person gets a DUI for a BAC of 0.04% while driving a commercial vehicle but not on duty, they are still subject to the law and can be disqualified.
  • While §383.51 only pertains to offenses that occur while the defendant is operating a commercial vehicle, they could still be disqualified if the state where the offense occurred has stricter laws that apply to DUI in a personal vehicle.
  • If the person gets a DUI in their personal vehicle for an open container and the state where the offense occurred has laws that make it a DUI, then the driver is still held to §383.51 and is disqualified for one year if it is the first offense.

49 CFR §391.15: Disqualification of Drivers

A driver can be disqualified from driving a commercial motor vehicle if he drives with a blood alcohol concentration of 0.04 or more, drives under the influence of drugs, commits a felony involving a commercial motor vehicle, leaves the scene of an accident while driving a commercial motor vehicle, transports, possesses, or unlawfully uses drugs, refuses to undergo alcohol testing, or fails to notify his employer of a suspended, revoked, or withdrawn permit or privilege to operate a commercial motor vehicle before the end of the business day post-revocation.

New York Felony DUI Laws

New York laws use the terms DWI and DWAI. The penalties can be very severe. Under the Vehicle Traffic Law – Alcohol / Drug Violations there are several violations that are felonies:

  • Second A-DWI in 10 Years – Class E Felony
  • Third A-DWI in 10 years – Class D Felony
  • Second DWI/DWAI-Drug violation in 10 years – Class E Felony
  • Third DWI/DWAI-Drug violation in 10 years – Class D Felony
  • Second DWAI/Combination in 10 years – Class E Felony
  • Third DWAI/Combination in 10 years – Class D Felony

Drivers who are charged with Aggravated DWI are charged with felonies for their second and third offenses.

Under state law, the alcohol and drug offenses in New York include:

  • DWI
    • BAC 0.08% or higher, or
    • Other evidence that the person is intoxicated
  • DWI – Commercial Drivers
    • BAC 0.04% or higher, or
    • Other evidence that the person is intoxicated
  • Aggravated DWI
    • BAC 0.18% or higher
  • DWAI/Alcohol
    • BAC higher than 0.05% but less than 0.07%, or
    • Other evidence that the person is intoxicated
  • DWAI/Drug
  • DWAI Combination

Federal Felony DUI Penalties

A federal DUI that was not in a National Park is subject to the laws of the state where it occurred. For instance, if a person gets a DUI on federal property in New York, then the case will be prosecuted under New York’s DUI laws.

If the DUI is a second or third offense, the penalties are more severe. This is also the case if there is a child in the car when the intoxicated driver is stopped.

Drivers convicted of a federal felony DUI can lose their license for up to eighteen months, or it can be revoked indefinitely. Additionally, they can be required to pay fines of up to $10,000 and spend up to seven years in prison.

New York Felony DUI Penalties

New York law lays out severe penalties for DWI and DWAI felony charges. These include:

  • Second Offense DWI
    • BAC 0.02% – 0.07%
      • Maximum fine $750
      • Maximum 30 days in jail
      • Revocation of license 6 months
    • BAC 0.08% – 0.17%
      • Maximum fine $5,000
      • Maximum 4 years in prison
      • Revocation of license 1 year
    • BAC 0.18% or higher
      • Maximum fine $5,000
      • Maximum 4 years in prison
      • Revocation of license 18 months
  • Third Offense DWI
    • BAC 0.02% – 0.07%
      • Maximum fine $1,500
      • Maximum 180 days in jail
      • Revocation of license 6 months
    • BAC 0.08% – 0.17%
      • Maximum fine $10,000
      • Maximum 7 years in prison
      • Revocation of license 1 year
    • BAC 0.18% or higher
      • Maximum fine $10,000
      • Maximum 7 years in prison
      • Revocation of license 18 months

DUI Probation, Drug and Alcohol Treatment, and Ignition Interlock Device

In addition to the penalties for DWI and DWAI, the judge may order the defendant to:

  • Install an ignition interlock device on their car
  • Probation
  • Complete a drug and alcohol treatment program
  • Attend a victim impact program
  • Pay restitution

The ignition interlock device is a requirement under New York law for DWI penalties. An ignition interlock device is a breathalyzer machine that is attached to the car’s ignition system. The car will not start unless the driver blows into the device. If there is alcohol detected, the vehicle will not start. The defendant is responsible for the cost of obtaining the machine and installing it.

Felony DUI Defenses

There are defenses that attorneys have successfully used against felony DUI cases. Many are aimed at the process and procedure, such as how the evidence was obtained. However, there are many other defenses that can be used.

  • Unlawful search and seizure (to suppress evidence such as drugs found in the defendant’s blood or their BAC)
  • Problems with the drug testing or BAC testing (to cast doubt on the reliability of the tests that show that the defendant was unlawfully intoxicated)
  • The stop of the vehicle or person was illegal
  • Show inaccuracy of the field sobriety test or invalidate it
  • Lack of evidence of defendant being in actual physical control of the vehicle or operating or driving the vehicle 
  • Defendant was not advised of penalties relating to a chemical test
  • Witness accounts of arrest and stop
  • Medical conditions that look like signs of DUI

If you have been charged with a DWI, DWAI, or federal DUI, you probably have a lot of questions. This is not a case where you can skate through and handle it on your own. A DUI is serious business, so you need serious legal representation.

You need The Litvak Law Firm. Mr. Litvak has the training, experience, and skill to help you get the best possible outcome for your case. Don’t put it off and find yourself without representation on your court date, call today at (718) 989-2908, and let’s build your case so that your rights will be protected.