Driving under the influence of drugs or alcohol is never a good idea. What’s more, if you are arrested for DUI or DWI, the case can become complex very quickly. Certain criteria must be met for a conviction, and it is the job of law enforcement to ensure that these criteria are met when they make an arrest. However, it is not always so cut and dry, and you could wind up being charged with a DWI or DUI unfairly.

It happens every day.

The thing about a DWI or DUI conviction is that it could follow you for the rest of your life. It can be on your permanent record, even a misdemeanor DUI. Even if it isn’t showing up on your permanent criminal record, under New York’s look-back statutes, it could still, depending on the circumstances, come up or be considered, four, five, ten, or even 25 years after the incident.

The penalties for misdemeanor DUI are also substantial with high fines, imprisonment, probation, and suspension of your driver’s license. It can cost you a great deal.

In addition to the penalties for DWI or DUI, you can also be held accountable for (and be made financially responsible for):

  • Personal injury
  • Property damage
  • Injury to others
  • Pain and suffering
  • Endangerment of others
  • Death of loved ones
  • Your vehicle getting towed and impounded

If you are facing DUI or DWI misdemeanor charges, you need a criminal defense attorney who will fight for you to make sure that your rights are protected. This is no time to try to take care of it yourself. The laws of New York regarding DWI are extremely complex and confusing. The court system is difficult to navigate. No matter how bright you are or how capable you are, you are likely to get lost in the shuffle without solid, competent, aggressive representation.

You have enough to worry about, let your lawyer do the heavy lifting for you.

Overview of DUI/DWI/DWAI

Several different charges are associated with the crime that is committed when you are under the influence of drugs or alcohol and operate a vehicle:

  • DUI – Driving Under the Influence 
  • DWI – Driving While Intoxicated
  • DWAI – Driving While Ability Impaired

Federal law uses the term DUI to address any charge of driving under the influence of drugs or alcohol on federal property. The states have different terms that they use, typically DUI or DWI.

Under New York law, the terms DWI and DWAI are used.

The terms are usually not interchangeable. Under the laws of most states, each term has a specific definition and carries specific penalties. 

For instance, DUI is typically a broad term that includes not only a driver who has been impaired by alcohol, but also other substances that can impair, such as certain prescription medication (like hydrocodone and oxycodone), heroin, and marijuana. Under New York law, both DWI and DWAI fall under the umbrella of DUI. Other states have different laws.

Federal Misdemeanor DUI Laws

A DUI offense can be a federal crime depending on certain factors. Most of the time though these types of crimes are handled at the state level.

The most common way that a DUI becomes a federal crime is when it occurs on federal property. This can include:

  • National Park
  • Military Base
  • Federal Property

36 CFR § 4.23 – Operating under the influence of alcohol or drugs is the federal law that addresses and defines federal DUI.

(a) Operating or being in actual physical control of a motor vehicle is prohibited while:

(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or

(2) The alcohol concentration in the operator’s blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided, however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator’s blood or breath, those limits supersede the limits specified in this paragraph.

(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.

(c) Tests.

(1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the breath, saliva, or urine for the purpose of determining blood alcohol and drug content.

(2) Refusal by an operator to submit to a test under paragraph (c)(1) is prohibited and proof of refusal may be admissible in any related judicial proceeding.

(3) Absent exigent circumstances, an operator cannot ordinarily be required to submit blood samples for the purpose of determining blood alcohol and drug content unless it occurs through a search warrant. An authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section shall get a search warrant, except when exigent circumstances exist, to obtain any blood samples from the operator for the purpose of determining blood alcohol and drug content.

(4) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.

(5) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.

(d) Presumptive levels.

(1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator’s blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.

(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.

New York Misdemeanor DWI/DWAI Laws

New York law is lengthy, complex, and comprehensive when addressing DWI and DWAI. Article 31 – NY Vehicle and Traffic Law covers the traffic infractions or violations, misdemeanors, and felonies associated with driving under the influence. It also addresses using chemical testing as evidence, alcohol, and drug rehabilitation programs, and special traffic options programs for driving while intoxicated. By statute, New York also uses ignition interlock devices.

A person’s first DWI offense in New York is usually a misdemeanor. A DWAI is a violation and not a criminal charge. An aggravated DWI is always a felony.

Under New York law, there are five categories of offenses that cover impaired driving:

  • DWI – Operating a vehicle while having a blood alcohol concentration (BAC) of:
    • .08% or higher for all drivers except for commercial drivers
    • .04% for commercial drivers
    • Impaired to a “substantial extent”
  • Alcohol-DWAI – Operating a vehicle while the driver’s ability to drive as a “reasonable and prudent” person is impaired to “any extent” by alcohol
  • Drug-DWAI – Operating a vehicle while the driver’s ability to drive as a “reasonable and prudent person is impaired to “any extent” by drugs, including some prescription medication
  • Combination-DWAI – Operating a vehicle while the driver’s ability to drive as a “reasonable and prudent” person is impaired to “any extent” by a combination of alcohol and drugs
  • Aggravated DWI – Operating a vehicle while: 
    • Having a BAC of .18% or higher
    • Driving with any level of intoxication and having a passenger in the car who is 15 years old or younger

New York DWI: Violations vs. Misdemeanors

It is important to understand the difference between violations and misdemeanors, especially when dealing with DWI laws in New York. Violations are a lesser charge and are not considered a crime while misdemeanors are crimes.

This is important if you are charged with a DWI misdemeanor because you could often seek to have your charge reduced to a violation which would mean lighter penalties and you would not have a criminal record.

In some cases, a violation and misdemeanor can look very similar, so it is important to understand exactly how New York law defines each. For context, the definition of a traffic infraction also includes:

Traffic Infraction – Under the New York Vehicle & Traffic Law (VTL § 155) a traffic infraction is any violation of the VTL with the exception of Article 47 and Article 48. It also includes any violations of any New York ordinances, rules, laws, regulations, or orders that regulate traffic and are not misdemeanors or felonies.

Violation – A violation is an offense that is not a traffic infraction but is not serious enough to be a misdemeanor. It is not a crime but can carry a penalty of up to fifteen days in jail.

Misdemeanor – A misdemeanor is a low-level offense, sometimes referred to as a “petty offense.” Under New York law, they are classified as either a Class A or Class B or they can be unclassified. The penalty for a misdemeanor is up to one year in jail, probation, and fines. 

Penalties for a Federal Misdemeanor DUI Conviction

The Code of Federal Regulations lays out the penalties for federal misdemeanor DUI. In some cases, a DUI that occurs on federal property may be charged and prosecuted by the DUI laws of the state where the offense occurred. Under federal law, a person who has been charged with a DUI does not have the right to a jury trial. They only have the right to a trial by a judge.

A DUI that occurs in a national park is a Class B misdemeanor and carries fairly harsh penalties:

  • Maximum 6 months in jail
  • Maximum fine $5,000
  • Maximum probation 5 years

Any other DUIs that occur on federal property other than a national park or military bases are prosecuted according to the statutes of the state where the incident took place.

Penalties for a Misdemeanor DWI Conviction in New York

The penalties for a misdemeanor DWI conviction in New York are not light:

  • Mandatory fine
    • Minimum $500
    • Maximum $1000
  • Possible jail time
  • Possible probation
  • Revocation of driver’s license for a minimum of 6 months

The penalties for the violation of DWAI in New York are:

  • First Offense DWAI
    • Mandatory fine
      • Minimum $300
      • Maximum $500
    • Maximum 15 days jail time
    • Revocation of driver’s license for a maximum of 90 days
  • Second DWAI Violation in Five Years
    • Mandatory fine
      • Minimum $500
      • Maximum $750
    • Maximum 30 days jail time
    • Revocation of driver’s license for at least 6 months
  • Third DWAI within 10 years
    • Mandatory fine
      • Minimum $750
      • Maximum $1,500
    • Maximum 180 days in jail
    • Revocation of driver’s license for at least 6 months

Defenses for Misdemeanor DUI/DWI

Typically, when a person is arrested for a DWI or DUI it is because they were stopped by the police while they were driving and intoxicated. There is a lot of circumstantial evidence, such as intoxicated behavior, the smell of alcohol on the person’s breath, unsteadiness, and other telltale signs of an inebriated person. However, some defenses can be very successful in court for reducing the charges or getting them dismissed.

Usually, the best way to beat a DWI charge is to find potential weaknesses in the case:

  • Lack of probable cause for the traffic stop
  • Illegal search and seizure
  • Miranda rights issues
  • Problems with the administration of the Field Sobriety Test
  • Officer’s false observations of the defendant driving while intoxicated
  • Failure to maintain or calibrate the breathalyzer machine
  • Failure to inform the defendant about penalties associated with the chemical test
  • Lack of probable cause when gathering evidence during the traffic stop
  • Inconsistencies in police testimony
  • Officer’s bias towards a person who may operate a vehicle under the influence of alcohol, medication, drugs, or marijuana
  • Presence of medical conditions that may have mimicked the warning signs of DWI
  • Witness accounts of the defendant’s condition prior to driving

If you have been charged with a DUI, DWI, or DWAI, you cannot afford to wait and see what happens.

You need legal representation right away.

Call The Litvak Law Firm at (718) 989-2908 and get the help you need. Mr. Litvak has the experience, education, and skill to stand up for you, fight for you, and ensure that your rights are protected.

Don’t wait until it’s too late. Call today.