Warren Redlich is the author of the Amazon "Hot New Release"
Fair DUI: Stay safe and sane in a world gone MADD
New York State has a lower-level "drunk driving" offense called
DWAI, short for Driving
Impaired by alcohol.
In most DWAI cases we believe the defendant should fight the charges.
There are three major reasons for this.
First, the penalties for a DWAI are fairly harsh.
Second, there may be no plea bargain available. Third, DWAI cases are generally easier to win (though it is never easy).
To put it another way, you often have nothing to lose by fighting a DWAI case.
Please note that there is a separate DWAI Drugs offense for impairment from drugs. This page is about DWAI alcohol.
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While a first-time DWAI conviction is not criminal, the penalties are still
Fines and expenses can easily exceed $1000 and even approach $2000.
A first-time DWAI offense will also lead to license suspension for 90 days.
Another big impact is the likely increase in insurance rates, which may cost over $1000 a year in increased premiums.
Finally, a DWAI violation stays on your driving record for at least 10 years,
and may show up on a criminal history check for the rest of your life.
For out-of-state drivers, a DWAI in New York may have consequences in your home state.
Florida will revoke your license for six months (Dawson v. State, 19 So.3d 1001).
We represented a man who chose to take the DWAI and Oregon revoked his license for a year.
So make sure you understand the consequences in your home state before you accept a
DWAI in New York.
If your work involves driving, you might lose your job or not get a
job because of a DWAI.
You can even be denied admission to Canada because of a DWAI. We've seen both happen.
If the BAC is 0.05, we can often get the case reduced or dismissed.
If the BAC is 0.06, then sometimes we can get deals. If the BAC is 0.07, usually we will have to fight it.
If the only offer is "plead to the charge" (i.e. plead guilty to what you're accused of),
you have little to lose by fighting a case through a hearing and even a trial.
The worst that can happen is that you get convicted of the offense charged,
which is what happens if you plead to the charge anyway.
NY DWI charges typically depend on the results of a test for
blood-alcohol content (BAC) performed by police
on a device called a breathalyzer. For a BAC of 0.08 or above, the police will usually charge the defendant
with a misdemeanor DWI crime. When the BAC is 0.05, 0.06, or 0.07, they will usually charge the defendant with DWAI.
There are some very important differences between these charges.
The higher level DWI offenses involve two different charges. Under
§1192(3), or common law DWI,
the prosecution must prove you were intoxicated. In simple terms, they have to persuade
a jury you were drunk - you looked drunk, you sounded drunk, you smelled drunk, etc. Under §1192(2), the "per-se DWI,"
they must prove that your BAC was 0.08 or higher.
In almost all DWI cases, you will be charged with both and the prosecution will have two different ways to convict you.
Most DWI lawyers believe that it is easier for the prosecution to win by proving that your BAC was 0.08 or higher.
For the DWAI violation, they must prove that you were impaired. Driving with a BAC below
0.08 is not illegal in and of itself.
So the prosecution has only one way to win, and it is the more difficult way.
Also, cases involving a BAC below 0.08 create other problems for the prosecution,
as that renders other aspects of the arrest suspect - especially with regard to
the Standardized Field Sobriety Tests - the tests the police do at the side of the road where they wave a pen
in front of your eyes, have you stand on one leg, or have you walk a line.
We handle DWAI cases in all New York courts. Call us at 888-733-5299.
The call is toll-free and there is no charge for the initial phone consultation.Please call us to discuss your case before making any payment: 888-733-5299
We also have a page about Colorado DWAI.
©2011 Warren Redlich, Esq.