New York State Vehicle and Traffic Law (VTL) 1192:

  • DWAI: (VTL 1192.1): This charge is considered a traffic infraction and not a crime. However, there may still be serious consequences such as jail or the suspension of your driver’s license. This section is charged when a driver has a blood alcohol content between .04% and .07% while operating a motor vehicle on a public highway.
  • DWI: (NYS VTL 1192.2): This charge is considered a misdemeanor, which is a crime. This section is charged when a driver has a blood alcohol content of .08% or more while operating a motor vehicle on a public roadway.
  • DWI: (NYS VTL 1192.2a): This charge is considered a misdemeanor, which is a crime. This section is charged when a driver has a blood alcohol content of .18% or higher or operates a motor vehicle in violation of any section of VTL 1192 with a child less than 16 years old in the car.
  • DWI: (NYS VTL 1192.3): This charge is considered a misdemeanor, which is a crime. This section does not hinge on a specific blood alcohol content and can thus be charged even if there is a refusal to submit to a chemical test.
  • DWI: (NYS VTL 1192.4): This charge is considered a misdemeanor, which is a crime. This section can be charged when it is suspected that a person has operated a motor vehicle on a public roadway while under the influence of drugs.
  • DWI: (NYS VTL 1192.4a): This charge is considered a misdemeanor, which is a crime. This section can be charged when it is suspected that a person has operated a motor vehicle on a public roadway while under the influence of drugs and alcohol combined.
  • DWI: (NYS VTL 1192.5): This charge is considered a misdemeanor, which is a crime. This section can be charged when a driver is operating a commercial vehicle on a public roadway and has a blood alcohol content of .04% or higher.
  • Zero Tolerance: In the State of New York, you must be 21 years of age or older in order to legally consume alcoholic beverages. Because of this, a person operating a motor vehicle on a public roadway and has a blood alcohol content of between .02% and .07%, is in violation of the Zero Tolerance Law. This can lead to a mandatory revocation of your driving privileges.
  • Leandra’s Law: In 2009, an eleven year old girl by the name of Leandra Rosado was killed in crash while she was a passenger in the vehicle of her mother’s friend, who was intoxicated. After this tragedy, “Leandra’s Law” or the “Child Passenger Protection Act” was passed. This new law dictates stiffer penalties and enhanced sentences for those operating a motor vehicle with a child. See below for potential consequences.

Potential Consequences of DWI Conviction: The consequences of a DWI conviction vary depending upon the section under which one is convicted but they can include:

  • Fines and surcharges
  • Conditional Discharge
  • Community Service
  • Probation
  • Jail
  • Seizure of your vehicle
  • Drivers Responsibility Assessment from the DMV
  • Mandatory attendance and various programs
  • License Revocation or Suspension
  • Lifetime review of your driver’s license

Potential Consequences under “Leandra’s Law”:

  • A felony conviction and up to 4 years in prison
  • Mandatory ignition interlock device
  • Suspension of your driver’s license
  • Up to 15 years in prison if the child suffered serious injury
  • Up to 25 years in prison for causing an accident resulting in the death of the child
  • If you are legally responsible for the child, you will be reported to the Statewide Central Register of Child Abuse and Maltreatment

Refusals

Refusal to Submit to a Chemical Test of your Breath or Blood: Since driving is a privilege and not a right, anyone operating a motor vehicle on the roads of the State of New York, is deemed to have given consent for a chemical test. Therefore, if you are asked to do so and you refuse, this refusal can be used against you in Court to show that you had a consciousness of guilty (meaning, you knew you were drunk and that’s why you refused). In addition, the DMV will undertake separate civil proceedings against you with regard to your driver’s license and a potential fine. These civil proceedings are completely separate from your criminal case and any suspensions that might result from your criminal case.

Civil Sanctions for Refusal-First Offense: A chemical test refusal is considered to be a first offense if, within the past 5 years, you have neither (a) had your driving privileges revoked for refusing to submit to a chemical test, nor (b) been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI Combined Influence (not arising out of the same incident). A chemical test refusal is considered to be a repeat offense if, within the past 5 years, you have either (a) had your driving privileges revoked for refusing to submit to a chemical test, or (b) been convicted of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI Combined Influence or Zero Tolerance.

Civil sanctions for refusing to submit to a chemical test as a first offense are:

  1. Revocation of your driver’s license for 1 year (18 months if you have a CDL);
  2. A civil penalty of $ 500; and
  3. A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence conviction arising out of the same incident).

Civil Sanctions for refusing to submit to a chemical test as a Repeat Offender are:
The civil sanctions for refusing to submit to a chemical test as a repeat offender are:

  1. Revocation of your driver’s license for 18 months (at least 10 years if you have a CDL);
  2. A civil penalty of $750 (unless the predicate was a violation of the Zero Tolerance Law, in which case the civil penalty is $500); and
  3. A driver responsibility assessment of $250 a year for 3 years (unless such assessment is already being paid based upon a DWAI, DWI, Aggravated DWI, DWAI Drugs or DWAI Combined Influence conviction arising out of the same incident).

In addition, DMV will require evidence of alcohol evaluation and/or rehabilitation before it will ever relicense you.

Chemical Test Refusal Revocation — Underage Offenders
If you are less than 21 years and have refused to submit to a chemical test and it is your first offense the consequence is a revocation of your license for a period of one year. If it is not your first time, and you have previously refused to submit to a chemical test or a conviction of DWAI, DWI, Aggravated DWI, DWAI Drugs, DWAI Combined Influence or Zero Tolerance, then your driver’s license will be revoked for a minimum of 1 year or until you turn 21 years of age, whichever is longer.

DMV Refusal Hearing
You have a right to have a hearing before an Administrative Law Judge at the DMV before your license can be revoked based upon a refusal. These hearings are conducted not because the outcome will be in your favor (it generally is not), but because it will give us the opportunity to hear what the police officer who arrested you said. It will lock him/her into their story and will allow us the early opportunity to cross exam them regarding their actions during your arrest. If your case is still pending, this can provide us with information that may be able to assist you at trial or in securing a favorable plea.