In New York, an alcohol related driving offense may be a violation, a misdemeanor or a felony offense. A charge of Driving While Intoxicated, ( DWI),  may be based on a breath test or blood test showing a blood alcohol level of .08 or higher. When the motorist refuses to submit to a breath test and the officer is unable to obtain a blood alcohol level, an officer may still charge a driver with driving while intoxicated based on other factors that establish intoxication such as blood shot eyes, slurred speech, or the smelled of an alcoholic beverage on the breath. 

 

Motorist charge with driving while intoxicated for the first time will usually be charged as misdemeanor. Those charged with driving while intoxicated with a child 15 years or younger in the vehicle at the time of the stop, will be charged with Aggravated DWI/ Child in Vehicle, an E felony pursuant to Leandra’s law. Those with a previous conviction for driving while intoxicated or driving while impaired due to drugs, within the last 10 years, will be charged with felony driving while intoxicated.

 

Those charged with driving while intoxicated with a blood alcohol level of .18 or higher will be charged with Aggravated Driving While Intoxicated under  VTL 1192.2A. A conviction for Aggravated Driving While Intoxicated carries more serious consequences than a conviction for Driving While Intoxicated with a lower blood alcohol content level.

Those who register a blood alcohol level of .05 or greater, and less than .08 will be charged with Driving While Ability Impaired by the Consumption of Alcohol ( VTL 1192.1). This charge is a violation, not a misdemeanor, providing the motorist does not have a conviction for driving while impaired or driving while intoxicated within 5 years of the new charge. If the motorist has a previous conviction for driving while impaired or driving while intoxicated within the last 5 years, he or she may be charged with a misdemeanor.

 

A motoist may also be charged with Driving While Ability Impaired Due To Drugs (VTL 1192.4) as well as Driving While Ability Impaired Due To A Combination Of Drugs And Alcohol (VTL 1194.A).

 

 

In New York, those charged with misdemeanor driving while intoxicated who have “refused “ to submit to a breath test, or chemical test will automatically lose their license upon arraignment     (  usually the first court date ) pending a refusal hearing to be conducted at the DMV.  The refusal hearing is usually scheduled about 8 days after the arraignment. If you lose the refusal hearing or fail to appear for the hearing, your license will be revoked for a minimum 6 months, or 1 year for those under the age of 21. 

For those who submit to a breath test or chemical test, their licenses will be suspended for 30 days following the arraignment. The 30 day suspension runs from the date of the arrest. Those who are in possession of a valid New York State driver's license may be eligible to receive a for a hardship license from the court. A hardship license allows you to drive from your home to your place of employment and back, to and from school, and/or to and from medical appointments. The hardship license only allows you to drive during very specific times and days during the 30 day hardship license period. After 30 days you will be eligible to go to the DMV and apply for a new license, providing there are no other suspensions on your license. Before issuing a hardship license, the court will conduct a hardship hearing to determine whether a hardship exists and a hardship license is warranted.
 

There is another type of suspension that is commonly imposed on those charged with a DWI. This suspension is called a suspension pending prosecution. Also known as a 510.2B suspension, it grants the court the authority to suspend your license during the pendency of the case. Once the case is finished, the suspension is automatically terminated by operation of law. A judge may also lift this type of suspension at any time prior to the resolution of the case.

 

A conviction for an alcohol related driving offense carries additional suspensions and/ or revocations on your driver’s license. In addition, a conviction for driving while intoxicated requires the installation of an ignition interlock device in any vehicle owned or operated by the defendant for a certain period of time. The ignition interlock device requires the driver to blow into the device to confirm that he or she has not consumed alcohol.
 

Regardless of the type of Alcohol related suspension imposed, after the case is resolved, you may be able to acquire your driving privileges back sooner by entering and completing a NYS DMV drunk driving program. Essentially, once you complete the program, it generally overrides the prior alcohol related suspensions and revocations.

 

Resolving a Driving While Intoxicated charge
 

The resolution of any New York DWI charge will depend on a number of factors. Among the factors weighing in is whether the defendant submitted to a breath test or chemical test, the blood alcohol level, prior record, whether there was an accident, whether anyone was anyone injured, the court the case is pending in, the prosecutor assigned to the case, and the skill of the attorney handling the case.