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Recent Law Changes and Trends in DWI DUI Cases in New York That Your DWI DUI Criminal Lawyer Should Discuss with You
A few years ago legislature in New York made it a requirement that just about anyone arrested for a DWI DUI in New York was required to undergo a screening or assessment for alcohol treatment within 5 days of their arrest whether or not they would ever be convicted of the crime. New York DWI DUI criminal lawyers were scrambling around quickly to get clients the best OASAS certified screeners for their clients. But that was nothing compared to the recent addition of law requiring anyone convicted of a misdemeanor or felony DWI DUI (including first time offenders) in New York to install an ignition interlock system into their car.
An ignition interlock is a device that requires a person to blow into a breath testing machine to not only start their car but to continuously blow into said machine every so often to keep it running. The ignition interlock must be installed in any car owned or driven by a person who was convicted of a DWI DUI in New York. NYC DWI DUI criminal attorneys had to explain to their clients that such a law meant that a person could never borrow a car from a friend or relative, could never rent a car or drive any car unless an ignition interlock were installed during the time period for which the court would require the installation of the ignition interlock. Most courts in New York City are requiring instillation of the ignition interlock for six months or one year (but could be as high as 5 years).
If the ignition interlock detects a blood alcohol concentration level of .025 or over it will not allow the car to start. The legal limit in New York State is .08 BAC for a driver to be considered intoxicated. In New York you would also be presumed to be impaired by alcohol if your BAC was .05 or above. The .025 BAC is extremely low number and would make the machine super sensitive to alcohol. As a New York criminal DWI DUI attorney in NYC I have heard horror stories from clients complaining of trying to start their car in the morning to go to work only to be shut down by a super sensitive machine that they claim is detecting other mouth alcohol from mouth hygiene products or other products containing alcohol. Or as other New York City criminal DUI DWI lawyers in Manhattan have told me that family members who wish to drive the same family car of a person convicted of a DUI or DWI in New York who couldn’t start the car because of ingestion of a scant amount of alcohol many hours earlier, even though they would not be legally impaired otherwise.
The ignition interlock cost about $200 to install and about $80 a year in maintenance. Under the law judges can also decide whether a DWI DUI convict must also have a camera installed to record the test or have a GPs device installed.
Another part of the recently enacted “Leandra’s Law” allows the prosecutors to charge a felony for anyone arrested for drunk driving in New York with a child under 16 in the car. On a first arrest an accused could be facing a maximum penalty of 4 years in jail.
Trends in the Court Rooms for DWI DUI Cases In New York
The recent trends in New York City are a continuous push by both the district attorney’s offices and judges for continuous harsher penalties for DWI DUI arrests. This is true in counties such as Manhattan Queens Brooklyn Bronx Nassau Westchester Staten Island and Rockland. It has been increasingly harder for New York Criminal DWI DUI lawyers to enter into plea agreements for their clients for the lower charge of Driving While Ability Impaired by Alcohol. Nassau County was the first county to really push for jail time on even first arrest DWI DUI’s. Some of the other counties such as Manhattan has recently elevated it’s push for harsher penalties on DWI DUI cases. These counties have also started offering jail time plea bargains for first time DWI DUI arrest for cases where their was an accident or a very high BAC level. In Manhattan they have also started indicting misdemeanor cases to have them handled in Supreme Court. Some of the prosecutors in are also refusing to concede the full dismissal of a case on speedy trial grounds for traffic infraction charges just like what was already being done in other counties such as Queens Brooklyn and Nassau. It is the opinion of this New York DWI DUI lawyer that we might inevitably see a law change sometime in the future where all DWI DUI arrests are felonies.
It has become increasingly important to retain a knowledgeable and highly skilled New York criminal DUI DWI lawyer to help you fight an arrest. Not only to try to get your case dismissed or reduced to give you no criminal record, or to help you keep your drivers license, and get your car back; but to also to prevent you from going to jail even on your first arrest. Aaron Wallenstein is a highly skilled and knowledgeable DWI DUI attorney in New York City who will help you get your best possible disposition for your DWI DUI arrest in New York State.
What are the different crimes involving alcohol and drug-related driving violations in New York State?
- Aggravated DWI: Aggravated Driving While Intoxicated: .18 BAC or higher.
DWI Driving While Intoxicated: .08 BAC* or higher or other evidence of intoxication
- DWAI: Driving While Ability Impaired (by alcohol): .05 BAC* to .07 BAC*, or other evidence of impairment.
- DWAI/Drugs: Driving While Ability Impaired (by a drug that is not alcohol)
Chemical Test Refusal: A driver who refuses to take a chemical test (normally a test of breath, blood or urine) can receive a driver license revocation of at least one year (18 months for a commercial driver) and must pay a $500 civil penalty ($550 for a driver of commercial vehicles) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI-related charge or previous refusal will have their driver license revoked for at least 18 months (permanent for a commercial driver) and must pay a $750 civil penalty to apply for a new driver license. If the driver is under age 21, and refuses a chemical test during the five years after a DWI-related charge or previous refusal, they will have their driver license revoked for at least one year or until age 21, whichever is longer and must pay a $750 civil penalty to apply for a new driver license.
Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC violates the Zero Tolerance Law.
*BAC = blood alcohol concentration
What is the difference between DWI and DWAI?
- Intoxicated is defined as the voluntary consumption of alcohol causing impairment which renders a person incapable to a substantial extent of employing the physical and mental abilities which are needed to possessed in order to operate a vehicle as a reasonable and prudent driver.
- Impairment is defined as impairment to any extent of the physical and mental abilities needed to be possessed in order to operate a vehicle as a reasonable and prudent driver.
- DWI is a misdemeanor offense giving a person a criminal record. A first time offender shall be punishable by a maximum one-year jail term and/or a fine of $500-$1000 and a mandatory license revocation of six months. There is no enhancement of sanctions if the defendant has a prior conviction of DWAI. A prior conviction for DWI within the last 10 years will result in a felony charge and enhanced sanctions.
- DWAI is a traffic infraction and not a crime and will not leave a person with a criminal record. A first time offender shall be punishable by a maximum jail term of 15 days and/or a fine of $300-$500 and a license suspension of 90 days. A second time offender within 5 years shall be punishable by a maximum jail term of 30 days, and/or a fine of $500-$750 and a license suspension of 6 months. A third time offender shall be punishable by a maximum jail term of 90 days, and/or a fine of $750-$1500 and a license suspension of 6 months.
What is the difference between DWI and DWAI?
- If you refuse a chemical test for BAC (Blood Alcohol Content), your license will be suspended at arraignment in court, and revoked for at least six months (second offense, one year) at a Department of Motor Vehicles hearing. You will also be subject to a civil penalty of $300 (second offense, $750). A driver under 21 years old who refuses to take a chemical test under the Zero Tolerance Law is subject to a 1-year license revocation and a $300 civil penalty. The penalties and fines for refusing to submit to a chemical test are separate from, and in addition to the penalties and fines for alcohol or drug-related convictions.
Can I Get A Conditional License if I Was Convicted of DWI or DWAI?
- If you receive your first conviction for DWI or DWAI and you participate in the Drinking Driver Program (DDP), you can receive a conditional license. The DMV determines if you are eligible for the DDP. A judge can stop your enrollment in the DDP.
Penalties for Alcohol-related and Drug-related Violations
|Violation (1)||Mandatory Fine (2)||Maximum
|Mandatory Driver License Action (3)|
|Aggravated Driving While Intoxicated (A-DWI)||$1,000 – $2,500||1 year||Revoked for at least one year|
|Second A-DWI in 10 years (E felony)(1)||$1,000 – $5,000||4 years||Revoked for at least 18-months (5)|
|Third A-DWI in 10 years (D felony)(1)||$2,000 – $10,000||7 years||Revoked for at least 18-months (4,5)|
|Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug)||$500 – $1,000||1 year||DWI-Revoked for at least six months
DWAI-Drugs – Suspended for at least six months
|Second DWI/DWAI-Drug violation in 10 years (E felony)(1)||$1,000 – $5,000||4 years||Revoked for at least one year|
|Third DWI/DWAI-Drug violation in 10 years (D felony)(1)||$2,000 – $10,000||7 years||Revoked for at least one year (4)|
|Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination)||$500 – $1,000||1 year||Revoked for at least six months|
|Second DWAI/Combination in 10 years (E felony)(1)||$1,000 – $5,000||4 years||Revoked for at least one year/18 months (5)|
|Third DWAI/Combination in 10 years (D felony)(1)||$2,000 – $10,000||7 years||Revoked for at least one year/18 months (4,5)|
|Driving While Ability Impaired by Alcohol (DWAI)||$300 – $500||15 days||Suspended for 90 days|
|Second DWAI violation in 5 years||$500 – $750||30 days||Revoked for at least six months|
|Zero Tolerance Law||$125 civil penalty and $100 fee to terminate suspension||None||Suspended for six months|
|Second Zero Tolerance Law||$125 civil penalty and $100 re-application fee||None||Revoked for one year or until age 21|
|Chemical Test Refusal||$500 civil penalty ($550 for commercial drivers)||None||Revoked for at least one year, 18 months for commercial drivers.|
|Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal||$750 civil penalty||None||Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.|
|Chemical Test Refusal –
Zero Tolerance Law
|$300 civil penalty and $50 re-application fee||None||Revoked for at least one year.|
|Chemical Test Refusal –
Second or subsequent Zero Tolerance Law
|$750 civil penalty and $50 re-application fee||None||Revoked for at least one year.|
|Driving Under the Influence – (Out-of-State)||N/A||N/A||Suspended for 6 months. If less than 21 years of age, revoked at least one year.|
|Driving Under the Influence – (Out-ofState) with any previous alcohol-drug violation||N/A||N/A||Suspended for 6 months. If less than 21 years of age, revoked at least one year or until age 21 (longest term).|