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Your New York City DWI Case: The Basics

You're driving home after a night of bar hopping through the Village when suddenly police sirens blare and lights flash in your rearview mirror. Even the most law-abiding citizens have been through the painful experience of a DWI checkpoint or traffic stop, and possibly even arrested, so here is a guide to your New York City DWI case.

The Stop

If a New York City police officer pulls you over under the suspicion of drinking and driving, the officer will likely begin administering a Field Sobriety Test. The officer will observe your eyes for signs of alcohol use and ask you to perform simple mental or physical tasks requiring coordination. If you fail this test, you will likely be asked to submit to a blood, breath or urine test.

A DWI is defined by the alcohol content of your blood, or "BAC." The maximum legal limit depends on your situation:

  • 21 years old or older: 0.08%
  • Younger than 21 years old: 0.02%
  • Driving a commercial vehicle: 0.04%
  • Aggravated DWI: 0.18%

If the test results indicate that your BAC is above the legal limit, or if you refuse to submit to the test, the officer will have probable cause to arrest you on the spot. It may be in your best interest to avoid admitting to consuming alcoholic beverages throughout the examination.

Even if your BAC is below the legal limit, you may alternatively be arrested for a DWAI/Alcohol, which is Driving While Ability Impaired by Alcohol. This offense is commonly referred to as a "wet reckless" and carries reduced penalties.

Implied Consent Law

New York has an "Implied Consent Law," which requires you to take a chemical test once you are lawfully arrested for a DWI. The first time you refuse to comply you can be charged with the separate offense of "Chemical Test Refusal," where your license will be revoked for at least one year and you will face a $500 fine. A second refusal carries steeper penalties and will result in permanent revocation of your commercial driver's license. Although the punishment for refusing the chemical test is relatively lighter than a DWI conviction, refusal does not prevent a separate DWI prosecution.

Zero Tolerance Law

New York's Zero Tolerance Law forbids individuals under the age of 21 to have more than a trace amount of alcohol content in their blood. If you are under 21 years of age and caught with a BAC of 0.02% or more for the first time, you will have your license suspended for six months, may face $225 in fines and fees, and could possibly be ordered to enroll in the New York Drinking Driver program or install an IID.

Moreover, minors face heavy penalties for refusing to submit to a chemical test. If a minor refuses the test, they will have their license revoked for at least a year and will face $350 in fines and fees for a first refusal.


The next likely stop will be the "drunk tank" at the local police station. You will be searched and your personal belongings will be confiscated until your release. The police will take down biographical information, as well as notes about the arrest and alleged crime. You will then be fingerprinted and led to a holding cell, where you will remain incarcerated until the police determine that you are no longer impaired.

Arraignment and Bail

After your arrest, you will receive notice of an arraignment date at one of New York City's many courthouses. An arraignment is a formal reading of the criminal charges against you, and is your opportunity to plead guilty or not guilty. Pleading guilty at arraignment may be a bad idea because you waive any opportunity to review the prosecutor's evidence, file motions on your behalf, or evaluate potential defenses.

When your case is called, the judge will ask if you have an attorney. If you cannot afford to hire an attorney, the court may refer you to the New York City Public Defender's office.

At the end of your arraignment, the judge will set bail, which is a deposit that will be returned to you when you appear at your next scheduled court date. Bail for a first time DWI offender will likely be set between $500 and $1,000, depending on the specifics of your case. If you cannot afford bail, you can instead get a bail bond where the bondsman loans you the amount of bail in exchange for 10% of the loan.

Refusal Hearing

If you refuse to submit to a chemical test, the DMV will probably suspend your license. You will likely receive notice of the suspension at your arraignment. One you receive that notice, you have 14 days to request a "refusal hearing," where the arresting officer must demonstrate that you did, in fact, refuse to submit to a chemical test and that the procedure and paperwork were all proper. Given the low burden of proof, it is quite difficult to win a refusal hearing unless the police officer does not show up, but if you are successful your license will be restored that very day. On the other hand, many attorneys appreciate the opportunity to cross examine the arresting officer in preparation for trial.

Plea Bargaining

New York law contains specific prohibitions against plea bargains for lesser charges when the driver is found to be driving with a BAC of more than 0.08%. This is quite significant because it differs from almost every other state, where borderline cases plea to a wet reckless. However, the statute leaves open the idea that "impaired" drivers can be offered a non-DWI charge like reckless driving, but this is at the discretion of the prosecutor.

DWI Sentencing

All DWI charges carry a license suspension or revocation, the possibility of mandatory enrollment in the New York Drinking Driver Program and a minimum of $250 in annual assessment fines each year for three years.

The Drinking Driver Program consists of weekly classroom sessions. You are responsible for the expenses of enrollment, including a $75 fee payable to the DMV and up to $225 in additional fees payable to the program you attend.

Moreover, the judge could order you to install an ignition interlock device, or "IID," as part of probation or to make you eligible for a conditional license. New York requires drivers to purchase and install their own IIDs, which includes an $85 installation fee and an $80 monthly inspection fee.

If you are arrested for driving while intoxicated with a passenger who is 16 year old or younger, you could be subjected to far harsher punishment: up to a $5,000 fine and up to four years in jail for even your first offense.

Commercial drivers charged with having a BAC above 0.04% face much more severe penalties, including possible disqualification as a commercial driver.

Getting Your License Back

All DWI offenses can leave you with a suspended or revoked license. If your license is suspended, you might be eligible for a "conditional license," which can be used to drive for employment, educational, medical, and child care activities. Usually, you will be able to get a conditional license if this is your first DWI or DWAI conviction and you enroll in the Drinking Driving Program, thought you may be required to install an IID.

Furthermore, if your license was revoked, you can reinstate it by paying all applicable fines, completing any jail time, completing the Drinking Driver Program (if ordered), keeping your IID for the ordered amount of time, finishing your revocation period, and paying the suspension termination fee if required.

Now that you have an idea of what's ahead, you may want to explore FindLaw's section on DWI law for more general information.

Facing DWI Charges? A New York Attorney Can Help

A drunk driving conviction may affect your ability to work, restrict your freedom of movement, and cause a significant amount of public embarassment. Furthermore, DWI cases can involve highly technical evidence and automatic penalties. Contact a qualified New York DWI attorney to get sound advice regarding your defense.

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