What Is the Difference Between a DWAI and DWI in New York?

New York’s impaired driving laws are more complicated than you may think. While those who drive sober are unlikely to run afoul of these laws, it’s important to know how they apply to drivers. New York has three main drunk driving offenses:

1. Driving While Intoxicated (DWI)
2. Driving While Ability Impaired by Drugs (DWAI-Drugs)
3. Driving While Ability Impaired (DWAI).

“DWI and DWAI-Drugs are misdemeanors and more, while DWAI is a traffic infraction and not criminal,” says Jeremy Saland, a criminal defense attorney at Saland Law.

Driving While Ability Impaired (DWAI)

“The difference between DWI and DWAI is not a number,” says Steven Epstein, a criminal defense attorney at Barket Epstein Kearon Aldea & LoTurco. “DWAI applies if a driver’s ability to operate a motor vehicle is impaired to any extent.”

DWI and DWAI charges are often a package deal. “The DWAI is a way to negotiate a reduced plea to avoid a criminal conviction,” says Epstein. When drugs are involved, DWAI rises to a misdemeanor. Under this charge, “The government must prove a driver’s ability to operate a motor vehicle was actually impaired by the drug,” says Epstein.

Since there’s no equivalent of a breathalyzer for detecting drug impairment, different indications are relied upon, says Saland, including blood tests. “The most effective way to show drug impairment is through a drug recognition expert, or DRE,” adds Epstein. However, some jurisdictions have a limited number of DRE-qualified officers.

Driving While Intoxicated (DWI)

DWI can be proven two in different ways: per se and common law. Per se DWI in New York state is based on a driver’s blood alcohol content (BAC). It is a litmus test that applies when a BAC is .08 or higher.

Under common law DWI, the driver’s ability is determined to be impaired to a substantial extent by alcohol. Even those who refuse a breath test can still be charged with the crime. “The way it works is if you have common law indicia of intoxication, you can be charged with a crime even if no BAC is recorded,” says Saland. Contributing factors can include “watery bloodshot eyes, slurred speech and being unsteady on your feet.”

Additionally, an aggravated DWI is an elevated misdemeanor that can apply to drivers with a BAC of .18 or higher. The statute does not allow a person charged with an aggravated DWI to plea down to a DWAI traffic infraction, though some judges allow it. “Aggravated DWI involves a fine and the revocation of your license for a minimum of one year,” says Epstein. Factors that can raise a DWI from a misdemeanor to a felony include operating a vehicle under the influence of alcohol or drugs with a passenger under age 16 and getting convicted of a second or third DWI within a 10-year period.

Should You Take a Breath Test in New York?

A person suspected of drunk driving can accept or decline a breath test. Evidence of intoxication, when established through the scientific means of a breath test, is far more difficult to challenge than when it’s solely based on a police officer’s report. However, refusing a breath test is not always the right decision.

“It depends on the person and the circumstances,” says Saland. For one thing, there are different types of breath tests and equipment: A portable breath test that may be administered at the traffic stop and an Intoxilyzer that is administered at the police station. Refusing a portable breath test is not as serious as refusing a breath test back at the precinct after you’ve been warned of the consequences. “Failure to blow at the precinct can result in license revocation and allows for a presumption by a judge or jury that you knew you were intoxicated,” says Saland. “Additionally, for someone who has only had one or two beers over a few hours, their BAC would likely be below the legal limit; agreeing to the portable breath test would resolve the issue.”

Adds Epstein, “Very often, a DWI is brought down to a DWAI for people who meet certain criteria. However, if there is a refusal to a breath test, some prosecutors won’t reduce the charge to a DWAI.”

Prosecution and Penalties for a DWI Conviction

Penalties related to a misdemeanor DWI “get technical and depend on the circumstances and the person’s prior history,” says Epstein. Penalties for repeat offenders can be drastic. “It is important for the defense attorney to know the client’s history of DWI,” he says.

When facing a drunk driving charge, “Don’t be the guy who says, ‘I only had a couple.’ Just respectfully decline to answer,” says Saland. “And, if you need your license to drive for work, school, or medical treatment, make sure your attorney requests a hardship hearing at your arraignment.”

Find an Experienced DWI Lawyer

If you’ve been charged with a DWI offense, visit the Super Lawyers directory to find an experienced DWI attorney for legal advice.