Driving While Intoxicated (DWI) and Driving While Ability Impaired (DWAI)

In New York State Driving Under the Influence is broken down into two basic classifications of offenses, Driving While Intoxicated (DWI) and Driving While Ability Impaired (DWAI).

Driving While Intoxicated (DWI) is a crime in New York State and Driving While Ability Impaired (DWAI) is a violation and not a crime.

In Westchester County, when drivers are suspected to have a blood alcohol content of 0.08% or more, they can be charged with DWI. The charges and penalties for DWI are much harsher than those for DWAI. DWAI charges can be filed when motorists are suspected to have blood alcohol content (BAC) between 0.05% and 0.07%.

The Westchester County District Attorney must prove a DWI and/or a DWAI charge “Beyond a Reasonable Doubt”. The reasonable doubt standard is the highest evidentiary standard in New York State. Being arrested for a DWI or DWAI does not necessarily mean a motorist will be convicted of a crime. Being arrested for committing a DWI or DWAI can make anyone feel like the odds are stacked against them. However, it is the police and the prosecutor who have to prove each element of a DWI and DWAI charge to obtain a conviction.

New York State Vehicle and Traffic Law, states driving while intoxicated (DWI – VTL 1192) is driving a motor vehicle while unable to do so as a reasonable or prudent driver or with a blood alcohol level above .08%. For the motorist to be convicted of a DWI, the prosecution must prove the following elements of the crime:

The last element is sometimes the most difficult to prove. Intoxication can be shown by the result of a chemical test (VTL 1192.2) or based upon officer’s observations “per se intoxication” (VTL 11.92.3).

Our DWI defense attorneys always analyze a DWI charge using the elements of the crime. This is important as if an element is missing the DWI charge will be dismissed. When our DWI attorneys review the charge and evidence with our clients we always go back to the elements and the strength of the case. Remember each element must be proven beyond a reasonable doubt.

In our attorneys 23 years of experience defending all types of DWI charges this approach has proven successful. For example, our attorneys have had multiple cases dismissed for failure to prove operation. For example, clients had been sitting in a car in a parking lot, parked on the side of the road or not found behind the wheel of the vehicle. All those matters were dismissed. Further, our DWI attorneys have had BAC levels suppressed resulting in a dismissal of the charges due to improper administration of the test or improper maintenance and/or calibration. Lastly, our DWI attorneys have had charges dismissed based upon lack of evidence in general and the failure of the prosecution to prove “intoxicated condition” beyond a reasonable doubt.

Many of our client’s review their own cases before they call our office and think it’s a hopeless situation but that is not always the case. As experienced DWI lawyers our attorneys know what to look for in DWI defense to save our clients from a wrongful DWI conviction.

Upon a conviction for DWI (VTL 1192.2 or 3) New York State law required the installation of an IID device for a minimum period of 6 months. The installation, maintenance and calibration and ultimate removal is administered by the IID provider and the Westchester County Department of Probation.

A special IID designation will be added to a motorist’s driver’s license and it is the motorist's responsibility to remove the restriction once the IID period expires. In other words, the IID license restriction does not automatically drop off a motorist license.

If a motorist is found to be driving a motor vehicle with an IID restriction on their license this will automatically result in a class “A” misdemeanor charge with the maximum penalty of up to one year in jail.

An IID must be installed on all of the vehicles a driver owns or operates. The motorist is also responsible for all costs of installing, maintaining and operating the IID.

In the case of a DWI or DWAI conviction New York does not apply points against the motorist’s driver’s license. The penalties from a DWI or DWAI conviction are far more serious than points against your license.

Points are assessed primarily from convictions for traffic violation such as speeding or operating a cell phone while driving.

The Breathalyzer is the chemical test used by law enforcement to determine the motorists Blood Alcohol Contact (BAC). This test is the most widely used of all chemical tests primarily due to the ease of use for law enforcement.

The portable breath test (PBT) is the first test that law enforcement will use to determine a BAC level. This test is a handheld machine administered roadside. Importantly, this is not the “official” test or most scientific test used to determine BAC. The breathalyzer at the local police station or State Police Barracks is the machine that law enforcement will use to determine a motorist’s BAC level.

The administration of both breathalyzer tests is relatively simple. Law enforcement will ask the motorist to blow into a straw attached to a machine to provide a deep lung breath sample. If the result is a .08% BAC or above the motorist will be arrested for DWI. If less then a .08% BAC the motorist will be arrested for DWAI (Driving While Ability Impaired). This BAC evidence is the primary proof of intoxication used by prosecutors but the question for the DWI defense lawyer to ask is if that reading (BAC level) is accurate.

To determine if the BAC level is accurate several issues must be investigated by the DWI defense attorney. This includes the motorists age, gender, rate of alcohol consumption, medication, and the motorists’ emotional state. A breathalyzer cannot account for all of these factors.

For example, if the motorist had five shots of liquor at a bar and left the bar to drive home, not enough time would have passed for an accurate BAC reading while driving. In other words, the BAC level at that time was on the rise. By the time the motorist is brought to the police station (usually at least an hour later) the motorist BAC level would be at its highest level due to the rate of alcohol consumption. This is a false positive as the BAC level while driving, an hour ago, would have been much lower.

Further, the breathalyzer machine must be properly calibrated and tested. All of the testing and calibration records must be properly kept and proved to the DWI defense attorney at the early stages of the DWI prosecution. These records must be properly screened to determine if there are any errors in the testing instrument.

If there is an error in the testing, calibration, maintenance or record keeping those are all grounds for suppression of the BAC test result thereby resulting in the dismissal of the DWI (VTL 1192.2) charge.

When hiring a lawyer, it is important to have confidence that the person representing you is doing so with respect for you and with the utmost competence. Your attorney should keep you informed about your case and have the legal and scientific knowledge to counsel you.

Our DWI lawyers are former prosecutors and published authors in the area of DWI defense and general criminal defense. With over 23 years of experience in all the Westchester County Courts our attorneys have the knowledge of the law and experience to provide the best possible DWI defense including collateral consequences of the DWI arrest.

DWI defense attorneys Andrew Proto and David Sachs offer a free initial consultation, will discuss strategy and guide you through the entire process. We help you make an informed decision, proactively work on the defense and ultimately negotiate and argue on your behalf to minimize the impact and consequences that come with a DWI conviction.