Interviewer: When you’re arrested for a DWI, what exactly are the charges?
Stuart: Normally, when you’re charged with DWI there’s usually another charge that goes along with it, which is the probable cause for them to pull you over. That is usually just a traffic ticket as well as the charge of driving while intoxicated.
Your Blood Alcohol Content (BAC) Determines the Level of the Charge
Once you have both those charges, depending on the BAC limit, if it’s .08 or above, you will be charged with driving while intoxicated. If the content is .08, then you’ll be charged with driving while ability impaired by alcohol. One is a crime, and one is simply an infraction in New York State, it’s not a crime.
Out-of-State Drivers Are Subject to the Penalties of Their Home State
The charges are complicated and confusing depending on if you hold a different driver’s license in a different state. For example, New Jersey doesn’t have driving while ability impaired, but they only have a driving while intoxicated. Even though it’s not considered a crime here, you will have it seen as a crime in New Jersey and you will be subject to all the penalties in New Jersey that go along with a driving while intoxicated even though you were not found guilty of that.
Also, people who are driving while intoxicated or driving while ability impaired can exclude you from getting into Canada or leaving the country in other states. Canada is very strict on these charges and is also very close to our border, so it’s an interesting situation. They can deny you entrance based on a driving while ability impaired because, again, it’s not a crime in New York but it is in Canada because they perceive it as a crime.
If Your BAC is .08 or Above, You Will Be Charged Under the Vehicle and Traffic Code
Interviewer: When you’re arrested for a DWI, what literally are you charged with? What’s the statute in New York that you’re charged with if your blood alcohol is .08 or above?
You Will Be Charged Based Upon the Arresting Officer’s Observations and the Result of the Breathalyzer Test
Stuart: It would be charged under the vehicle and traffic law, not the penal law, and it starts under 11.92.3 or 11.92.4 or 11.92.2. There is a charge based upon the arresting officer’s observation and one for the result of the Breathalyzer test.
Interviewer: Will most people be charged with two different crimes? One is a separate charge for the officer’s observation and another charge for having a blood alcohol level above .08?
Stuart: Exactly. If you take the Breathalyzer test you will be charged with both the test reading as well as the officer’s observation.
If You Are Arrested for DWI in New York, Your Driver’s License Will Be Suspended
Interviewer: What will happen if you’re arrested for a DWI? Will they suspend your license? How does that work?
Stuart: If you’re arrested for DWI, they will suspend your license. They can suspend it under two different theories. One is the Judge at your arraignment based on a principal theory, can order the suspension and if he or she does that, then you have to reapply through him or her to get your license back.
You May Apply For a Conditional License
Most people, however, will get their license suspended based on the 11.92.8 statute which, in essence, says that your license will be suspended for 30 days and after 30 days you can apply for what they call a conditional license, the condition in essence being that you can use it for work or for medical purposes.
If You Are Convicted During Your Criminal Case, Your License Will Be Re-Suspended
You go through the Department of Motor Vehicles and you apply for that license. Now, even though your conditional license has been approved, when you finally finish your case and if you plead guilty to or you are found guilty, your license will then be re-suspended under a statute for post conviction.
If Your License is Re-Suspended, You May Apply Again For a Conditional License
However, you can also apply for what they call a conditional license post conviction also. So, in essence, you can get one pre conviction suspension and one post conviction suspension after about 30 days.
Interviewer: What happens if you don’t know to apply for a conditional license or they turn you down? How long will it be suspended before a conviction?
Post Conviction: Your License Could Be Suspended for 90 Days to Six Months. For Refusing the Breathalyzer Test: A One Year Suspension
Stuart: For a conviction of driving while intoxicated, your license, depending on what the circumstances are, whether it’s your first one or your second one, will be suspended normally for six months; and for a driving while ability impaired, your license can be suspended for 90 days. If you refuse to take the Breathalyzer test, they will suspend your license for one year based on a refusal of the test, not based on either of those convictions.