What is the difference between Driving While Intoxicated & Driving While Impaired?

The distinction is significant. Driving While Intoxicated is an unclassified Misdemeanor offense in violation of Vehicle & Traffic Law §1192 (2) and (3). That is, a conviction for Driving While Intoxicated will leave the operator with a criminal record and expose him to enhanced sentencing for subsequent DWI convictions, including elevation to a felony offense.

A conviction for Driving While Impaired by the consumption of alcohol is a traffic infraction in violation of VTL §1192.1 and not a crime. It will not result in the operator having a criminal record.

The predicate blood alcohol level for the misdemeanor offense of Driving While Intoxicated (VTL §1192.2) was recently lowered from .10% to .08%. A blood alcohol content of at least .05% but less than .07% is evidence that the driver was Impaired by the consumption of alcohol. (VTL §1192.1)

What are the penalties for driving while intoxicated as compared with diving while impaired?

The Driving While Intoxicated statute provides for a sentence up to one year in jail and a mandatory revocation of driving privileges for 6 months. Mandatory fines range from $500.00 to $1000.00. As of September 2003, any person who is convicted of DWI and has a prior DWI conviction within the past 5 years must receive a jail sentence of 5 days, or in the alternative, a 30-day community service sentence.

The Driving While Impaired statute provides for a maximum jail term of 15 days and a mandatory license revocation period of 90 days. Mandatory fines range from $300.00 to $500.00.

What is the effect of refusing the chemical test?

The effect is two fold; first, pursuant to VTL §1194(4)(b), the person's license to drive will be immediately suspended and subsequently revoked for a period of 6 months (second offense, one year). Second, evidence of the refusal will be admissible in any trial, proceeding or hearing so long as the person was warned of the consequences of refusing. In the absence of a compelling reason to refuse the test, this can have a highly prejudicial effect on the outcome of the trial.

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There are a number of legal and ethical issues surrounding this question. One the one hand, declining the test deprives the prosecution of a test score and reduces the case to one of observation only. That is, the odor of alcohol, bloodshot eyes, attitude, balance, speech, general appearance and the like. On the other hand, the penalties for refusal are stiff and although most breath-test instruments give an accurate measurement, they are not incontrovertable.

Also, most District Attorney's Offices have a policy of not offering a plea to the lesser offense of Driving While Impaired to drivers who have refused the test. This is especially true where there has been personal injuries or property damage.

It bears mention that in determining whether to make an arrest, the officer may request the driver to submit to roadside or field sobriety tests.

These tests may consist of either a portable chemical screen known as an Alco-Sensor, or a performance test which is designed to evaluate the drivers' physical agility, and ability to make basic mental calculations.

Refusal to submit to the Alco-Sensor is a traffic infraction, but will not be admissible at trial. Refusal to submit to the performance test will result in an adverse inference charge to the jury that is similar to the chemical test refusal.

Will there be a Video-tape?

The NYPD routinely video-tapes the officers' request to submit to the chemical test. This taping will take place at a precinct within two hours of the arrest. Because the tapes are played for the jury, they provide a unique opportunity for the motorist to establish his innocence.