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Spotlight on Drunk Driving

Spotlight on Drunk Driving

With the holiday season upon us, the best decision you can make is to refrain from drinking and driving. Whether it’s handing over the car keys, designating a driver, or taking a taxi, it’s the right thing to do.

The New York State Stop-DWI Foundation together with the Governor’s office have created the Have a Plan App, which can help you to avoid running into trouble. You can find it at

Bruce Kaye, Esq., offers answers to some of the most frequently asked questions concerning alcohol-related offenses.

What is the difference between Driving While Intoxicated (DWI) & Driving While Impaired (DWAI)?

Driving While Intoxicated is a Misdemeanor offense. Conviction will result in a criminal record and expose the driver to enhanced sentencing for subsequent DWI convictions, including elevation to a felony offense.
A conviction for Driving While Impaired is a not a crime, it is classified as a traffic infraction.

How will the DA prove intoxication?

A Blood Alcohol Concentration of .08 % or more creates a rebuttable presumption that the operator is guilty of DWI. A BAC of at least .05% but less than .07% creates a rebuttable presumption that the operator is guilty of DWAI. The driver’s physical condition and appearance, balance and coordination, manner of speech, the odor of alcohol, the manner in which the vehicle was operated and BAC level, may all be used to prove intoxication.

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

DWI: Up to one year in jail, a mandatory revocation of driving privileges for 6 months, and fines ranging from $500 to $1000. If there is a prior DWI conviction within the past 5 years, a 5-day jail sentence or 30-day community service sentence will be imposed, and enhanced fines and license revocation periods will apply.

DWAI: A maximum jail term of 15 days and a mandatory license revocation period of 90 days. Mandatory fines range from $300 to $500.

What is the effect of refusing the chemical test

Refusing the chemical test can have serious consequences. The driver’s license will be immediately suspended and he will be summoned to a NYS DMV “refusal hearing”. If it is determined that the driver refused the chemical test, his license will be revoked for one year, even if he is ultimately found not guilty of an alcohol-related offense. The refusal is admissible at trial, 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.

Most District Attorney’s offices have a policy of not offering a guilty plea to the lesser offense of Driving While Impaired to drivers who have refused the test, especially where there have been personal
injuries or property damage.

If you have any uncertainty about whether to take the test, request an opportunity to call your attorney. Inform the arresting officer that you are not refusing the test, just requesting advice from your attorney. Police are required to make a “reasonable” effort to contact your attorney at a telephone number that you provide them – as long as it does not interfere with the administration of the breath test within 2 hours of the arrest. Most arresting officers will disallow your request and consider it a refusal, but their disallowance may explain the decision for a refusal of the breath test.

Will there be a Video-tape?

The NYPD routinely videotapes the officer’s request to submit to the chemical test 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 sobriety and/or shed light on his refusal.

Should I speak to the officer?

You should be cooperative, but there is no penalty for limiting conversation to pedigree information. Don’t ramble on. It is not uncommon for a motorist to admit having come from a party or having had one or two drinks. Admissions of this nature will be offered as evidence at trial and where the motorist elects not to submit to the chemical test, will confirm the presence of alcohol.

Once placed under arrest, a clear and unequivocal request to speak with an attorney will effectively invoke the constitutional right to counsel. This right cannot be waived unless the attorney is present and will generally render any subsequent statements inadmissible.

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