New York impaired-driving defense

DWI - Driving While Intoxicated

Q: What is the legal limit in New York?

A BAC of .08% or higher is DWI, and a BAC of .18% or higher is Aggravated DWI. A driver can be charged with DWAI with a BAC below .08% if their ability to drive was impaired.

Q: Will I lose my license after a DWI arrest?

Often, yes. If your BAC was .08% or higher, your license will usually be suspended at arraignment while the case is pending. If you refused a chemical test, your license will be suspended until the DMV refusal hearing. A hardship or conditional license may be available in some cases.

Q: Should I refuse a breath test?

A refusal leads to a one-year license revocation and a civil penalty, and it can be used as evidence against you. Whether refusing helps or hurts depends on the circumstances. If you have already refused, talk to a lawyer before the DMV hearing.

Q: Is a DWI a criminal record in New York?

Yes. A DWI is a misdemeanor or, in some cases, a felony, so a conviction creates a criminal record. A DWAI is a traffic infraction and is not a crime, but it remains on your DMV driving record, counts as a prior offense, and is not automatically sealed.

Q: Can a DWI be reduced?

In many cases, a DWI can be reduced to DWAI through negotiation, depending on the evidence and the driver's history.

A DWI arrest in New York starts a criminal case and can also affect your driver's license right away. Whether a separate DMV proceeding follows depends on the circumstances: a chemical test result of .08% or higher generally leads to a license suspension at arraignment while the case is pending, and refusing a chemical test leads to a separate DMV refusal hearing. The outcome also depends on the specific charge and your driving record.

At Sharifov & Associates, PLLC, we defend drivers charged with DWI and related offenses in New York City and on Long Island. This page explains the types of impaired driving charges in New York, the penalties, what happens if you refuse a chemical test, and how DWI charges can be defended.

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Types of Impaired Driving Charges in New York

New York has several impaired driving offenses, ranging from a traffic infraction to a felony:

Driving While Ability Impaired (DWAI) by alcohol: your ability to drive was impaired by alcohol "to any extent." It is typically charged when a driver's blood alcohol content (BAC) is more than .05% but less than .08%, or when there is other evidence of impairment. A first DWAI is a traffic infraction, not a crime.

Driving While Intoxicated (DWI): a BAC of .08% or higher, or intoxication shown by other evidence, such as the officer's observations. A first DWI is a misdemeanor.

Aggravated DWI: a BAC of .18% or higher. A first offense is a misdemeanor with higher penalties.

DWAI by drugs: driving while impaired by a drug, which under New York law includes cannabis and can include prescription medications. A first offense is a misdemeanor.

DWAI by a combination of drugs, or of alcohol and drugs: a misdemeanor for a first offense.

Aggravated DWI with a child (Leandra's Law): DWI, or driving while impaired by drugs or a combination of drugs and alcohol, with a child 15 years old or younger in the vehicle. This is a felony, even for a first offense.

Lower limits for some drivers. Commercial drivers can face an impaired-driving charge at a BAC of .04% or more while operating a commercial vehicle. Drivers under 21 are subject to New York's Zero Tolerance law, which applies to a BAC as low as .02%.

How Prosecutors Try to Prove Impairment

Chemical tests. The most common evidence is a breath test at the police station. Blood tests are also used, especially in drug cases and crashes. A BAC of .08% or higher is itself a DWI offense, but a test result is not automatic proof. Results can be challenged based on how the test was given, how the machine was maintained and calibrated, the timing of the test, and whether proper procedures were followed.

Field sobriety tests. Police often ask drivers to perform roadside tests. The three standardized tests are the horizontal gaze nystagmus (eye) test, the walk-and-turn, and the one-leg stand. Officers sometimes also use non-standardized tests, such as reciting the alphabet, counting backwards, or touching a finger to the nose. These tests are subjective, and performance can be affected by nerves, fatigue, footwear, weather, road conditions, age, weight, and medical conditions.

Other evidence. Prosecutors also rely on the officer's observations (such as the odor of alcohol, bloodshot eyes, or slurred speech), the driving that led to the stop, statements made by the driver, police body camera and dashboard camera video, and witness accounts.

Refusing a Chemical Test

Under New York's implied consent law, anyone who drives in New York is considered to have agreed to a chemical test if lawfully arrested for DWI. A driver can still refuse, but a refusal carries its own serious consequences, separate from the criminal case:

At arraignment, the judge will suspend the driver's license until a DMV refusal hearing. If the DMV does not hold the hearing within 15 days of the arraignment, the license must be reinstated until the hearing takes place.
At the DMV refusal hearing, an administrative law judge decides four questions: whether the officer had reasonable grounds to believe the person was driving while impaired or intoxicated, whether the arrest was lawful, whether the driver was clearly warned of the consequences of refusing, and whether the driver actually refused.
If the refusal is upheld, the license is revoked for at least one year, and the driver must pay a $500 civil penalty for a first refusal. Penalties are higher for commercial drivers and for drivers with a prior refusal or DWI-related charge within five years.
Missing the DMV hearing is treated as a waiver and results in revocation.
A refusal can be used as evidence against the driver in the criminal case.

Why the DMV refusal hearing matters. The refusal hearing is often the first time the arresting officer testifies under oath about the stop and arrest. An experienced attorney can use the hearing both to fight the revocation and to lock in the officer's testimony, which can be valuable later in the criminal case. Drivers should not attend this hearing without a lawyer.

Roadside tests are different. Declining a roadside field sobriety test does not trigger the refusal revocation. Refusing a preliminary roadside breath screening is a traffic infraction. The one-year revocation applies to refusing the chemical test after arrest.

License Suspension at Arraignment

In most DWI cases where a chemical test showed a BAC of .08% or higher, the judge will suspend the driver's license at arraignment while the case is pending. In some cases, the defense can request a prompt hearing for a hardship license, which allows limited driving, such as to and from work. (Learn more: Arraignment)

New York DWI Penalties: First Offense

Offense	Fine	Maximum jail	License	Ignition interlock
DWAI (alcohol), traffic infraction	$300–$500	15 days	Suspended 90 days	Not required
DWI (.08% or higher), misdemeanor	$500–$1,000	364 days	Revoked at least 6 months	Required
Aggravated DWI (.18% or higher), misdemeanor	$1,000–$2,500	364 days	Revoked at least 1 year	Required
DWAI by drugs, misdemeanor	$500–$1,000	364 days	Revoked at least 6 months	Not automatically required
DWAI by combined drugs or alcohol and drugs, misdemeanor	$500–$1,000	364 days	Revoked at least 6 months	Not automatically required
Aggravated DWI with a child (Leandra's Law), class E felony	$1,000–$5,000	4 years	Revoked at least 1 year	Required when alcohol is involved
Zero Tolerance (under 21, .02%–.07%)	$125 civil penalty and $100 fee	None	Suspended 6 months	Not required

Other costs and consequences of a conviction:

Mandatory surcharges: state surcharges and fees are added to every fine, currently $395 for an alcohol-related misdemeanor and $520 for a felony.

Driver Responsibility Assessment: a DMV fee of $250 per year for three years ($750 total) for any alcohol- or drug-related driving conviction, including DWAI, and for a chemical test refusal.

Ignition interlock device: a DWI conviction requires an ignition interlock device on any vehicle the person owns or operates, generally for at least 12 months. The requirement may end after 6 months with proof of compliance, unless the court orders a longer period.

Probation or conditional discharge: a DWI sentence usually includes probation or a conditional discharge, with conditions such as an alcohol evaluation, treatment if recommended, and attendance at a victim impact panel.

Conditional license: many first-time offenders can qualify for a conditional license by enrolling in New York's Impaired Driver Program (IDP), which allows driving for limited purposes such as work and medical appointments.

DWI history

Repeat Offenses

Penalties increase sharply with prior convictions:

A second DWI or drug-impaired driving offense within 10 years is generally a class E felony, punishable by up to 4 years in prison, fines of $1,000 to $5,000, and at least a one-year license revocation.
A third within 10 years is generally a class D felony, punishable by up to 7 years in prison and fines of $2,000 to $10,000.
A second DWAI within 5 years carries a fine of $500 to $750, up to 30 days in jail, and at least a six-month revocation. A third DWAI within 10 years is a misdemeanor.
Three or more alcohol- or drug-related convictions or refusals within 10 years can lead to permanent license revocation. The DMV may also look back as far as 25 years when deciding whether to relicense a repeat offender.

(Learn more: Felony)

DWI Involving an Accident or Injury

When an impaired driving arrest involves a crash that causes serious injury or death, prosecutors may bring felony charges such as vehicular assault or vehicular manslaughter, which carry state prison sentences. These cases require an immediate and thorough defense investigation, often including accident reconstruction.

Special Concerns for Commercial Drivers, Young Drivers, and Non-Citizens

Commercial drivers (CDL): a DWI conviction or a chemical test refusal generally disqualifies a CDL holder for at least one year, even if the arrest happened in a personal vehicle.

Drivers under 21: a DWI or refusal carries longer license revocations, and even small amounts of alcohol can lead to a Zero Tolerance suspension.

Non-citizens: a DWI conviction can create immigration problems, especially with multiple convictions, drug-related charges, or aggravating factors. Get advice on immigration consequences before accepting any plea.

Licensed professionals: nurses, teachers, taxi and rideshare drivers, and other licensed professionals may have reporting obligations or face disciplinary action.

How DWI Charges Can Be Defended

Every DWI case is different. Common areas of defense include:

The traffic stop: police must have a lawful reason to stop the vehicle. If the stop was unlawful, the evidence that followed may be suppressed.
Probable cause for the arrest: the officer must have had enough evidence to justify the arrest.
The chemical test: the machine's maintenance and calibration, the operator's certification, the observation period before the test, and the timing of the test can all be challenged.
Field sobriety tests: how the tests were given, whether they were standardized, and whether other factors explain the driver's performance.
Operation of the vehicle: the prosecution must prove the person was actually driving or operating the vehicle.
Video evidence: body camera and dashboard camera footage can contradict the officer's account.
Refusal warnings: in refusal cases, whether the warnings were clear and properly given.

Plea negotiations in DWI cases. New York law limits plea bargaining in DWI cases. A DWI charge generally can't be reduced to a non-alcohol offense, such as reckless driving, unless the prosecutor finds a problem with the evidence. A common negotiated outcome is a reduction from DWI, a misdemeanor, to DWAI, a traffic infraction. A DWAI is not a crime, so it is not a criminal conviction. It still carries a fine, a 90-day license suspension, and the Driver Responsibility Assessment, and it counts as a prior offense if you are charged again. Unlike most non-criminal convictions, a DWAI is not automatically sealed, so the court record of the case may remain visible.

Official sources: VTL § 1192 · VTL § 1193 · CPL § 160.55 · DMV driving-record information.

First steps

What to Do After a DWI Arrest

Contact a DWI defense attorney immediately. The arraignment and the DMV refusal hearing happen quickly.
Don't miss any court date or DMV hearing. Missing a DMV refusal hearing results in automatic revocation.
Write down everything you remember about the stop, the tests, and the arrest while it is fresh.
Keep your paperwork, including any refusal report, tickets, and DMV notices.
Don't discuss the case on social media or with anyone other than your attorney.
Ask your attorney about early steps, such as an alcohol evaluation, which may help in negotiations and at sentencing.

Sharifov & Associates, PLLC

Why Choose Sharifov & Associates, PLLC

Experience defending DWI cases in NYC Criminal Court and in Nassau and Suffolk courts

Representation at both court and DMV hearings, including refusal hearings

Offices in NYC and Long Island, close to the courts where our clients' cases are heard

Criminal and immigration experience under one roof, which is essential for non-citizen drivers

DWI questions

Frequently Asked Questions

What is the legal limit in New York?

Will I lose my license after a DWI arrest?

Should I refuse a breath test?

Is a DWI a criminal record in New York?

Can a DWI be reduced?

Can I get a DWI for driving high on marijuana in New York?

Yes. Cannabis is legal for adults 21 and older, but driving while impaired by it is a crime. It is charged as Driving While Ability Impaired by Drugs (DWAI-Drugs), a misdemeanor punishable by up to 364 days in jail, a fine of $500 to $1,000, and at least a six-month license revocation. Unlike alcohol, New York has no legal THC limit. Prosecutors rely on the officer's observations, a drug recognition evaluation, blood or urine tests, and your statements, all of which a defense attorney can challenge.

How long does a DWI stay on your record in New York?

A DWI conviction is a criminal conviction and remains on your criminal record unless it is sealed. Under New York's Clean Slate law, many misdemeanor convictions will be sealed automatically three years after sentencing or release, if eligibility conditions are met (for example, no new conviction and not currently on probation or parole), once implementation is completed by November 2027. Certain agencies can still see sealed records. A DWI also remains on your DMV driving record for years, counts as a prior offense for 10 years if you are charged again, and can be considered by the DMV for up to 25 years when deciding whether to relicense a repeat offender.