DWAI in New York State - Fight Or Deal?

DWAI in New York State - Fight Or Deal?

DWAI, or Driving While Ability Impaired, is a traffic violation in New York State and is covered by Section 1192(1) of the Vehicle and Traffic Law. It is a lower level offense, below the criminal DWI charges. Section 1192(2) is a DWI charge for having a high blood alcohol content (BAC) and 1192(3) is for common law DWI (Driving While Intoxicated) - not based on the BAC.

The easiest way to explain the difference between DWAI and DWI is by thinking about blood-alcohol content. In New York, DWI is typically charged against someone whose BAC is measured at 0.08 or above. If the BAC is measured between 0.05, 0.06, or 0.07, the defendant is usually charged with DWAI. But it's harder to prove than a DWI based on a blood or breath test. In those cases, if a jury believes your BAC is 0.08 or above, then you are guilty.

Section 1192(3) is what's known as "Common Law DWI." For common law DWI, the prosecutor must persuade a jury that you were intoxicated. This is a fuzzy concept and can be confusing to juries, and frankly to police, judges, prosecutors and even defense lawyers.

DWAI is more like the common law DWI. The judge (there is no jury for DWAI because it is not a crime) must be persuaded that your ability to drive was impaired. The difference between intoxicated and impaired is not well defined in the law, adding to the confusion mentioned above. However, the law does state that a BAC of 0.07 is sufficient on its own to prove a charge of DWAI - though it is still possible to defeat the charge on a 0.07. With a 0.06 or 0.05, the prosecutor must submit additional evidence beyond the BAC to show impairment.

In most NY dui laws in New York make it difficult for prosecutors to reduce a DUI charge to something that is not a DUI charge. Because of this, the typical offer in a DWAI case is for the defendant to plead guilty to the charge. In other words, the plea bargain is no bargain. Other than attorney fees, a DWAI defendant has essentially nothing to lose by fighting the case.

We generally encourage our DUI clients to fight the charges, but the argument for this is strongest with DWAI cases, for the reasons detailed above.

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