DWI Frequently Asked Questions

Q. Do I need an attorney?

A: Yes. If you are charged with aggravated driving while intoxicated or driving while intoxicated, you have been charged with a crime and are subject to a sentence of up to one year in jail. While it is rare that first time offenders will receive any jail time, if you plead guilty to either of these charges, you will have a criminal record for the rest of your life. Furthermore, there will be ramifications with respect to your driver’s license, insurance, etc.

Q. What help can a lawyer provide for DWI offenses?

A: Lawyers can investigate matters helpful in preparing a defense to obtain alternate punishment, minimize an outcome, or obtain a dismissal. Only an attorney experienced in handling DWI cases can properly evaluate a case to determine whether you have a valid defense that can be used to negotiate a more favorable plea bargain, and on rare occasions, a dismissal.

Q. Is it possible to plea-bargain my case?

A: The vast majority of criminal cases are plea-bargained – many to a lesser charge – in satisfaction of all the charges. Our criminal justice system would come to a screeching halt if the plea bargaining process was discontinued. Plea-bargaining is a necessity in order for our system to work. The following factors are considered in determining whether plea-bargaining is appropriate.

• criminal history
• seriousness of offense
• likelihood of reoccurrence
• strength of the case
• how high is your Blood Alcohol Content (BAC) was
• whether there was a car accident
• whether there were injuries sustained
• driving history
• age of the client
• whether you refused to blow
• defendant’s background
• results of an alcohol evaluation

Q. How does the plea-bargaining process work?

A: Typically the prosecutor and your attorney will discuss the above-referenced factors and any other relevant factors in determining what, if any, offer will be made and accepted. Court approval is required before a plea-bargain can go forward. Your attorney will advise you of any offer that has been made and you would then determine whether it is acceptable after your attorney has described all of the ramifications of accepting the plea bargain. You must also understand that, due to new laws enacted with respect to alcohol related driving offenses, the state has placed certain restrictions on the plea-bargaining process.

Q. What fines and fees can I expect to pay?

A: The fine is set forth in the Vehicle and Traffic Law. As a first time offender, you face the following fines: aggravated driving while intoxicated, between $1,000 and $2,500; driving while intoxicated, between $500 and $750. The Court will also apply a surcharge which ranges from $75 and $190. The Department of Motor Vehicle will also assess a driver’s responsibility assessment of $250 per year for three (3) years. As a first time offender, if you plead guilty to driving while ability impaired by alcohol, the Court will assess a fine between $300 and $500. Of course, you should keep in mind that your insurance rates will likely increase and you will also have to pay an attorney. The range for what an attorney may charge is not discussed here because each case should be evaluated on its own merits. Usually when you are charged with DWI, there is another vehicle and traffic charge that is included such as speeding. That charge will have to be disposed of as well and may result in additional fines and surcharges.

Q. What is the difference between aggravated driving while intoxicated (ADWI) and driving while intoxicated (DWI)?

A. Both Aggravated driving while intoxicated (ADWI) and driving while intoxicated (DWI) are misdemeanors and, if you plead guilty to either charge, you will have a criminal record for the rest of your life. ADWI is charged if your blood alcohol content (BAC) is .18% or more. DWI is charged if your BAC is between .08% and .17%. The penalties for ADWI are greater, including up to one year revocation of your license and a fine between $1,000 and $2,500. Additionally, if you are sentenced to probation as a result of a plea of guilty to ADWI, the court must order that you install and maintain an ignition interlock device in your vehicle.

Q. What is the difference between driving while intoxicated (DWI) and driving while ability impaired (DWAI)?

A: Driving while intoxicated is a misdemeanor and if you plead guilty to this charge, you would have a criminal record for the rest of your life. In order to be found guilty of this charge, the prosecutor must prove beyond a reasonable doubt that you operated a vehicle while intoxicated, or having a BAC of 0.08 or greater. In the event you do not submit to a chemical test of your breath and/or blood, the prosecution can still prove that you were intoxicated based on the police officer’s observations and any admissions you may have made.

A person is guilty of driving while ability impaired by alcohol when their BAC is less than 0.08 and there is evidence that their ability to operate a motor vehicle was impaired at the time that they operated the vehicle.

Q. What about my other non-DWI traffic tickets?

A: Typically they will be resolved at the time the DWI charge is resolved and not before then.

Q. Do I need to appear at court on the date listed on the tickets?

A: If you retain an attorney, he/she will advise you when to appear in court.

Q. What will happen to my driver’s license?

A: If you plead guilty to the charge of ADWI, your license will be revoked for a minimum of 1 year. If you plead guilty to the charge of DWI, your license will be revoked for a minimum of 6 months. In the event that you plead guilty or are found guilty of DWAI, your license will be suspended for a period of 90 days, but you would typically be eligible for a conditional license. To be eligible for a conditional license, you must meet certain eligibility criteria and enter the drunk driving program (DDP).

Q. What is the Drunk Driving Program?

A: In order to be eligible for a license to drive to, from and during work, you must enter and participate in this program. This is a 7-week program (approximately 2 hours per week) run by the Department of Motor Vehicles. It is held in every county in the State of New York. Approximately 1/3 of all participants in the drunk driving program are referred to outpatient alcohol treatment programs that they must complete in order to get their driver’s license back. Typically, when the program is completed, your full driving privileges are restored.

Q. What is the difference between suspension and revocation of a driver’s license?

A: A suspension is temporary and does just that, it suspends the privilege to drive. A suspension will be lifted automatically at the end of the suspension term. A revocation completely revokes the driver’s license. Therefore, the individual must reapply for a driver’s license from the Department of Motor Vehicles.

Q. What happens to drivers who get caught driving while their license is suspended or revoked?

A: Judges can send them to jail, exact large fines, or sentence them to significant community service for this very serious offense.

Q. I received a bill in the mail from the Department of Motor Vehicles for a “Driver Responsibility Assessment.” What is this and do I have to pay it?

A: Effective November 18, 2004, the DMV was given the authority to bill certain drivers for a Driver Responsibility Assessment. If a driver is convicted of an alcohol-related traffic violation that occurred on or after November 18, 2004, or a DMV hearing determines that a driver refused a chemical test on or after November 18, 2004, then the DMV will assess this fee. The fee is assessed each year for a period of three (3) years. The annual assessment for either an alcohol-related violation or a DMV hearing determination that the driver refused a chemical test is $250.00 per year.

Q. When do I have to pay the Driver Responsibility Assessment?

A: You must pay the first year’s assessment within 30 days of the assessment. You can elect to pay all three (3) years at that time or you can pay each year as it is assessed.

Will the case be dismissed if the police officer did not read me my Miranda rights?

A: The arresting officer’s failure to read you what are commonly referred to as Miranda Warnings may be a violation of your constitutional rights but in DWI cases that is rare. Only an experienced attorney can determine whether your rights have been violated.