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The state of New York uses the acronym DWI to refer to “Driving While Intoxicated” and DWAI for “Driving While Ability Impaired”. These concepts are part of what can be thought of as a “Driving While . . .” section under New York Vehicle & Traffic Law 1192.

New York state laws describe DWI as instances in which an intoxicated person operates a motor vehicle. “Intoxication” functions in some ways as a legal term of art, as does “operation”. Instances of DWAI occur when a person in New York state operates a motor vehicle while in any impaired condition.

“Operation” as a legal term of art refers to the fact that a vehicle which an intoxicated or ability impaired person is operating does not have to be moving. This means that operation can be used to describe a situation where you have the keys in a vehicle and the car is running, even if it is parked.

It is not uncommon for people to find themselves as the subject of a traffic incident in which the car either isn’t moving or they are not even in a vehicle. In some cases, people can be arrested for driving while ability impaired when the vehicle in question isn’t running at all.

What comes into play in a DWI or a DWAI are in large part the circumstances of what a person or motorist might tell the police officer, such as admitting that they were or were not driving, and many other similar statements.

How Is DWAI Different From A DWI Or DUI In New York State?

The difference of DWAI from DWI or DUI is, in some sense, a matter of degrees.

The key word to consider in these charges would be “impaired” as opposed to “intoxicated”. When a person is impaired it means that their ability to operate a motor vehicle is impacted, however slightly, by whatever substance they may be under. This designation of being “impaired” denotes a lesser degree of handicap than “intoxication”.

Additionally, in terms of intoxication, as it relates to a DWI, there is a “per se” component in New York state laws. “Per se” is a Latin phrase which translates to “in itself” and means in legal terms that a violation is inherently illegal, without any added circumstances.

These laws dictate that if you submit to a Breathalyzer, blood, or urine test and the result of the test shows a 0.08% blood alcohol concentration level, it is immediately considered to be a “per se” DWI in New York state.

It is important to note, a DWAI charge constitutes driving while ability impaired by drugs of any kind, be they either illicit drugs or drugs legally prescribed by a medical professional.

To be charged with DWAI, your condition only has to be that you are impaired to any extent and you do not necessarily have to be intoxicated. This is what differs between driving while ability impaired (DWIA) by drugs, which is a misdemeanor, and driving while intoxicated, which is by alcohol and it’s a misdemeanor as well.

Is DWI Or DUI Charged As A Felony Or Misdemeanor Under New York State Law And What Difference Is This Going To Make To My DUI Or DWI Charge In Orange County?

If you’re charged with a DWI in New York State, it is typically considered to be a misdemeanor. However, there are certain factors and components that might affect your case and change your offense to a felony charge.

For example, if someone was seriously injured or killed in connection with a DWI, it will almost always become a felony offense. Vehicular manslaughter or vehicular assault can be considered a negligent homicide if you’re under the influence of, or impaired by any substance and someone is killed.

If there is a person in the vehicle that is less than 16 years of age and you are operating a motor vehicle while in an intoxicated condition, a misdemeanor DWI becomes a felony due to “Leandra’s Law” in New York state.

In any “regular” DWI case, when a person is driving and has a blood alcohol content of 0.08% or more, it will typically be considered a misdemeanor charge. However, if some of the underlying conditions or factors are present in the case such as are mentioned above, it can bring a DWI charge up to a felony.

Another factor that can change the degree to which you are charged with a DWI has to do with your driving record. If you are convicted of a DWI and you are arrested for DWI again at any time within the following 10 years of your initial conviction, the second DWI arrest will be charged as a felony.

In New York State there is also a charge of aggravated DWI. This is also a misdemeanor level offense, and refers to when a person is operating a motor vehicle and their blood alcohol concentration is 0.18% or more.

Aggravated DWI is only a misdemeanor charge, assuming other components, such as the factors mentioned above, are not present. However, an aggravated DWI does come with enhanced penalties such as a person’s license being revoked for an increased period of time.

Under regular circumstances, such as a misdemeanor DUI, a person’s license will typically be revoked for a period of six months. However, in the case of an aggravated DUI, a license will typically be revoked for the period of a year.

What Are Some Of The Aggravating Factors That Would Enhance A Driving While Intoxicated Or Driving Under The Influence Charge To A Felony Under New York State Law?

In New York, there are a variety of aggravating factors that can enhance a DWI or DUI to a felony charge.

Under Leandra’s Law, it is a felony level charge to have a passenger in the vehicle who is 15 years of age or younger at the time that you are operating the vehicle while in an intoxicated condition. Leandra’s Law was passed in 2009 and is named after an 11-year-old girl who was killed in a motor vehicle accident while she was a passenger in the vehicle of a person who crashed due to being under the influence of alcohol. This piece of legislation, formally known as the Child Passenger Protection Act, was born out of that tragic incident.

If, while operating a motor vehicle in an intoxicated condition, there is an accident in which someone is seriously injured or killed. This type of situation can raise a DWI case to a felony level charge.

If you have had a DWI conviction and are subsequently arrested for DWI a second time within 10 years of that conviction, the second arrest will be charged as a felony.

Driving while intoxicated and driving while ability impaired by drugs are both misdemeanor level offenses individually. However, if you are impaired by both alcohol and narcotics at the same time it may affect the way your case may be handled.

For more information on DUI In New York, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 533-0265 today.

Randall Inniss, Esq.

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