Drivers in New York are considered intoxicated with a blood alcohol content (BAC) of .08 percent or higher. For drivers of commercial vehicles, the limit is .04 percent. Drivers under the age of 21 are considered intoxicated with a BAC of only .02 percent. A provision also exists under New York DWI laws for officers to charge a motorist whose BAC is between .05 and .07 percent and who is showing signs of impairment such as breaking traffic laws or driving erratically; this charge is known as driving while ability impaired, or DWAI.
Driving under the influence of a controlled substance is also considered a DWI. New York subdivides these into separate charges: DWAI/Drug for driving under the influence of a single drug without the presence of alcohol and DWAI/Combination if alcohol is present in addition to a controlled substance or illegal drug. DWAI charges are similar to a standard DWI, but in some cases, they can carry slightly higher penalties.
New York DWI laws also include an additional aggravated DWI charge that is applied when a driver’s BAC is 0.18 percent or higher. This charge carries a higher mandatory fine on the first offense than a standard DWI charge.
As with most states, New York has an “implied consent” statute in which anyone lawfully arrested by an officer with probable cause to believe they are intoxicated while driving automatically gives their consent to be tested for substances by way of breath, blood, urine or saliva. The type of test you take is at the discretion of the officer and must be conducted no later than two hours after your arrest.
Unlike some other states, refusing to take a breath test is not a criminal charge in and of itself, and you cannot be arrested just for a refusal. However, your license will be automatically suspended for a year, and you will be forced to pay a fine ranging from $500 to $750 depending on whether you have prior refusals. The exception to this is if your DWI caused injury or death to another person. In this case, the officer can get a court order that requires you to submit to testing, and this can be done in minutes by phone or radio.
Police in New York also have wide latitude to place a driver under arrest for probable cause other than blood alcohol content. Once under arrest, the officer can then force you to submit to testing under criminal penalty. Refusal of a test while under arrest can result in up to a year of jail time.
Any form of DWI or DWAI becomes a Class E felony in New York upon the second offense within 10 years. The charge increases to a Class D felony upon the third offense. These felonies carry maximum jail sentences of four and seven years, respectively.
Changes in New York DWI Law in 2009
November 2009 saw the passage of Leandra’s Law in New York, which increased penalties for intoxicated motorists in several ways. Leandra’s Law stipulates that anyone convicted of any sort of DWI charge must install and maintain an ignition interlock device. This device can remain in place for up to a year depending on the severity of the DWI. It also increased penalties across the board for DWIs that occur with a child in the vehicle. Under Leandra’s Law, a first-time offender may be charged with a Class E felony and be sentenced to up to four years in state prison. If serious physical injury to the child occurs, it becomes a Class C felony, and if death of the child occurs, it becomes a Class B felony.