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Driving While Ability Impaired DWAI

In New York, DWAI stands for Driving While Ability Impaired.  DWAI is a violation, not a crime like a misdemeanor or felony. However, the difference between a conviction for DWAI and other violations (like speeding tickets) is that the penalties are very harsh for DWAI.  In addtion to significant fines and surcharges, a person convicted will have their license suspended for 90 days for a first offense.

Most convictions for DWAI in New York are the result of a reduced DWI charge. When a DWI charge is reduced by plea bargaining, it is almost always reduced to DWAI. One reason for this is that by law, a prosecutor is prohibited from reducing a DWI charge "out of section". That section being New York Vehicle and Traffic Law  Section 1192. DWAI is codified in section 1192(1). (DWI is found in 1192(2) and 1192(3)).

The problem for people charged with DWAI is that because it is a violation (the lowest offense in the law), there is nothing to reduce it to. That means that most people simply plead guilty to the charge. That is often a mistake. A defendant usually has nothing to lose by taking a case to trial for which no plea bargain is offered. Because DWAI is a violation, a trial is held without a jury and the trial can usually be concluded in a day or less.

A conviction for DWAI requires proof that the defendant was "impaired" by alcohol (to be distinguished from proof of "intoxication" required for DWI). If the BAC is .05% or less, that is proof that the driver was not impaired by alochol and the case should be dismissed. A BAC of .06% or .07% can be used as evidence of impairment, but it is not dispositive proof that the driver was impaired. We do well challenging the accuracy of breath testing and have had good results defending DWAI cases in the past.





We don't see many DWAI cases in my practice. I think one reason may be that because DWAI is a violation, a lawyer is not required to resolve the case. Unlike DWI which is a misdmeanor and requires representation by an attorney. (If you qualify you will be provided with a free public defender in a DWI case but you have to be pretty poor)

I also think that judges inform DWAI defendants that a plea of guilty will not result in a criminal conviction

Most of my DWAI clients admit to having consumed a small amount of alcohol before driving and they are shocked when charged with DWAI.  One or two glasses of wine or beer on an empty stomach and you may be driving while your ability is "impaired".

A DWAI conviction stays on your DMV record for 10 years and can show up on criminal history records as well.  Convictions for alcohol offenses can be embarrassing for many folks and can also be a detriment to opportunity in the job market. 

I always encourage a client charged with DWAI to fight the charge.  Unlike other offenses, almost every DA's office refuses to plea bargain in DWAI cases so there is nothing to lose by fighting.  Your only choice is to plea to the charge, which is crazy!






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The Law Office of Christian de Francqueville PLLC 58 Kent Street, Ballston Spa, New York 12020 FAX: 1-518-885-2641