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Driving While Ability
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
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
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".
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.
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
today. A consultation is free.
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Law Office of Christian de Francqueville PLLC 58 Kent Street, Ballston
Spa, New York 12020 FAX: 1-518-885-2641