DWI vs DWAI in New York
Attorney Advertising
New York does not have one drunk driving charge. NY VTL § 1192 contains several, and the letters on the ticket decide what the prosecution must prove. DWAI means driving while ability impaired. DWI means driving while intoxicated. The difference is the level of proof: impairment is the lower standard, and intoxication is the higher one. The statute sets a blood alcohol concentration of 0.08 or more as DWI for a non-commercial driver, and 0.18 or more as aggravated DWI. It also allows a DWI charge with no test number at all, based on the evidence of intoxication. Separate subdivisions cover impairment by drugs and by a combination of alcohol and drugs. A first DWI is a misdemeanor, and a prior conviction within 10 years makes a new charge a felony. Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is admitted in New York. Call (888) 437-7747 to schedule a consultation.
The charges inside NY VTL § 1192
| Subdivision | Common name | What the statute covers |
|---|---|---|
| § 1192(1) | DWAI (alcohol) | Operating a motor vehicle while impaired by alcohol |
| § 1192(2) | DWI, per se | Intoxicated, with a BAC of 0.08 or more for a non-commercial driver |
| § 1192(2-a) | Aggravated DWI | BAC of 0.18 or more |
| § 1192(3) | DWI, common law | Intoxicated, regardless of BAC |
| § 1192(4) | DWAI (drugs) | Impaired by drugs |
| § 1192(4-a) | DWAI (combination) | Impaired by combined alcohol and drugs |
Why the subdivision matters
Each subdivision is proved in a different way.
- A per se DWI under § 1192(2) rests on the test number. The reliability of the test is the center of the case.
- A common-law DWI under § 1192(3) rests on observation. The officer’s account of driving, speech, balance, and behavior carries the case, and it can be charged even when there is no test result.
- A DWAI under § 1192(1) asks only whether alcohol impaired the driver’s ability. It is the lesser alcohol charge in the statute.
- Aggravated DWI under § 1192(2-a) depends on a reading of 0.18 or more.
A single stop often produces more than one of these charges on the same set of tickets. Reading the subdivisions correctly is the first step in understanding the exposure.
When a DWI becomes a felony
A first DWI is a misdemeanor. A prior conviction within 10 years changes a new charge to a felony. Any earlier record should be collected and checked before the first court date.
How Mr. Sris and the Firm’s Of Counsel Attorneys Handle New York DWI and DWAI Charges
The review begins with the charging documents and the exact subdivisions listed. The reason for the stop, the officer’s observations, the testing procedure, and the result are compared with what each subdivision requires. Prior history is confirmed early because of the 10-year rule. The client then receives a plain explanation of each charge and of the difference between an impairment finding and an intoxication finding.
Frequently asked questions
What does DWAI stand for in New York?
Driving while ability impaired. NY VTL § 1192 has DWAI subdivisions for alcohol, for drugs, and for a combination of the two.
What BAC is DWI in New York?
A BAC of 0.08 or more for a non-commercial driver under § 1192(2).
What is aggravated DWI in New York?
A BAC of 0.18 or more under § 1192(2-a).
Can you be charged with DWI without a breath test?
Yes. Section 1192(3) covers intoxication regardless of BAC.
Is a DWI a felony in New York?
A first DWI is a misdemeanor. With a prior conviction within 10 years, a new charge is a felony.
I live outside New York. Do I still have to deal with the charge?
Yes. The charge stays in the New York court where it was filed. Speak with a lawyer admitted in New York before the first court date. Call (888) 437-7747.
About the attorney
Mr. Sris founded the firm in 1997 and is a former prosecutor. He is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. Mr. Sris and the firm’s Of Counsel attorneys have documented 4,739+ case results across all practice areas since 1997. Results may vary; prior outcomes do not guarantee a similar result. Case results depend on a variety of factors unique to each case.
Principal office: 4008 Williamsburg Court, Fairfax, VA 22032. By appointment. Call (888) 437-7747 to schedule.
Related pages
Attorney advertising. Prior results do not guarantee a similar outcome.