Consequences of DWI/DUI Charges

In New York State, DUI and DWI are used interchangeably. Vehicle Traffic Law Section 1192-2 provides that if you are driving with a Blood Alcohol Content (BAC) of 0.08% or more, you can be charged with a DWI. [1]If you plead guilty or are convicted of a DWI, the charges you may face are very serious. The charges for a DWI you could face include: (1) a fine ranging from $500.00 to $1,000.00; (2) a $395.00 to $400.00 surcharge; and (3) up to one (1) year in prison. Additionally, your New York Driver’s license could be suspended and depending on the circumstances even revoked. [2]


Vehicle Traffic Law Section 1192-2a provides that if you are driving with a BAC of 0.18% or more, you can be charged with an Aggravated DWI. [3]If you plead guilty or are convicted of an Aggravated DWI the charges you may face include: (1) a fine ranging from $1,000.00 to $2,500.00; (2) a $395.00 to $400.00 surcharge; and (3) up to one (1) year in prison.


Additionally, if a police officer pulls you over and determines that you are exhibiting signs of intoxication, (slurred speech, odor of alcohol, bloodshot eyes, etc.) the officer can charge you with violating the common law, DWI – VTL 1192.3. In these circumstances, an officer is not required to conduct a breathalyzer prior to charging you.


Furthermore, if you have committed a DWI within 10 years of a prior DWI conviction, you can be charged with a felony DWI. [4]



Finally, regardless of the DWI charges, you may be faced to install an ignition interlock device that would not allow you to start your car until you blow into the device and your BAC is within the legal limit. Also, when it comes to your insurance carrier, your car insurance rate could potentially increase or you may even be dropped completely by the carrier. 


Refusing to Participate in Field Sobriety Test Does Not Violate VTL


            When stopped for a DWI, you may be asked to submit to a field sobriety test. A field sobriety test is a number of physical acts which are designed to test a person’s coordination for the purpose of determining intoxication. Some examples of tests include: the finger-to-nose, one-leg stand, walk-and-turn, finger count, and alphabet. If you are asked by a police officer to conduct a field sobriety test, simply say no. A driver is not required under the VTL to submit to a field sobriety test. [5]In People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dep't 1993), the Appellate Division, Fourth Department, held that since “[t]here is no statutory or other requirement for the establishment of rules regulating field sobriety tests,” the police are not required to inform a defendant that he or she has a right to refuse to perform such tests. 192 A.D.2d at 1059, 596 N.Y.S.2d at 245 to 46.


However, the refusal to perform a field sobriety test tests may be admissible against you at trial. In People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999), the Court of Appeals held that “evidence of defendant's refusal to submit to certain field sobriety tests [is] admissible in the absence of Miranda warnings … because the refusal was not compelled within the meaning of the Self-Incrimination Clause.” 92 N.Y.2d at 703, 685 N.Y.S.2d at 907.


But, failing to complete the field sobriety tests successfully provides a stronger inference of intoxication than refusing to take the test outright. Id. (the court noted that “the inference of intoxication arising from failure to complete the tests successfully ‘is far stronger than that arising from a refusal to take the test.’”) 92 N.Y.2d at 706, 685 N.Y.S.2d at 909.


Breath Tests vs. Chemical Tests


            Both breath and chemical tests administered by police officers are important investigative tools to determine whether one is intoxicated while driving. In New York DWI law, a breath test refers to a preliminary breath screening that normally takes place on the side of the road where you were pulled over. [6]On the other hand, a chemical test is an analysis of alcohol and/or drug content of a driver performed with a machine usually at the police station. If you are pulled over and asked to conduct any test, ask whether it is a breath test or chemical test, as your rights and the consequences of refusal are different depending on the type of test you are being asked to perform.


Refusing a Breath Test


The refusal to submit to a breath screening test in violation of VTL § 1194(1)(b) is a traffic infraction. See, VTL § 1800(a); However,VTL § 1194(1)(b), makes clear that a motorist is under no obligation to submit to a breath screening test unless he or she has either (a) been involved in an accident, or (b) committed a separate VTL violation. See below for a list of VTL violations. [7]



Refusing a Chemical Test


A chemical test refusal is considered to be a “first offense” if, within the past five years, the person has neither (a) had his or her driving privileges revoked for refusing to submit to a chemical test, nor (b) been convicted of violating any subdivision of VTL § 1192, or been found to have violated VTL § 1192-a, not arising out of the same incident.[8]


The civil sanctions for refusing to submit to a chemical test as a first offense are:


1.    Mandatory revocation of the person's driver's license, permit, or nonresident operating privilege for at least one year; [9]

2.    A civil penalty in the amount of $500; [10] and 

3.    A driver responsibility assessment of $250 a year for three years.


The information above is intended to provide limited information only and is not legal advice. The laws relating to driving while intoxicated in New York are complex. If you are a party to a matter concerning a DWI, and otherwise need further guidance in this or a related area of law, Singh & Rani, LLP can assist you.


[1]N.Y. Veh. & Traf. Law § 1192-2


[3]N.Y. Veh. & Traf. Law § 1192-2a

[4]N.Y. Veh. & Traf. Law § 1193(1)(c)

[5]Handling the DWI Case in New York § 6:3

[6]Handling the DWI Case in New York § 29:1


[8]N.Y. Veh. & Traf. Law § 1194(2)(d)

[9]N.Y. Veh. & Traf. Law § 1194(2)(d)(1)(a)

[10]N.Y. Veh. & Traf. Law § 1194(2)(d)(2)


Reena Rani

Reena Rani has wide range of legal experience, having worked with largest U.S.A. Municipal Health Care Organization as in house counsel for New York City Hospitals, the Bronx District Attorney’s Office and in house counsel at GEICO she brings her former prosecutorial and defense experience to her current clients.