Driving While Ability Impaired is a “lesser and included” charge to Driving While Intoxicated, or DWI. The major difference is that Driving While Intoxicated is a crime, a conviction of which will result in a criminal record. A conviction for driving while ability impaired is not a crime but a traffic infraction and will result in no criminal record. You can be charged right from the beginning with DWAI or sometimes end up convicted of “ability impaired” rather than “driving while intoxicated” after a trial when the jury felt that the evidence indicated you were impaired but not intoxicated. Often times when charged with DWI and the state has good evidence of intoxication our goal is to plea bargain down to a DWAI thereby avoiding a criminal conviction and record. 

DWI / DWAI Elements of proof

NY DWI charges can turn on the blood-alcohol content (BAC) indicated by a breathalyzer. Under N.Y. VTL § 1192(2), A BAC of 0.08 means that someone is per se intoxicated. In other words, the motorist could have been driving perfectly safe and proper but were nonetheless driving while intoxicated solely because the blood alcohol content was .08 or greater. Contrast, driving with a BAC is .07 or less is not illegal by itself. Rather, the state must prove the blood alcohol content and that it additionally impaired the ability of the driver to operate the motor vehicle. 

However, the mere fact that a BAC of .08 or greater means that you were per se intoxicated the converse is not true. In other words, while not per se intoxicated at a BAC of .07 or less, the state can still charge the misdemeanor crime of driving while intoxicated. The authority for this is found in NY VTL § 1192(3), called “common law” DWI. This statute preserved the elements required to prove driving while intoxicated before the invention of the breathalyzer. Based on the police officer’s training and experience, the state must prove that you were intoxicated, i.e., that you were drunk.  The state builds its common law case through the results of the officer’s observations of your driving and the results of the standard field sobriety tests. 

DWI / DWAI Penalties

All alcohol related convictions under VTL § 1192, whether a crime or infraction, have 2 levels of punishments – that of which the court sentences you to, and that of which the Department of Motor Vehicles takes against your driving privileges. The court fines for DWAI are lower than that of DWI, however the rest of the potential punishments are identical. Those include license suspensions, court ordered drinking and driving counseling, potential jail sentences, and sentences to probation. The license restrictions and mandatory counseling, remediation, and assessments required from the DMV are identical whether the court finds you guilty of Driving while intoxicated or driving while ability impaired. 

New York State has an enhanced form of probation for DWI or DWAI offenders, called “DWI probation.”  DWI probation is not a sentence a defendant should agree to as part of a reduced plea bargain, as it lasts for 3 years, is very onerous, and results in a high degree of probation violations. Your attorney must be aware of this and must fight to plea bargain not just for a reduction to driving while ability impaired, but also for a sentence that does not include DWI probation.  That is why sometimes when charged with DWI / DWAI it is better to ultimately plead guilty “as charged” for a minimum sentence than take your case to trial and lose control over negotiation of sentence. The theory of having little to lose when not offered a plea to a reduced sentence does not apply to the charges of driving while ability impaired and/or driving while intoxicated.

Put the law on your side by using a former police 

officer to defend you against DWI and DWAI charges

Michael J. Palumbo, a former police officer turned attorney, founded Attack That Ticket to provide affordable, high quality legal representation to New York motorists charged with DWI, DUI, DWAI, speeding license suspensions. We handle misdemeanor and felony DWI cases and DWAI infractions. We have flat fee and hourly rate fee structures to fit your budget. We accept master card and visa, provide a no cost initial phone consultation, and can be reached toll free at 1-877-99-NO TIX (1-877-996-6849).