new york vehicle and traffic law 1192 1 driving while ability im

New York’s DWI Law – Driving While Ability Impaired

New York State’s Vehicle and Traffic Law section 1192.1 prohibits driving while ability impaired, commonly referred to as “DWAI.” This law makes it illegal to operate a motor vehicle while your ability is impaired by alcohol or drugs, even if your blood alcohol content is below the 0.08% threshold for the more serious Driving While Intoxicated (DWI) charge.
DWAI is a traffic infraction, not a crime, but it still carries serious penalties like fines, license suspension, and potential jail time for repeat offenses. Let’s take an in-depth look at New York’s DWAI law – what it means, how it’s enforced, penalties, and strategies for fighting the charge.

What Does New York Law Consider “Impaired” Ability?

The key language in VTL 1192.1 states that “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.”
¹

So what does it mean for your driving “ability” to be “impaired” by alcohol? The law does not specify a blood alcohol content (BAC) threshold. Instead, impairment is determined through field sobriety testing and officer observation. Signs of impairment may include:
²

Difficulty following instructions
Swaying, unsteady balance
Slurred speech
Bloodshot or glassy eyes
Slow reactions and reflexes
Studies suggest that impairment often begins at a BAC around 0.05%, but there is no hard cutoff. Individual reactions to alcohol vary. Even at lower BAC levels like 0.02-0.04%, many people exhibit some mild impairment that could justify a DWAI charge.

How DWAI Differs from DWI

New York’s DWI law, VTL 1192.2, prohibits driving with a BAC of 0.08% or higher. This is a “per se” violation, meaning the BAC alone establishes intoxication, regardless of your outward behavior.
DWAI under 1192.1 requires evidence of actual impairment, not just a BAC number. However, having a BAC above 0.05% but below 0.08% creates a “rebuttable presumption” of impairment. This means the chemical test alone is legally sufficient to prove impairment unless you provide evidence to rebut it.
³

While DWAI is not considered as severe as DWI, it still carries up to a $500 fine, up to 15 days in jail, a 90-day license suspension, and surcharges of $260-$395 per year for three years.
⁴
Penalties increase for repeat offenses within five years.

DWAI Drugs Charges

In addition to alcohol impairment, VTL 1192.1 also prohibits driving while impaired by any drug, legal or illegal. This is known as “DWAI-Drugs.”
The same kinds of field sobriety tests used for alcohol impairment may be used to assess drug intoxication – balance, coordination, pupil size, pulse rate, and behavioral indicators. Drug recognition experts (DREs) can also examine signs like blood pressure and muscle tone to identify categories of drugs.
⁵

For DWAI-Drugs, there is no BAC-equivalent measurement. The prosecution must prove actual observable impairment caused by drug consumption. Defenses often challenge the officer’s subjective judgments of impairment.

Enforcement Through Traffic Stops and Checkpoints

Suspected DWAI often arises through everyday traffic stops for speeding, illegal turns, or other vehicle infractions. If an officer notices signs of impairment like slurred speech or bloodshot eyes, they may conduct field sobriety testing.
Refusing to perform standard field tests like standing on one leg or walking a straight line may lead to automatic license suspension in New York. Chemical testing may include a preliminary roadside breath test and/or more reliable evidentiary breath, blood, or urine test after arrest.
DWAI arrests also frequently occur at DWI checkpoints or saturation patrols. At checkpoints, all drivers are briefly screened for signs of impairment. Officers can then pull over drivers for further investigation if impairment is suspected.
Civil rights advocates have criticized DWI checkpoints as overly intrusive and a violation of the 4th Amendment. But the U.S. Supreme Court has upheld their constitutionality provided they adhere to strict guidelines.
⁶

Penalties for DWAI Convictions

A first DWAI offense carries these standard penalties:
Up to $500 fine plus $260/year in surcharges for 3 years
90-day license suspension
Up to 15 days jail
Possible ignition interlock requirement
Penalties escalate for repeat DWAI convictions within 5 years or a prior DWI conviction within 10 years. A second DWAI within 5 years becomes a misdemeanor with fines up to $750 and jail up to 30 days. A third or subsequent offense can bring fines up to $1,500 and jail up to 180 days.
Hard license suspensions also extend from a minimum of 6 months up to a full year. Multiple offenses require more years of interlock mandates. Jail time is not mandatory for DWAI but commonly imposed for aggravated cases.

Long-Term Consequences

Beyond the immediate fines and license suspension, a DWAI conviction stays on your New York driving record for 10 years and can increase insurance premiums for years. It also counts as a prior offense that enhances penalties for any subsequent alcohol or drug driving offense.
Multiple DWAI offenses on your record can negatively impact employment requiring driving, trigger intervention programs, or even lead to felony charges if serious accidents result. Out-of-state drivers may face impacts in their home state under interstate license compacts.

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Fighting DWAI Charges

With so much at stake, it’s imperative to mount the strongest defense possible against DWAI charges. Here are some key strategies to fight the charges:
Challenge the Stop
If there was no legitimate reason for the traffic stop in the first place, the whole case could potentially be thrown out due to an illegal seizure under the 4th Amendment. Any minor technical error in the police report on the cause for the stop could create reasonable doubt.
Contest Field Sobriety Tests
The officer’s observations during out-of-car testing provide the primary evidence of impairment. But field sobriety tests have been proven unreliable, with a 32% error rate in one study. Factors like weather, terrain, injuries, or nervousness often affect results.
Dispute Chemical Test Results
Breathalyzers have a +/- 0.01% margin of error. Proper procedures must be proven for results to be admissible. The defense can scrutinize calibration, maintenance, technician training, and other factors to possibly suppress results.
Question Drug Recognition Evidence
Drug recognition examiner (DRE) opinions involve considerable subjectivity. The defense can challenge their expertise, accuracy, and whether alleged indicators actually demonstrate impairment.
Raise Medical Conditions
Many medical conditions like inner ear disorders can mimic signs of intoxication during field testing. Diabetes, acid reflux, and other issues can also create false high breath test results.
Negotiate Plea Reductions
Prosecutors frequently reduce DWAI charges to non-alcohol offenses like reckless driving to avoid license suspensions. Deferred prosecution agreements may allow charges to be dismissed after treatment.

DWAI Laws Keep Evolving

New York’s DWAI laws continue to be revised and expanded by the legislature. Recent changes include:
Leandra’s Law – Increased penalties for all DWI/DWAI charges when passengers under 16 are in the vehicle.
Additional Screening Tests – Officers can now also request saliva tests, not just breath tests, after stops.
Repeat Offender Felonies – Repeat DWAI offenders now face possible felony charges and jail up to 4 years.
The climate around all impaired driving charges has become increasingly strict in New York and nationwide. An experienced DWI defense attorney is essential to navigate the complex and evolving laws.

Get Experienced Legal Help

Due to the severe and long-lasting consequences, it is critical to get experienced legal representation if you are facing DWAI charges. An attorney can thoroughly analyze the arrest details to build the strongest defense.
They can also advise if pleading down to reduced charges or pre-trial diversion programs may be an option. For the best chance at avoiding harsh penalties, contact a local criminal defense lawyer as soon as possible after a DWAI arrest. With sound legal advice, many drivers are able to get charges reduced or dismissed entirely.
Don’t let an impaired driving charge derail your future. Get the help you need from an attorney well-versed in New York’s Vehicle and Traffic Laws. There are always defenses and alternatives to avoid the worst outcomes. With an aggressive defense, you can move forward with your driving privileges intact.

References

1
https://ypdcrime.com/vt/article31.php#t1192-1
2
https://www.tilemlawfirm.com/new-york-vehicle-1192-1-driving-while-ability-impaired-by-alcoho.html
3
https://www.nycourts.gov/judges/cji/3-VTL/VTL_1192/1192%281%29.pdf
4
https://dmv.ny.gov/tickets/penalties-alcohol-or-drug-related-violations
5
https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/sfst_full_instructor_manual_2018.pdf
6
https://www.oyez.org/cases/1989/88-1897
https://ypdcrime.com/vt/article31.php#t1192-1
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3077246/
https://www.nysenate.gov/legislation/laws/VAT/1192
https://dmv.ny.gov/alcohol-drug-use
https://www.nysenate.gov/newsroom/press-releases/michael-gianaris/senate-majority-passes-legislation-crack-down-repeat-dwi