DWAI in New York State – Fight Or Deal?
DWAI, or Driving While Ability Impaired, is a traffic violation in New York State and is covered by Section 1192(1) of the means and Traffic Law. It is a lower level offense, below the criminal DWI charges. Section 1192(2) is a DWI charge for having a high blood alcohol content (BAC) and 1192(3) is for shared law DWI (Driving While Intoxicated) – not based on the BAC.
The easiest way to explain the difference between DWAI and DWI is by thinking about blood-alcohol content. In New York, DWI is typically charged against someone whose BAC is measured at 0.08 or above. If the BAC is measured between 0.05, 0.06, or 0.07, the defendant is usually charged with DWAI. But it’s harder to prove than a DWI based on a blood or breath test. In those situations, if a jury believes your BAC is 0.08 or above, then you are guilty.
Section 1192(3) is what’s known as “shared Law DWI.” For shared law DWI, the prosecutor must persuade a jury that you were intoxicated. This is a fuzzy concept and can be confusing to juries, and frankly to police, judges, prosecutors and already defense lawyers.
DWAI is more like the shared law DWI. The estimate (there is no jury for DWAI because it is not a crime) must be persuaded that your ability to excursion was impaired. The difference between intoxicated and impaired is not well defined in the law, adding to the confusion mentioned above. However, the law does state that a BAC of 0.07 is sufficient on its own to prove a charge of DWAI – though it is nevertheless possible to defeat the charge on a 0.07. With a 0.06 or 0.05, the prosecutor must submit additional evidence beyond the BAC to show impairment.
In most NY DUI situations, the prosecution will have a few different kinds of evidence. This includes the BAC, uniform field sobriety tests (SFSTs) and the officer’s general observations. The SFSTs suffer from a glaring flaw when it comes to DWAI situations: They are supposed to be a test of whether someone’s BAC is over 0.10. In a DWAI case, the defendant’s BAC is almost always well below 0.10. So if the prosecution tries to prove impairment by saying that the defendant failed the SFSTs, a capable defense attorney can argue that the tests must have been done wrong, since the BAC was truly below 0.10.
An important difference between DWI and DWAI is the licensing consequences if you fight the charges. In DWI situations where the BAC is over 0.08, the defendant’s license will be suspended while the case is pending under the “Prompt Suspension Law.” In DWAI situations, the defendant’s license is not suspended until and unless there is a conviction. For DWI defendants, the prompt suspension law can be very difficult and persuades many defendants (already the innocent) to take a deal. This pressure does not affect DWAI defendants, so it’s easier for the defendant to fight the charges.
Another meaningful detail involves plea bargaining. With most DWI situations, the prosecution will offer a deal where the defendant would plead guilty to a lesser offense – often this method a reduction from DWI to DWAI. But with DWAI situations, there is generally no lesser DUI offense. DWI laws in New York make it difficult for prosecutors to reduce a DUI charge to something that is not a DUI charge. Because of this, the typical offer in a DWAI case is for the defendant to plead guilty to the charge. In other words, the plea bargain is no bargain. Other than attorney fees, a DWAI defendant has essentially nothing to lose by fighting the case.
We generally encourage our DUI clients to fight the charges, but the argument for this is strongest with DWAI situations, for the reasons detailed above.