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