Practice · DWI and DUI
A DWI arrest in Nassau County starts two separate cases at once: a criminal prosecution in court, and a Department of Motor Vehicles proceeding that can take your license on its own schedule regardless of what the court does. The Toner Law Firm defends both. James E. Toner has tried DWI cases for more than thirty years. The first consultation is free.
The part most people miss
This is the single most common and most expensive misunderstanding in a New York DWI. They are separate proceedings, in separate forums, decided by separate people, on separate timelines.
Track one · Criminal court
Brought by the District Attorney in the court with jurisdiction over where the stop happened. In Nassau County that is usually the District Court at 99 Main Street in Hempstead, or a local town or village court. A felony DWI moves to Nassau County Court in Mineola after indictment. This is where a conviction, fines, a criminal record and any jail exposure are decided.
Track two · DMV
If you refused the chemical test, the DMV opens an administrative proceeding to revoke your license. For Nassau County these safety hearings are held at 400 Oak Street in Garden City. It is not a criminal trial, the standard is different, and it can revoke your license even if the criminal charge is later reduced or dismissed.
Charges
The label on the ticket matters. These are different offenses with materially different consequences, and part of defending a case is arguing about which one it actually is.
| Charge | Basis | Level, first offense | License, first offense |
|---|---|---|---|
| DWAI, alcohol VTL 1192(1) | Ability impaired by alcohol. Not defined by a fixed BAC number. | Traffic infraction, not a crime | 90-day suspension |
| DWI, per se VTL 1192(2) | BAC of .08 or more by chemical analysis | Class A misdemeanor | Six-month revocation |
| Common-law DWI VTL 1192(3) | Intoxication proved by evidence rather than a required BAC number | Class A misdemeanor | Six-month revocation |
| Aggravated DWI VTL 1192(2-a)(a) | BAC of .18 or more | Class A misdemeanor | At least one-year revocation |
| DWAI, drugs VTL 1192(4) | Ability impaired by a drug | Class A misdemeanor | Six-month revocation |
| DWAI, combined VTL 1192(4-a) | Combined influence of alcohol and one or more drugs | Class A misdemeanor | Six-month revocation |
| Leandra's Law VTL 1192(2-a)(b) | Intoxicated or impaired with a passenger aged 15 or younger | Class E felony, even on a first offense | At least one-year revocation |
| Second DWI within 10 years | Qualifying prior conviction within the look-back period | Class E felony | At least one-year revocation |
| Third DWI within 10 years | Two qualifying prior convictions | Class D felony | At least one-year revocation |
| Zero Tolerance, under 21 VTL 1192-a | BAC of .02 to .07 for a driver under 21 | Administrative offense, not a VTL 1192 crime | Six-month suspension plus a $125 civil penalty |
| Commercial driver | BAC of .04 or more while operating a commercial vehicle | Disqualification, on top of any criminal charge | At least one-year CDL disqualification |
| Chemical test refusal | Refusing the chemical test after a proper warning | Administrative DMV proceeding, separate from the criminal case | At least one-year revocation plus a $500 civil penalty. 18 months for a CDL holder. |
Two things this table does not show. An ignition interlock is mandatory on a DWI or aggravated DWI conviction, generally for at least twelve months, installed and maintained at your expense. And a New York DWI conviction is not expungeable; it stays on your record. Penalties and DMV procedures change, so treat this as general information, not as advice about your case.
Defense
A breath reading is a piece of evidence, not a verdict. Each of these is a real line of attack, and each depends on records that have to be demanded early.
Police need a lawful basis to pull you over in the first place. If the stated reason does not hold up, or the stop was extended beyond what that reason justified, everything that followed can be challenged, including the observations and the test result.
Roadside tests have standardized instructions and conditions. They are frequently administered on uneven roadside surfaces, in poor light, in bad weather, to people with injuries, inner-ear problems, obesity or simple fear. How the test was given is as fair a subject as how you performed on it.
Breath testing devices require calibration, maintenance and a certified operator, and each of those generates paperwork. Observation periods before the test exist for a reason. Gaps and irregularities in those records are a routine and legitimate basis to contest a reading.
A refusal revocation depends on whether you were properly warned, in clear terms, of the consequences of refusing, and whether what happened was actually a refusal. Confusion, a language barrier, or a request to speak to a lawyer are not automatically the same thing as refusing.
Much of what the prosecution relies on is what you said before anyone read you rights: how much you had, when, where you were coming from. Whether those statements were lawfully obtained is litigated in pre-trial motions, and suppressing them can leave a much weaker case.
Consequences
People hear misdemeanor and relax. A first-offense DWI conviction in New York carries a permanent criminal record, fines and state surcharges, revocation of your license, an ignition interlock requirement, and years of higher insurance costs.
The consequences that damage people most are usually the ones nobody mentions at arraignment: a commercial driver whose CDL is the job, a nurse or teacher facing a licensing board, a non-citizen whose plea carries immigration exposure, or a parent who simply cannot drive to work. Those have to be identified before a plea, not after.
Questions
It is done either way, and both roads have costs. Refusing avoids creating a chemical reading for the prosecution, but it triggers a separate DMV revocation proceeding and the refusal itself can be used against you at trial. Taking the test produces a number, though that number is challengeable on calibration, maintenance, operator certification and observation-period grounds. What matters now is defending the position you are actually in.
A suspension can be imposed at arraignment, and on a refusal the DMV proceeding runs separately from the criminal case. Whether you can get a conditional or hardship privilege to drive to work depends on the charge, your record, and what happens at those first appearances. This is one of the strongest reasons to have a lawyer before the first court date rather than after it.
Sometimes. A reduction depends on the evidence, your record, the strength of the stop and the testing, and the practice of the court and prosecutor handling it. No honest lawyer promises a particular reduction at a first meeting. What a lawyer can do is find the weaknesses that make a reduction possible, which is work that happens in discovery and motions.
Yes, and significantly. Commercial drivers face a lower blood alcohol threshold while operating a commercial vehicle, and disqualification rules that can apply even to conduct in a personal car. A plea that a typical driver would accept as a good outcome can end a commercial driving career. Tell your lawyer you hold a CDL at the very first conversation.
The absence of an accident helps, but it does not make the charge minor. New York prosecutes impaired driving on the driving itself, not only on its consequences. Aggravating factors such as a high reading, a child in the vehicle, or a prior conviction can raise the charge to an aggravated or felony level regardless of whether anyone was injured.
Reviewed by James E. Toner, Esq.
Last reviewed August 2026
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Primary sources
Statutes, penalties and DMV procedures change. These links go to the official New York State sources so you can check the current text yourself. Nothing on this page is a substitute for advice about your own case.
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Garden City, New York 11530
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