DWI and DUI / Traffic and License
In short
Driving while ability impaired by alcohol, VTL 1192(1), is a traffic infraction and not a crime. Every other subdivision of VTL 1192, including DWI at .08 or more, is a misdemeanor or a felony. That distinction decides whether you end up with a criminal record, whether you get a jury trial, and how long you lose your license.
One is a crime and the other is not. That is the difference that matters most, and it is worth more than any discussion of fines.
Under Vehicle and Traffic Law 1192, driving while ability impaired by alcohol, subdivision 1, is a traffic infraction. Every other subdivision is a misdemeanor or a felony.
VTL 155 says a traffic infraction “is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment.” So someone convicted of DWAI can truthfully answer no to whether they have been convicted of a crime. Someone convicted of DWI cannot.
| Offense | Standard | Crime? | Fine | Max jail | License, first offense |
|---|---|---|---|---|---|
| DWAI, 1192(1) | Impaired to any extent. No number required | No, infraction | $300 to $500 | 15 days | 90 day suspension |
| DWI per se, 1192(2) | .08 or more | Misdemeanor | $500 to $1,000 | 1 year | 6 month revocation |
| Common law DWI, 1192(3) | Intoxicated condition. No test needed | Misdemeanor | $500 to $1,000 | 1 year | 6 month revocation |
| Aggravated DWI, 1192(2-a)(a) | .18 or more | Misdemeanor | $1,000 to $2,500 | 1 year | 1 year revocation |
| Leandra’s Law, 1192(2-a)(b) | DWI with a passenger 15 or younger | CLASS E FELONY | $1,000 to $5,000 | 4 years prison | 1 year revocation |
| DWAI drugs, 1192(4) | Impaired to any extent by a drug | Misdemeanor | $500 to $1,000 | 1 year | 6 month revocation |
| Combined influence, 1192(4-a) | Alcohol and drugs together | Misdemeanor | $500 to $1,000 | 1 year | 6 month revocation |
Add to every one of these a Driver Responsibility Assessment of 250 dollars a year for three years, plus mandatory surcharges. Those are not discretionary and the court cannot waive them.
No, and this is the most common error written about New York DWI law.
Subdivision 1 has no numeric element at all. The offense is operating a vehicle while your ability to do so is impaired by alcohol, to any extent. The familiar bands come from a separate evidence statute that creates presumptions: a reading of .05 or less is prima facie evidence of no impairment, and .07 to .079 is prima facie evidence of impairment.
Those are evidentiary tools, not elements of the offense. A person can be convicted of DWAI with no chemical test whatsoever, on observations alone.
The same logic applies upward. Common law DWI under subdivision 3 requires no number either, which is why refusing a test does not end a case.
On a first offense, no. It is a misdemeanor.
A reading of .18 or more elevates a first offense to aggravated DWI, which raises the fine to between 1,000 and 2,500 dollars and doubles the minimum license revocation to a year. It does not make it a felony.
The felony inside that subdivision is a different provision entirely.
Driving under the influence with a child fifteen years of age or younger in the vehicle. It is a class E felony on a first offense, with no prior conviction required, carrying up to four years in state prison.
Three points people get wrong:
| Situation | Class | Prison exposure |
|---|---|---|
| One qualifying prior within 10 years | Class E felony | Up to 4 years |
| Child passenger 15 or younger, no prior needed | Class E felony | Up to 4 years |
| Two qualifying priors within 10 years | Class D felony | Up to 7 years |
| Three or more priors within 15 years | Class D felony | Up to 7 years |
A prior DWAI does not count as a predicate. Because subdivision 1 is an infraction rather than a crime, it is not among the convictions that elevate a later charge to a felony. It still matters for license revocation length, and repeated DWAIs can escalate on their own track, but it will not by itself turn a later DWI into a felony.
Out-of-state convictions do count. And note the two different lookback periods: ten years in the ordinary case, but fifteen where there are three or more priors.
Cannabis has been a drug for these purposes since 31 March 2021, when the definition in the Vehicle and Traffic Law was amended to include cannabis and concentrated cannabis. There is no separate cannabis subdivision; it is charged as DWAI drugs.
The standard changed in February 2026, and this is genuinely new law.
In People v. Dondorfer, 2026 NY Slip Op 00823, decided 17 February 2026, the Court of Appeals held that “impaired” is interpreted consistently across VTL 1192. The same “to any extent” test governs impairment by alcohol, by drugs, and by the two combined. The Court rejected the argument that drug cases require proof of the higher intoxication standard, and it expressly said a Third Department decision holding otherwise should no longer be followed.
Any article stating that drug impairment demands a greater showing than alcohol impairment is now citing abrogated law.
Because there are two separate proceedings running at once, and they do not control each other.
| Criminal court | DMV | |
|---|---|---|
| Decides | Guilt, fine, jail | Your license |
| Standard | Beyond a reasonable doubt | Administrative |
| Who hears it | A judge or jury | A DMV hearing officer |
The refusal statute states the point directly: on refusing a chemical test the license is suspended and subsequently revoked whether or not the person is found guilty of the charge they were arrested on.
The DMV hearing is narrow. It addresses only whether there were reasonable grounds to believe you violated VTL 1192, whether the arrest was lawful, whether you were adequately warned, and whether you in fact refused. A finding against the officer on any one of those ends the suspension. And if the hearing is not held within fifteen days of arraignment, the license is reinstated while it is pending.
Failing to appear waives the hearing entirely. That single missed date costs more licenses than the underlying charge does.
For a conviction under subdivisions 2, 2-a or 3, yes. The court must impose it as a condition of probation or conditional discharge on any vehicle you own or operate.
The order runs for a minimum of twelve months, though the restriction can terminate on proof that the device was installed and maintained for at least six months, unless the court ordered a longer period. Saying flatly that “the interlock is six months” gets the rule backwards.
A straight DWAI, or a DWAI drugs conviction standing alone, does not carry a court-ordered interlock.
Not permanently, but not as briefly as people assume, and the detail here is unusual.
DWAI is the one traffic infraction singled out by name and excluded from the sealing that normally happens at disposition for infractions. So it is fingerprinted and sits on a criminal history record rather than disappearing.
Under the Clean Slate Act, effective November 2024, a DWAI conviction is sealed after three years, and misdemeanors after three years as well, subject to conditions such as having no pending charge and not being under supervision. Felonies take eight.
One thing sealing does not touch: your DMV driving record. The statute expressly excludes it, and DMV separately looks back twenty five years when deciding whether to relicense.
Not at the Traffic and Parking Violations Agency, and that is statutory rather than a matter of practice. The agency is expressly stripped of jurisdiction over DWAI, over any misdemeanor or felony, and over any offense arising from the same criminal transaction as a DWAI. So the companion tickets from the same traffic stop travel with the DWI rather than staying behind.
Nassau also has no town justice courts, and village justices cannot hear a charge of operating while intoxicated.
The result is a single path:
Related: what happens at an arraignment, sealing a DWI record, and DWI defense in Nassau County.
This guide is general information about New York law, not legal advice about your situation, and reading it does not create an attorney-client relationship. Statutes and penalties change, and how the law applies depends on facts no webpage knows. Check the linked primary source, and speak with a lawyer about your own case.
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