Frequently Asked 
Questions

If you are convicted of an alcohol related offense or driving while ability impaired by drugs in New York State, you will face different license suspension or revocations periods dependent on what you are convicted of.

If you submitted to a chemical test (breath or blood) and are eligible for a Conditional License and to take the Impaired Driver Program, most judges will grant a 20-day stay on your suspension or revocation. What this means is that the suspension or revocation will not take effect until 20 days from your date of sentencing. This 20 days allows the court to ensure they are able to file all of your conviction paperwork with the Department of Motor Vehicles (DMV) and allows you time to go to the DMV to sign up for the Impaired Driver Program and Conditional License.

Please be aware that many college applications will ask if you have ever been convicted of a crime. Any offense under VTL § 1192 (other than DWAI 1192-1) is a misdemeanor (or felony for repeat offenses) offense. Consequently, you would need to check “yes” if an application asks if you have ever been convicted of a crime. This should not serve as a bar to admission, just something to be cognizant of.

Aggravated Driving While Intoxicated requires that the driver’s BAC (blood alcohol content) allegedly be .18% or higher. If this is the driver’s first offense, the charge is an unclassified misdemeanor and carries with it up to one year in jail, three years’ probation, a one-year license suspension, installation of an ignition interlock device, completion of the Impaired Driver Program, and a maximum fine and surcharge of $2,900. If this is the driver’s second violation within ten years of an alcohol-related misdemeanor or felony offense, the charge rises to a Class E Felony. The penalties increase to up to four years in prison, five years’ probation, 18-month license revocation, installation of an ignition interlock device, completion of the Impaired Driver Program (if eligible), and a maximum fine and surcharge of $5,520. If this is the driver’s third violation within ten years of an alcohol-related misdemeanor or felony offense, the charge rises to a Class D Felony. Penalties increase to up to seven years in prison, five years’ probation, installation of an ignition interlock device, and a maximum fine and surcharge of $10,520. At this point, you will potentially be facing driving penalties for multiple offenders that would be imposed directly by the Department of Motor Vehicles.

Please be advised that an alcohol-related conviction is just causing your car insurance company to either raise your premium or cancel your policy altogether. If your policy is canceled you would either have to shop around for new insurance or you would be relegated to the New York State High-Risk Auto Insurance Pool—both options result in higher premiums. An alcohol-related conviction will be used to determine premiums for approximately 5-10 years.

There are two types of breath tests – the screening test prior to an arrest, for which a refusal is a traffic offense, and the chemical test, after arrest, for which a refusal carries DMV-related sanctions. A chemical test refusal mandates suspension of your license at arraignment, which is typically your first appearance before a judge. At arraignment, the judge will request your driver’s license, the court will mail the license and a hearing form to the DMV in Albany.

This hearing is termed a “refusal hearing” and takes place outside the DWI court case. A refusal hearing is an evidentiary proceeding before a DMV Administrative law judge. The refusal hearing must be scheduled within fifteen (15) days of the arraignment, or the license is reinstated by the DMV (until such hearing takes place). At the refusal hearing, the DMV judge will review the following:

1. Did the police officer have reasonable grounds to believe that the person was driving in violation of any subdivision of VTL § 1192;
2. Did the police officer make a lawful arrest of such person;
3. Was such person given sufficient warning, in clear, or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made; and
4. Did such person refuse to submit to such chemical test or any portion thereof.

If the DMV judge determines that all four issues are established, then your license will be revoked for a minimum of one (1) year; you will also have to pay a $500 civil penalty ($550 if commercial license), before your driving privileges may be restored. Furthermore, a second chemical test refusal within five years carries an enhanced civil penalty of $750.00 and a minimum eighteen (18) month license revocation.

You do not have an absolute right to speak with an attorney before agreeing to submit to a breath test. In NY, you have only a qualified right to speak with an attorney. The NY State Court of Appeals held:

Where the defendant wishes only to telephone his lawyer or consult with a lawyer present in the station house or immediately available there, no danger of delay is posed. But to be sure, there can be no recognition of an absolute right to refuse the test until a lawyer reaches the scene.

People v. Gursey, 22 N.Y.2d 224, 229 (1968).

A New York State Appellate Division Court ruled in 1994 that a motorist who sought to first consult with his attorney before submitting to a test was, in essence, refusing. However, in 2012, the NY State Court of Appeals determined that a motorist must be clearly advised that their request for counsel is limited in time before such a request can be deemed a refusal. People v. Smith, 18 N.Y.3d 544 (2012).

Furthermore, the Third Department of the Appellate Division held as recently as 2018 that:

…where the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, a defendant who has asked to consult an attorney can be required to make a decision without the benefit of counsel’s advice on the question.

People v. Warran, 2018 WL 1747869, 3(NY App Div. 3rd 2018) (citing People v. Smith, 18 N.Y.3d 544).

In New York State, there are two separate Driving While Intoxicated Charges, which carry the same penalties. The first is Driving with .08 of One Percent or More of Alcohol and, as suggested, requires that the driver’s BAC (blood alcohol content) allegedly be .08% or higher. The second is Driving While Intoxicated, which falls under Common Law, and does not require a BAC. If you refuse a breath test but fail the standardized field sobriety tests and the officer suspects you have been driving while intoxicated, you will be charged under Common Law. Additionally, the latter charge often is issued in conjunction with the first.
If this is the driver’s first offense, this is an unclassified misdemeanor and penalties include up to 364 days in jail, three years’ probation, 6-month revocation of your driver’s license, installation of an ignition interlock device, completion of the Impaired Driver Program and a maximum fine and surcharge of $1,400.

If this is the driver’s second violation within ten years of an alcohol/drug-related misdemeanor or felony offense, the charge rises to a Class E Felony. The penalties increase to up to four years in prison, five years’ probation, 18-month license revocation, completion of the Impaired Driver Program (if eligible), installation of an ignition interlock device, and a maximum fine and surcharge of $5,520.

If this is the driver’s third violation within ten years of an alcohol/drug-related misdemeanor or felony offense, the charge rises to a Class D Felony. Penalties increase to up to seven years in prison, five years’ probation, installation of an ignition interlock device, and a maximum fine and surcharge of $10,520. At this point, you will potentially be facing driving penalties for multiple offenders that would be imposed directly by the Department of Motor Vehicles.

Every DWI conviction in New York State requires the installation of an ignition interlock device in any vehicle that is titled or registered in the defendant’s name for the full period of their conditional discharge or probation.  Generally, you are required to install the Ignition Interlock Device within 10 days of sentencing.

An Ignition Interlock Device is essentially a breath test machine attached to the Ignition of your automobile.  Installation of an ignition interlock device requires that you blow into the device before your car will start. Any detection of alcohol will be recorded. Avoid consuming any alcohol, including mouthwash, before attempting to blow into this device. It is also important to note that any attempt to circumvent the device is a crime for both you and the person who attempted to blow into the device.

New York law also requires that anyone mandated to install an ignition interlock device be financially responsible for its installation and maintenance. The approximate cost of the device is $150 to install and $100 per month thereafter. If a driver cannot afford this cost, we can work with the Court pre-sentencing to ask for either a reduction or waiver of the fees. It will be the Court’s decision whether any reduction or waiver is granted.

A recent change in the legislation mandating the ignition interlock device allows for us to petition the court for early removal of the device after six (6) months of physical installation. This only applies if there is a misdemeanor conditional discharge sentence and if negotiated offer has not prevented defendant from using this provision.  Additionally, certain courts will not grant the petition for early removal.

At the end of your time with an ignition interlock device, you will not be allowed to remove the device until you have received permission to do so until the sentencing court or your device monitor or probation officer has issued you a letter or certificate stating you completed the requirement. Once you have received this notice of completion, it should be sent to your device manufacturer so the device can be removed and the original letter needs to be taken to the DMV so that the ignition interlock restriction can be lifted from your driver’s record.

Employees who drive a company vehicle for work may be able to do so without an IID, provided that the vehicle is only driven for work and the employer provides a written affidavit to the court and probation department/county IID monitor that the employer knows of the driver’s conviction.

The Impaired Driver Program (IDP) is ordered at sentencing and is a seven-week course that meets once per week for approximately two to three hours per session.  It costs approximately $225. You may be referred for an alcohol and/or substance abuse evaluation through IDP but as long as you provide proof that you completed an evaluation and any recommended treatment program, you should have already satisfied this requirement.

Participation in the IDP is limited. Repeat offenders may not participate if the time from their prior completion of the program to their next arrest is less than five (5) years.  The five years runs from the date the IDP program was completed, NOT from the last conviction date.

While you are in the IDP and during your license suspension, you should be eligible to hold a post-conviction conditional license. This license costs $75 plus tax. If this is your first alcohol related conviction, it is possible that you can have the suspension end at the time you complete the IDP.  Ask the IDP instructor about this possibility when you are done with the program.

Although limitations are placed on the holder of a conditional license, it allows you to drive under certain conditions:

1. To and from employment and during employment when required;
2. To and from a rehabilitation program class or activity;
3. To and from classes at an accredited school or vocational institute;
4. To and from any court ordered probation activities;
5. To and from the DMV for the transaction of business associated with the license or program;
6. To and from medical treatment for yourself or a member of your household (requires a letter from licensed medical practitioner);
7. During a three (3) hour consecutive daytime period once a week;
8. To and from a place, including a school, where your children are cared for and that is necessary to maintain your employment or enrollment in school

For additional information in regard to the IDP and conditional license, you can visit the New York State Department of Motor Vehicles website at https://dmv.ny.gov/tickets/impaired-driver-program-alcohol-drug-rehabilitation-program

Impaired Driver Program and Conditional License

The Impaired Driver Program (IDP) is ordered at sentencing and is a seven-week course that meets once per week for approximately two to three hours per session. It costs approximately $225. You may be referred for an alcohol and/or substance abuse evaluation through IDP but as long as you provide proof that you completed an evaluation and any recommended treatment program, you should have already satisfied this requirement.

While you are in the IDP and during your license suspension, you should be eligible to hold a post-conviction conditional license. This license costs $75 plus tax. If this is your first alcohol-related conviction, it is possible that you can have the suspension end at the time you complete the IDP. Ask the IDP instructor about this possibility when you are done with the program.

For additional information in regard to the IDP and conditional license, you can visit the New York State Department of Motor Vehicles website at https://dmv.ny.gov/tickets/impaired-driver-program-alcohol-drug-rehabilitation-program

An intermittent jail sentence allows an individual to serve their jail sentence in “periods” of time instead of all at once. These periods continue until the sentence is served. Intermittent jail sentences are often referred to as weekends in jail as many of these terms are served Friday night to Sunday night. If you receive this jail sentence, you must show up to the jail half an hour before starting on each start date for proper processing.

An alcohol related driving conviction may result in difficulty for international travel. Specifically, travel to Canada would likely be restricted due to their laws. If you are convicted of an alcohol-related driving offense you may be barred from entering Canada. Canada bars any non-Canadian citizen convicted of a misdemeanor from entering their country. Canada also excludes drivers convicted of DWAI (VTL § 1192[1]), a traffic infraction, from entering the country.

To obtain entry to Canada following any conviction, you may need to apply for a Minister’s Permit with the Canadian consulate. Approval of this application will allow you to visit Canada for a short-term visit.  An individual convicted of a crime may not obtain long-term entry into Canada until at least five (5) years have passed from the date their sentence was completed.  They may apply to the Canadian Consulate for “rehabilitation.” If granted, a US citizen with a criminal record may enter Canada as if they had no criminal record.

The impact of a conviction upon your ability to enter other foreign countries varies from country to country. If being barred from traveling to a particular country could have a negative effect on your business or other dealings, please ensure you advise me of this.  As an aside, application for rehabilitation to enter Canada must be made by an attorney licensed to practice in Canada.

We recommend you seek advice from either an immigration attorney or the US Embassy in the country you wish to travel to should you have international travel planned in the next 5-10 years.

Aggravated Driving While Intoxicated with a Child 15 Years of Age of Less as a Passenger only requires BAC of .08%. This is automatically a Class E felony charge, even if it is the driver’s first offense. Penalties include up to four years’ in prison, five years’ probation, one year revocation of your driver’s license, installation of an ignition interlock device, completion of the Impaired Driver Program and a maximum fine and surcharge of $5,520. If this is the driver’s third violation within ten years of an alcohol-related misdemeanor or felony offense, the charge rises to a Class D Felony. Penalties increase to up to seven years in prison, five years’ probation, installation of an ignition interlock device, and a maximum fine and surcharge of $10,520. At this point, you will potentially be facing driving penalties for multiple offenders that would be imposed directly by the Department of Motor Vehicles.

New York State has enacted a system requiring different levels of alcohol and drug use evaluation and potential treatment for different offenses.  At arraignment, or at the discretion of the court, prior to sentencing, you will be required to undergo either mandatory screening or a mandatory assessment.  The details of each appear below:

Mandatory Screening

First time violators charged with DWAI, DWI, or DWI per-se, and where a blood test result is less than 0.15% BAC, or where a chemical test was refused, must be screened by a treatment professional using a standardized written screening test. If your screening indicates that you are abusing or dependent upon alcohol or drugs, you must then undergo the mandatory assessment.

Mandatory Assessment

You will have to undergo a mandatory assessment under the following circumstances:

1. The screening process set forth above indicates abuse or dependence upon alcohol or drugs;
2. You have been charged with DWI or DWI per-se and had a BAC of 0.15% or greater;
3. You have been charged with aggravated DWI;
4. You have been charged with violating any provision of VTL § 1192 and have either (a) a previous conviction for any provision of VTL § 1192, Vehicular assault, or vehicular manslaughter within the last five (5) years, or (b) two such convictions within the last ten (10) years.

The assessment must be forwarded to you and the court within thirty (30) days. If it indicates that treatment is required, the court must require such treatment as a condition of any sentence of probation or conditional discharge. The list of approved, Office of Alcoholism and Substance Abuse Services (OASAS) providers can be found by going to:

https://www.oasas.ny.gov/providerDirectory/index.cfm?search_type=3

Miscellaneous Provisions Regarding Screening/Assessment

All screening and assessments must be completed by an OASAS-approved provider.  Many of the District Attorneys will want to have the results prior to making an offer.  In some instances, it is possible to make screening/assessment part of the conditional discharge, however, past experience has shown that is normally more beneficial to have this completed in advance and during the plea negotiations rather than waiting until later in the timeline to undergo this.  On a Driving While Ability Impaired, participation in the IDP program will generally demonstrate compliance with the mandatory treatment program, however, there again you lose the ability to demonstrate completion of this as good faith to negotiate a better plea deal.

Section 1193[1-a] of the Vehicle and Traffic Law requires mandatory incarceration or performing community service by individuals convicted of Driving while intoxicated, or driving with BAC > 0.08% who also have one or more prior convictions for those offenses within the preceding five (5) years.

Media Coverage of your Case

There is a growing tendency for local newspapers to cull through law enforcement data and to publish arrests related to driving while intoxicated.  If this should happen to you, please provide me with a copy of the article, or online media.  Thereafter, we can discuss whether or not a response should be crafted.  Under no circumstances should you contact, or if contacted speak with any member of the media regarding your case.  You should also refrain from posting anything on any social media or online account regarding the arrest, the allegations, or anything related to your case.  I can personally assist you in dealing with this labyrinthine landscape.

Pistol Permit

If you hold a pistol permit, the arrest may cause an immediate suspension of your right to possess a firearm.  If you are convicted of any section under VTL § 1192, a hearing will be held to determine the length of any revocation period.  This hearing would be conducted separately from your case and may be before a Judge or a judge’s law clerk.

Plea Bargain Limitations

Each jurisdiction establishes its own policies regarding plea bargaining.  The process of plea bargaining takes place initially between the defense Attorney and the District Attorney/ADA.  Once a plea bargain is offered and the defendant is ready to accept, the final approval comes from the Court. All plea bargains are subject to final court approval.  However, the legislature has imposed some restrictions on plea bargaining in the context of VTL § 1192 charges.  Essentially, if a defendant is charged under VTL § 1192 (2, 3, 4, or 4-a), the DA can only offer a plea down to 1192-1 (Ability impaired); unless the DA determines that such a charge is not warranted, and the DA could make an offer outside VTL 1192, but must receive consent of the court and the court must put on the record the reasons and rationale for allowing a plea outside of 1192.  From a practical perspective, this means that a plea bargain based on an 1192 charge is going to be no less than an 1192-1.

OASAS Certified Drug and Alcohol Assessment

New York State Office of Alcohol and Substance Abuse Services (OASAS) is a government agency that certifies treatment facilities and counselors to perform drug and alcohol evaluations. In some counties you will be required to have this done and complete any recommended treatment during the pendency of you case; however, in other counties, this may be a part of your sentencing. Your attorney can provide the names of providers they frequently work with or you can visit https://webapps.oasas.ny.gov/providerDirectory/index.cfm to find a provider in your area.

In 2012, New York State Instituted new regulations that affect drivers with multiple alcohol/drug-related driving convictions. These regulations affect drivers who have had three or four alcohol/drug-related driving convictions in 25 years or five convictions in their lifetime. For a complete list of penalties, please visit https://dmv.ny.gov/tickets/penalties-multiple-offenders.

Many traffic infraction convictions result in points on your license. We recommend taking the Defensive Driving Class which “removes” four (4) points every 18 months from your license that count towards a license revocation. You can take it online and the link is provided below. This will help you if you are charged in the future with any moving violations.

http://www.newyorksafetycouncil.com/

Probation supervision involves regular contact with a probation officer, drug/alcohol testing, compliance with all laws, home visits and searches, time on an ignition interlock device, no ownership of guns or dangerous weapons, and no leaving the county where you reside without permission from probation. In court, you will have signed the terms and conditions of probation and you should keep a copy of these conditions with you. Please be sure to comply with these rules. If you fail to abide by any of the rules, you can be brought back to Court and re-sentenced up to time in jail. If you are on your best behavior throughout your sentence, your probation officer could petition the Court to release you from your sentence early.

Probation also controls how and when you get your license back. They will also control the installation and monitoring of the ignition interlock device in any vehicle you either own or operate.

If you hold a professional license, such as a license to practice law, a nursing license, an engineering license, or a certified personal accounting license, you should be concerned about the potential impact of a conviction on that professional license.  If you hold a professional license, please advise me immediately.  A conviction under VTL § 1192 may require reporting to the professional licensing board and may automatically trigger a hearing to determine if your professional license should be suspended or revoked.  Financial sanctions might also be imposed.  Therefore, a full and careful analysis should be conducted before any determination is made as to how to proceed with your case.

If your business holds a special license from a government agency (e.g. a liquor license), a conviction under VTL § 1192 may have adverse consequences.  Provide a copy of any government-issued business licenses you may have before proceeding with your case.

Refusal to Take a Breath Test and the DMV Refusal Hearing

If you refuse to take the Breathalyzer/Datamaster test at the police station, you will almost immediately be taken in front of a judge to be arraigned on the charges and have your license taken away. You will not be eligible for any driving privileges during this time. The judge will also schedule a refusal hearing that will take place at your regional Department of Motor Vehicles in front of an Administrative Law Judge.

At the DMV Refusal Hearing, the arresting officer testifies and must demonstrate that they had reasonable grounds to believe that you were operating a motor vehicle in violation of the DWI statute; they made a lawful arrest; they read the DMV DWI Refusal Warnings, and the defendant refused to submit to either a breath or blood test. If the officer fails to demonstrate any one of those things, you will most likely win your refusal hearing and get your license back. If you lose the hearing, your license will be revoked for a one year period from the date of your refusal hearing.

SCRAM is a brand name for alcohol monitoring anklets. The anklet is worn continuously and is constantly testing your skin for any signs of alcohol. It then makes a report and sends it to the monitoring agency.

As is the case with licensing, your ability to hold or maintain an active security clearance could be impacted by an alcohol-related conviction or any misdemeanor conviction.  Consequently, you should promptly advise your attorney if you hold an active security clearance, or if you anticipate seeking a security clearance.  As above, you should only proceed with your case once you have explored the potential ramifications and long-term effects on a security clearance.

Shock probation acts as a split sentence of jail time and probation. You will be required to report to jail on the date-time as sentenced by the judge.

Probation supervision involves regular contact with a probation officer, drug/alcohol testing, compliance with all laws, home visits and searches, time on an ignition interlock device, no ownership of guns or dangerous weapons, staying in the county where you reside unless granted permission to leave, and possible continued alcohol and substance abuse treatment. Probation is a tough program, but it is the only way to minimize jail time. If you are on your best behavior throughout your sentence, your probation officer could petition the Court to release you from your sentence early. However, should you violate the terms of your probation you could be sentenced to insert max time in prison.

Bear in mind that Probation will control how and when you get your license back. They will also control the installation and monitoring of the ignition interlock device in any vehicle you either own or operate.

If you undertook a chemical test of your blood and your reportable BAC was 0.08% or higher, your license will be suspended at arraignment.

Sometimes a driver may be eligible for a hardship license. The court which conducts your arraignment will decide your eligibility for this limited license. To be eligible, the court must determine that you will be subject to “extreme hardship” without this license. NY VTL §1193[2](e)(7) defines “extreme hardship” as:

…the inability to obtain alternative means of travel to or from the licensee’s employment, or to or from necessary medical treatment for the licensee or a member of the licensee’s household, or if the licensee is a matriculating student enrolled in an accredited school, college, or university, travel to or from such licensee’s school, college, or university, if such travel is necessary for the completion of the educational degree or certificate.

This license only allows the driver to operate their vehicle to and from their place of employment. It does not allow a driver to operate a vehicle for work purposes.

License Suspension V. License Revocation

A suspension is when your driving privilege is taken away from you for a certain period of time. In the case of a Driving While Ability Impaired, first offense, your license will be suspended for 90 days. You cannot drive until your suspension ends and you pay the termination fee unless you have been granted a conditional license. At the end of your suspension, you must pay a suspension termination fee of $50 to restore your driver’s license.

A revocation means that your license has been canceled and you must get a new one when your revocation period ends. You will be sentenced to revocation on any alcohol-related offense that is a misdemeanor or felony; however, the time of that revocation is dependent on a number of factors including the charge you were convicted of and if you had any priors. When the revocation period is over, you must request approval from the DMV for a new license as it will not automatically be reinstated. Please visit https://dmv.ny.gov/tickets/how-request-restoration-after-driver-license-revocation for specific steps to take when applying for approval for a new license. The fee to terminate the revocation reapply for a license is $100.

Please keep in mind that it is a crime punishable by jail time each time that you operate a motor vehicle in New York State while the suspension or revocation is still on your record.

The Victim Impact Panel also referred to as “VIP”, is your opportunity to hear from people whose lives have been affected by DWI. In almost every county in New York State the VIP is imposed as a sanction in alcohol-related driving convictions. In some courts, the judge will order you to attend a VIP at a specific time and location. In other courts, you may just be given a specific period of time in which you must attend a VIP. For additional information on the New York State Victim Impact Panel or to find a VIP in your county, please visit the following site: https://stopdwi.org/resources-victim-impact-panel.

If you reside out of New York State, the courts may allow you to attend a different Victim Impact Panel sponsored by Mothers Against Drunk Driving. Please note, you must have permission from the court to attend an out-of-state Victim Impact Panels. For more information, please visit MADD at https://maddvip.org.

A driver who is less than 21 years of age and who drives with a BAC of .02% but not more than .07% is guilty of a zero-tolerance violation. This is a traffic offense and you receive a notice to appear in front of an Administrative Law Judge at your regional Department of Motor Vehicles. At the hearing, the officer must prove that you are the person who was operating the vehicle; a valid request was made to submit to a chemical test; the chemical test was properly administered; the test showed you consumed alcohol, and the police officer made a lawful stop. If the officer has carried their burden of proving the case, the Administrative Law Judge will find you drove after having consumed alcohol. Your license will be suspended for 6 months and you will be required to pay a civil penalty of $125.