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Lawrence Newman, DWI Lawyer

       Phone: (607) 229-5184
       Fax:     (866) 381-3122
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The primary difference between the charge of DWI (Driving While Intoxicated) and DWAI (Driving While Ability Impaired) is that DWI is a criminal misdemeanor and while DWAI is a traffic infraction.

The DWI has substantially higher fines and costs associated with it as well. If your blood alcohol level, your BAC, was greater than .05 and less than .08, you can be charged with DWAI. If your BAC is .08 or greater, you can be charged with DWI per se. You can still be charged with common law DWI
without any BAC level, as in the refusal case.

With the charge of DWI common law, the prosecutor will have to prove your intoxication based upon the officer’s observations of your behavior and your performance on the FSTs (Field Sobriety Tests).

With the charge of DWAI, the prosecutor only has to prove any extent of impairment in your ability to drive.

The 5 facts that must be proven “BEYOND A REASONABLE DOUBT” before you can be found guilty of DWI:

1. You (Your identity),
2. Were operating (As a driver),
3. A motor vehicle,
4. In the state of New York (on a public road or highway),
5. while either your blood alcohol level was over .08 (DWI per se)


You were mentally and physically incapable of driving (DWI: driving while intoxicated/ common law) as a reasonable and prudent person


You were affected to any extent in your driving ability (DWAI driving while ability impaired).

Mandatory Fines 
Minimum Fines 
and Maximum Fines

Maximum Jail Term
Mandatory Penalties to
Driving While Ability Impaired (NY VTL §1192[1])(1)
First Conviction
$300 - $500(2)(3)(6)
15 days
90 day suspension
Second Conviction within 5 years of either a conviction for ADWI, DWI or DWAI
$500 - $750
30 days
Revoked at least 6 months
Third Conviction within 10 years
$750 - $1,500
90 days
Revoked at least 6 months
Driving While Intoxicated (NY VTL §1192[2] and [3])(1)
First Conviction
$500 - $1,000(4)(6)
1 year

Revoked at least
6 months
Second Conviction within 10 years (prior ADWI or DWI)
$1,000 - $5,000(5)(6)
4 years
"E" Felony

Revoked at least 1 year (18 months if prior conviction is for ADWI)(7)

Third Conviction within 10 years (prior ADWIs and/or DWIs)
7 years
"D" Felony

Revoked at least 1 year (18 months if at least one prior conviction is for ADWI)(7)
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