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Drunk Driving Laws in New York

  DUI Laws & Info  -   POSTED: 2007/01/08 00:52

One question I get more than any other is "What will happen to me in the court on my first offense for DUI?" If you talk to an attorney there are all sorts of variables they will consider. They usually will not give you a clear answer. The following is a general framework of what most DUI first offenders receive in New York State.

Drunk Driving in New York State is prosecuted under either or both of two theories: common law drunk driving (Section 1192-3), and driving while one has more than .08% of one gram of alcohol per liter in one's bloodstream (Section 1192(2). The first (common law) theory is the old fashioned drunk driving where one is weaving in traffic and having obvious problems. This is based on the critical opinion of the arresting officer. The second theory ignores how the driver is doing but makes it a criminal offense merely to have more than the .08% blood alcohol limit in your blood. It is possible to be cited under both sections of the code, and receive two tickets.

First Offender Penalties In New York State:

In Court

First offense is a misdemeanor and will result in a criminal record.
If convicted of misdemeanor DWI, you will have your license revoked for a minimum of six months.
Mandatory fine of $500 to $1000.
Surcharges are added to misdemeanors ($160).
Maximum penalty = one year in the local county jail.
Operators with commercial licenses or operating commercial vehicles face stiffer penalties.
The highest blood alcohol level possible to still drive is a .04 % BAC. When you hit .05 percent you're driving while impaired. When you hit .08 percent you're driving while intoxicated. A DWI conviction depends on a test of your BAC under Section 1192(2).
Arrest for “Driving While Impaired” (.05 to .07% BAC) usually results in a $300 - $500 fine, a 90 day license suspension, and a maximum of 15 days in county jail.
Just sitting behind the wheel of a running vehicle can constitute "driving" or "operating" a vehicle.
Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC gets $125 civil penalty. License is suspended for 6 months, with a $100 fee to terminate suspension.
A serious personal injury or a death will result in suspension of your privilege.
License can be suspended immediately for any refusal to submit to a breath test. (VTL Section 1194. 2). Suspension is possible.
If the Administrative Law Judge finds (as they almost always do) that the refusal was made even though the police officer informed him/her that it would result in a license suspension, the judge can and will revoke the license for a period of at least 6 months, plus a $300 civil penalty. In such a case, your license will be suspended pending a DMV hearing, which must be held within 15 days.
Ironically, if you refuse the BAC test, receive a revoked license, but are found “not guilty” you cannot revive a conditional license, because innocent drivers are not eligible to attend a Drinking Driving Program (see below). A dismissal of the criminal charge or a plea to any other charge outside the DUI charge will preclude the issuance of a conditional license.
At the time of your arrest the DMV will automatically suspend your license if you are alleged to have had .08% or more alcohol in your blood, as shown by chemical analysis of blood, breath, urine or saliva.

This suspension is for four months. But after the expiration of 30 days you, if eligible, can apply for a pre-conviction conditional license, if you attend a DMV certified Drinking Driving Program. These programs cost a minimum of $75 dollars, and include 16 classroom hours and a screening process to complete the program. Enrollment requires bringing your driver license or proof of identity with signature, and payment of the appropriate fees to a DMV office.

If you are convicted in the interim, the court will sometimes grant a 20 day stay order on any court imposed suspension or revocation. This will allow you time to enroll in the Drinking Driving Program and obtain a conditional license.

On the day you are suspended you may be eligible for a "Hardship Privilege" which is issued directly by the judge However, this by no means assured, and is based on proof of an inability to find alternate means of travel to and from work, school, etc. "Hardship Privilege" is very restricted and will generally only permit you to drive to and from work, doctor’s appointments, school, etc.

If you are placed on probation because of this conviction, you also must bring written permission from the sentencing court, or your probation officer, that allows you to apply for a license.

Only after completion can you have your license restored or reapply for another.

If you qualify for a conditional license or conditional driving privilege, you will be allowed to legally drive within certain limitations ( such as to and from work, to and from medical treatment, to attend an accredited school or college, to deliver a child to school, etc.).

Just in case you are wondering, a second offense DWI is a felony prosecuted in Superior Court or County Court. A conviction may result in a term of imprisonment in a State Penitentiary. A $750 penalty applies to drivers under 21 if second offense.

This is GENERALLY the way it works for those convicted of a misdemeanor first offense DUI.


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