New York Drunk Driving Laws

Drunk Driving

Drunk Driving Laws In New York

The New York State law is that it is illegal to operate a motor vehicle while intoxicated (DWI).  If a person's blood alcohol concentration (BAC) exceeds .08% and if that person decides to drive a motor vehicle, it's probable that the driver will get arrested for Driving While Intoxicated (DWI).  A BAC of .08% or more is prima facie evidence (law accepted as correct until proved otherwise) of intoxication (DWI).  This violation is a misdemeanor.

A person driving while impaired can too be arrested.  Driving while ability impaired (DWAI) means that a person has a blood alcohol count (BAC) of .05% up to .07%.  A BAC of more than .07% but less than .08% is prima facie evidence that the driver is impaired.  This violation is a traffic infraction.

Drunk Driving Laws In New York

In New York State, a drunk driving charge cannot be reduced to a non-alcohol violation, such as speeding, unless the district attorney prosecuting the case determines there is not enough evidence to support the alcohol-related charge.  This rarely happens.

The court must revoke or suspend a persons driver license at the time of sentencing if the person is found guilty of any alcohol-related violation.  In some cases a person my receive a 20-day continuation of their driving privileges but their license will be revoked immediately.


The "per se" Law:

Any state that enforces a "per se" DWI law maintain that it is illegal to operate a vehicle if a persons BAC exceeds the legal limit of .08%.

Per Se Law Chemical Breath Drinking Test

Implied Consent:

Any persons who operate or drive a motor vehicle in the State of New York is consenting to a chemical test of breath for determining the alcohol concentration within the blood or breath.  This is known as implied consent.

The Implied Consent Law Allows:

A:  Law enforcement officers to require a sample of your breath for alcohol testing after the
      lawful arrest for Driving While Intoxicate (DWI).

B:  Law enforcement officers to require a sample of your blood or union for alcohol or
       controlled  substance testing if you involved in a crash that causes serious physical
       injury or death to another person.

Chemical Test:

The percentage of alcohol in your blood is known as your blood alcohol content (BAC).  A person's BAC is determined by a breath, blood, or urine test.

A breath test is also known as a "chemical test".

When a police officer requires a person to take a chemical test, the person required to blow into a tube attached to a machine.  The machine chemically separates the alcohol from the rest of your breath and at the same time it makes a mark on a test card indicating the percentage of alcohol in the bloodstream at that time.  A chemical test CANNOT DETERMINE the total amount of alcohol consumed, the alcohol still in the digestive system, or how much have been eliminated.


A chemical test is not required to prove a charge of DWI or DWAI.  A police officer's testimony abut your behavior and appearance when arrested could be enough evidence for a conviction.

Chemical Test Refusal:

Declining a chemical test is a separate issue from whether or not you were guilty of an alcohol or drug-related violation.  If a person refuses to take the chemical test AFTER being arrested, the driver's license be suspended when they are arraigned in court on the alcohol or drug-related charge.  When a person refuses a chemical test it may be introduced in court when the person is tried on the alcohol or drug-related charge.  If a DMV hearing later confirms that a person refused the test, their license be revoked even if that person is found not guilty of the alcohol or drug-related violation.



DWI (.08 and higher Blood Alcohol Content [BAC] or other evidence of intoxication)

The table "Penalties for Alcohol / Drug Related Violations" summarizes the fines, surcharges, license penalties and possible imprisonment you would face if convicted of an alcohol or drug-related violation.

Conviction Fine Only Jail Sentence License Action & Requirements
1st Offense 28(Misdemeanor) Minimum $500 28Maximum $1,000 Up to 1 year Minimum 6-Month Revocation
2nd Offense 28Within
5 Years 28(Class E Felony)
Minimum $1,000
Maximum $5,000
Up to 4 years; minimum 5 days jail or 30 days of community service Minimum 1-Year Revocation, plus ignition interlock and alcohol assessment
3rd Offense or more 28Within 5 Years 28(Class D Felony) Minimum $2,000 28Maximum $10,000 Up to 7 years; minimum 10 days jail or 60 days of community service Minimum 1-Year Revocation, plus ignition interlock and alcohol assessment
2nd Offense 28Within 10 Years 28(Class E Felony) Minimum $1,000 28Maximum $5,000 Up to 4 years Minimum 1-Year Revocation
3rd Offense or more 28Within 10 Years 28(Class D Felony) Minimum $2,000 28Maximum $10,000 Up to 7 years Minimum 1-Year Revocation
DRIVING WHILE ABILITY IMPAIRED 28DWAI (more than .05 up to .07 Blood Alcohol Content [BAC])
1st Offense 28(Traffic Infraction) Minimum $300 28Maximum $500 Up to 15 days 90-day Suspension
2nd Offense 28Within 5 years 28(Traffic Infraction) Minimum $500 28Maximum $750 Up to 30 days Minimum 6-Month Revocation
3rd Offense or more 28Within 10 years 28(misdemeanor) Minimum $750 28Maximum $1,000 Up to 180 Days Minimum 6-Month Revocation, if violation occurred within 5 years of prior violation
ZERO TOLERANCE 28Drivers Under 21 (DMV administrative finding of .02 to .07 Blood Alcohol Content [BAC])
1st Offense Minimum $125 6-Month Suspension $100 Suspension Termination Fee
2nd Offense Minimum $125 1-Year Revocation or until age 21, whichever is longer $100 Re-application Fee

Zero Tolerance for Drivers Under 21

It is a violation for a person under age 21 to drive with any measurable BAC (.02 to .07).  After finding of violation determined at a DMV hearing, the driver's license will be suspended for six months.  The driver will have to pay a $100.00 suspension termination fee and a $12500 civil penalty to be re-licensed.  If a driver under 21-years-of-age receives a second Zero Tolerance violation, their driver's license will be revoked for a least one year or until the driver reaches age 21, whichever is longer.

Illegal Purchase Of Alcoholic Beverages

If a person under the legal drinking age of 21 purchases alcoholic beverages by using a New York State driver license or Non-Driver ID card as proof of age, state law requires suspension of your driver license or privilege of apply for a license.

Open Container Law

It is a traffic infraction for a driver or passenger in a motor vehicle on a public highway, street or road, to drink an alcoholic beverage, or to possess an alcoholic beverage with intent of drinking it. The penalty for a first conviction is two points assess against the driver's license record, a fine up to $150, a mandatory surcharge, a crime victim assistance fee, and potential imprisonment up to 15 days. Additional offenses within 18-months bring higher penalties. The law exempts passengers in vehicle such as stretch limousines, and other vehicles, that display a commerce certificate or permit issued by the U.S. Department Of Transportation or the NYS Department Of Transportation.

Ignition Interlock Program

A judge can order an ignition interlock device as a condition of a probation period that begins when an alcohol-related license revocation is complete. For any repeat offense within five years, a judge is required to order the system to be installed on each vehicle registered to the motorist during both the revocation period and any probation period that follows. The judge also must order an alcohol assessment for the repeat offender. If the assessment indicates the need for alcohol treatment, the judge can order completion of the treatment as a condition of probation.

Ignition Interlock Program

This device, purchased and installed at the expense of the motorist, connected to a motor vehicle ignition system and measures the alcohol content of the operator's breath. As a result, the vehicle cannot be started until the driver provides an acceptable sample breath. While using the interlock device, the motorist may be eligible to hold a conditional license. This license will be revoked it the motorist fails to comply with the court's terms, or for conviction of any traffic offense other than parking, stopping or standing.

A Thought on the Consequences of Drinking and Driving

Consider the consequence before you get in a car to drive.  You can seriously injure someone, kill, kill yourself or if you get pulled over by a police officer and get arrested for drunk driving, you could spend thousands of dollars for lawyers, courts costs, reinstatement fees, insurance, etc.  You will lose your driving privileges for a definite period of time. Your driving record will be affected permanently. You could lose your car and even your job (if you drive professionally), or future job opportunities. You could go to jail! But MOST importantly, someone could lose their life!!! PLEASE DON'T DRINK AND DRIVE!

How To Handle Driving Emergencies

Safe Driving and Crash Prevention

New York DMV Driver License

Aggressive Driving

Traffic Control Signage and Devices