VTL §1192. Operating a motor vehicle while under the influence of alcohol or drugs.
1192.1 – Driving while ability impaired.
No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.
- Commonly known as DWAI – 1192.1 can be charged if a driver’s BAC (blood alcohol level) is between .05 and .079. DWAI is a violation level offense and it is often what a DWI misdemeanor is reduced to when plea bargaining is done with the District Attorney’s Office.
- When a person is convicted of a violation DWAI, either after trial or through a plea bargain reduction from the misdemeanor DWI, the sentence of the court will be fines, surcharges, a 90 day license suspension (a 20 day stay may be granted), a one year conditional discharge to complete the MADD Victim Impact Panel (VIP), DMV Drinking Driving Program (DDP), and whatever treatment is mandated by the Court.
- Some District Attorney’s Offices, including Westchester and Nassau counties are no longer allowing some first time misdemeanor DWIs to be reduced to a DWAI if there was a refusal or the BAC is .14% or above. See my blog post on the recent change in Westchester County here.
1192.2 – Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
- DWI 1192.2 is charged when there is a specific BAC reading between .08 and .17. That BAC reading most commonly comes from a breath test, but can also come from a blood or urine test.
- It can be charged as a misdemeanor, E felony or D felony depending on the amount of prior DWI convictions.
- Charged as a misdemeanor if there are no prior DWI convictions within the last 10 years. The maximum penalty is 3 years probation or one year in jail.
- Charged as an E felony if there was one prior DWI conviction within the last 10 years. The maximum penalty is 5 years probation or up to 4 years in prison.
- Charged as a D felony if there were two prior DWI convictions within the last 10 years. The maximum penalty is 5 years probation or up to 7 years in prison.
1192.2-a – Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article. (b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.
- Aggravated DWI 1192.2a (per se) is charged when there is a blood alcohol reading of .18 or above. The level at which it is charged is similar to 1192.2, with the same maximum incarceration. The difference is Aggravated DWI has a higher fine and longer license suspension.
- Aggravated DWI 1192.2a (with a child) is charged when the driver is under the influence of alcohol or drugs, and has a child 15 years old or younger as a passenger in the car. This is charged as an E felony, and carries a maximum of 4 years in prison for the first offense.
1192.3 – Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
- Per se DWI is based upon the observations by the police officer and not on blood alcohol as measured by breath, blood or urine. It is often charged in conjunction with 1192.2, allowing the DA’s office to have multiple theories of DWI by both a BAC reading and by observation.
- The observations by the police officer of the vehicle and driver that are signs of intoxication include:
- traffic infractions committed;
- odor of alcohol;
- watery and bloodshot eyes;
- slurred speech;
- an open container of alcohol in the vehicle;
- unsteady walking and standing;
- inability to follow directions; and
- performance on the
Standard Field Sobriety Tests (SFSTs).
1192.4 – Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.
- 1192.4 is charged when the police believe that a driver is impaired by something other than alcohol. If a police officer believes the driver to be impaired, then administers a breathalyzer test that is not positive for alcohol, they may assume that the driver is under the influence of drugs. Additionally, if the officer finds evidence of drugs, even some prescription drugs, in the possession of the driver or in the car, they may assume that the driver is under the influence of those drugs.
- In order to confirm the presence of drugs, the police can administer a blood test or a urine test. Those tests may show the presence of a drug in the driver’s system, but they don’t necessarily show impairment of the driver by the drug, since there are no guideline levels for drug impairment in the same way that there is a blood alcohol level (BAC) for alcohol impairment.
- Aside from a blood or urine test, police officers can also use a Drug Recognition Expert (DRE), which is a police officer specially trained to recognize impairment by drugs. There are only a couple of officers per county trained to be DREs, so the likelihood of a DRE officer being at the scene or available to evaluate the driver is minimal. However, if a DRE officer administers the tests, especially if it in conjunction with a positive blood or urine test, the DA is much more likely to get a conviction then if there is just a positive blood or urine test.
- Some prescription drugs are among the types of drugs that are illegal to drive under the influence of, many of which are regularly taken by the public, including, but not limited to anti-anxiety medications (Xanax); barbiturates (Phenobarbital); allergy medicines (antihistamines); pain medications (OxyContin); tranquilizers (Valium); sleep medications (Ambien); stimulants (Adderall); attention deficit drugs (Ritalin). If the label of the drug says not to drive or operate heavy machinery after using the drug, it is illegal to drive under the influence of the drug.
1192.4-a – Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs.
No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.
- 1192.4a is charged when the driver is assumed to be under the influence of a combination of drugs, or a combination of drugs and alcohol. Similar to 1192.4, driving while ability impaired by drugs as discussed above, if there is more than one drug in the drivers system, as shown through a blood or urine test; or a drug in combination with alcohol, as shown through a breath, or blood test, the driver will be prosecuted under this section. The blood alcohol content (BAC) of the driver does not even need to be above the legal limit of .08 in order to be prosecuted under this section since it is combined with a drug.
- As with 1192.4, under this section the DA must prove impairment by the combined influence of the drugs, or the drug and alcohol. Just having a drug or a combination of drugs in your system does not mean that you were impaired at the time that you were driving. For example, if a driver smoked marijuana or took pain killers a day prior to being pulled over, the drugs will still show up in the driver’s system in a chemical test, but the driver is no longer under the influence of the drugs.