DWI – A lawyer’s roadmap

Driving while intoxicated – One lawyer’s road map
Commonly referred to as DWI, charged under New York State Vehicle and Traffic Law §1192(2), §1192(3) or §1192(4), by a Buffalo Criminal Defense Attorney.

Main Points

  • DWI is treated with great care and caution by Prosecutors and Courts;
  • Plea bargains are typically restricted by Policy of the Prosecutor’s Office;
  • Administrative consequences of DWI may be more significant than the criminal penalties;
  • Treatment and Evaluation of the client play an important role in the process.

Driving while intoxicated is one of the most common vehicle and traffic crimes charged in local courts.  DWI is unique in that there is no “typical” offender.  People from each socioeconomic class are susceptible to being charged with this offense, as a result, offenders charged with this offense may more commonly be “first time last time” offenders, and the client may be someone that is an otherwise productive member of society who used poor judgment on a single occasion.


Do I need a lawyer if I am charged with DWI?

Unquestionably, Yes.  DWI laws are complex and not uniformly or even appropriately applied by Courts.  The typical DWI case will present a variety of legal issues that an attorney will need to review.  Experienced DWI lawyers will have a better grasp on the potential or impact of any legal issues a case may present and will be better able to manage these issues while mindful of practical concerns presented by the Court and Prosecution.

I was drunk, I was driving, I’m guilty right?

The legal definitions of intoxication or impairment are not precise terms, and every Court seems to apply a different interpretation of them.  Keep in mind there are essentially two types of DWI, “common law” DWI, and “statutory” DWI.  Common law DWI cases are based upon the officer’s observations, including field sobriety tests, to determine whether the driver lacked the ability to operate a motor vehicle as a reasonable and prudent driver.  Statutory DWI relies solely upon the results of a Blood alcohol test, where a driver submits to a breath test after his arrest for common law DWI.  A Blood Alcohol Content of .08% or more is consider DWI in New York State.

If I am charged with DWI what should I do?

Find a lawyer with experience in DWI cases.  For some reason, many lawyers will agree to handle a DWI case, even when they have little experience in this type of case.  It is not uncommon for many civil or “general practice” lawyers to handle DWI cases, but it may not be wise to use the lawyer that did your house closing for your DWI defense.  Over the last ten years alone, the laws related to DWI have changed dramatically, and your attorney will need to be up to date on the latest developments in the law to handle your case properly.

An experienced lawyer will start by referring you to an OASAS clinical screening and assessment provider.  That process will result in a report to be provided to the Court that will allow your attorney to advocate for more leniency in both the plea bargaining and sentencing phases of your case.  In most cases, this evaluation will be required by the Court anyway, and by beginning the process before your first appearance in Court, you may make a favorable impression with the Judge and Prosecutor.  An experienced lawyer will also make certain that any records provided to the court remain confidential, since many courts mistakenly disclose these reports to third parties in violation of the law.

A good lawyer will also go to great lengths to review the circumstances of your arrest, and make certain that the Police did not violate the law while investigating your case.  If your rights were violated by the police, or if there is a legitimate issue that suggests the officers made some mistakes, these issues may help in obtaining a better result in your case.

Finally, your lawyer will make certain to be aware of your background, mindful of any collateral consequences any conviction may have on you life.

What will it cost to hire an attorney for a DWI?

Lawyers fees vary, somewhat dramatically based upon a number of factors.  It will be important for you to discuss all of the facts of your case, as well as your concerns, before retaining a lawyer.  A quality attorney will consider all of these factors before estimating his total fees.  Your criminal history, possible collateral consequences, and any issues related to your case, may be favorable to your defense, but will also require more work by your attorney.  Fees in the Western New York market tend to range between $1500 and $5000 for first time DWI’s.  As with any case, it will be important for you to consider any potential lawyer’s experience, as well as the consequences of any conviction on your life.  You should also be wary of any attorney that agrees to take your case for a fee that is substantially lower than others.  That may be a sign that the lawyer works on a volume business model, which means he will have more cases, but less time to spend on your case.

Will my license be suspended?

Yes, but there are a variety of means to obtain a license for necessary travel.  When you  first appear in Court on a DWI, the judge will honor the “prompt suspension law” which requires him to suspend your license while the case is pending against you.  He will first have to make certain that the necessary documentation has been filed with the Court to substantiate the suspension.  While this amounts to a punishment of a person that has not been convicted of any crime, Courts have ruled this law is constitutional because driving is a privilege, not a right under our constitution. Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82 (1996). Your lawyer will prepare a motion on your behalf requesting a “hardship license” which will allow you to drive for limited purposes, such as work and medical appointments, but nothing more.  Even if the the Court denies your lawyers application for a hardship license, you may apply for a conditional license after your license is suspended for 30 days.

If you are subsequently convicted of a DWI or DWAI, you may be entitled to a conditional license by participating the in the “Drinking Driver Program”.

What if I refuse to submit to a breath test?

If the officer has reasonable cause to believe that you have operated a motor vehicle in violation of Section 1192 of the Vehicle and Traffic Law, he may request that you submit to a test of your Blood alcohol content.  That standard isn’t a high one, and Courts have found reasonable cause on some pretty slime evidence.  If you refuse to submit, and are warned of the consequences of that refusal, the DMV will automatically revoke your license for 12 months.

You may still be eligible for a conditional license under the drinking driver program, and receive a conditional license under that program as a result.

The Law

Driving While Ability Impaired (DWAI – First time offender)

Statute:        1192(1)
Offense Level:    Traffic Infraction
Is this a crime?    No
Maximum sentence:        15 days
Maximum fine:        $300 to $500.00.
Suspension:        License to drive suspended while the case is pending  if you are charged with DWI (pending prosecution) and for 90 days following a conviction of DWAI.

When it’s charged:        DWAI is rarely charged by officers, who instead will charge common law DWI.  DWAI usually results from a plea bargain between the defendant and prosecutor.  This plea bargain is less likely when an accident is involved, when the driver has a history of drinking related offenses, or when the results of a Blood Alcohol test are higher.

Driving While Intoxicated (DWI – first time offender)

Statute(s):    1192(2) and 1192(3)

Offense Levels:    Unclassified Misdemeanors
Is this a crime?    Yes
Maximum Sentence: One year in county jail
Fines:            Between $500 and $1000.
Suspension:        License to drive suspended pending prosecution (while case is             pending and if convicted, 180 days following sentence).

When it’s charged:    1192(2) is charged when a driver’s BAC is shown to be greater than .08%.  1192(3) is charged when a driver exhibits characteristics and “clues” of being intoxicated to a degree that he lacks the ability to operate a motor vehicle as a reasonable and prudent driver.

James Quinn Auricchio, Esq., is a criminal defense lawyer with offices in Buffalo and West Seneca, NY.  He appears in criminal courts across Western New York and handles matters including DWI’s.  Contact him at 716.941.4336.

This page is intended as a public service, and does not constitute legal advice.