Driving While Intoxicated – The Charges

On Behalf of | Apr 26, 2020 | DWI, Firm News, Traffic |

This week I’ve driven home from my office a couple of times and noticed the same thing each day – in one of the cars around me someone was clearly smoking Marijuana. Please remember, that even during this time when less people are on the road, it’s never safe to drink or take any type of drug (yes even Marijuana) and then drive. With that being said, if you or someone you know is charged with some type of DWI charge, please read below for a basic outline of the different potential charges.

While almost everyone knows that you can be pulled over and arrested for driving while drunk, what many people don’t know is that you can also be pulled over and arrested for driving under the influence of Marijuana and other drugs. In fact, the DWI law in New York has a number of different sections related to whether you’ve consumed alcohol or drugs, how intoxicated you are, and whether or not you’ve been convicted of a DWI in the past.

Driving While Ability Impaired

Under VTL § 1192.1, it is a violation to operate a motor vehicle while your ability to do so is impaired by alcohol. This is the least serious of the offenses that will be discussed here. Generally speaking, to convict someone of VTL § 1192.1, the prosecutor must show that a person was under the influence of alcohol and that their ability to drive was thereby impaired. This is usually done through testimony of the arresting officer, who says that you were swerving, running a light, speeding, or doing things that an otherwise prudent driver would not do. If convicted of VTL § 1192.1, you may be looking at a mandatory revocation of your license, a fine, a mandatory drunk driving class to get your license back, and potential jail time in a worst case scenario.

Driving While Intoxicated (Alcohol)

If you’re pulled over and have been drinking alcohol, you may be looking at a number of different charges depending on the circumstances. If you take the intoxilyzer test, and blow over a .08, you will most likely be charged with VTL § 1192.2, which is a driving while intoxicated (per se) charge. If your blow showed that your blood alcohol content was .18 % or higher, then you’ll be looking at aggravated charges under VTL § 1192.2(a). The main distinction between the two, is that the latter carries a higher fine, and a longer term of revocation for your driver’s license. We’ll discuss the penalties fully in just a moment though. Generally speaking, for a prosecutor to convict someone of either of these crimes, they must show that the driver was operating the vehicle (through testimony, admissions, or otherwise), and that his/her blood alcohol content was at the required level to fit the particular section of the VTL. Oftentimes one of the most crucial pieces of evidence in this type of case is the result of the intoxilyzer exam (the blow).

In addition to these charges, you will also most likely be charged with VTL § 1192.3, which is another driving while intoxicated charge. In fact, even if you decided NOT to take the intoxilyzer exam and blow, you may still be charged with VTL § 1192.3. Whereas the prosecutor needs to show that you had a specific blood alcohol content under § 1192.2, under § 1192.3 they need only show that you were operating the vehicle and that you were doing so in an intoxicated condition. Where you would expect to hear testimony about the blood alcohol content results during a VTL § 1192.2 trial, here you could expect to hear testimony about your physical demeanor and condition when the cop observed you. They’ll be explaining whether you were steady on your feet, slurring your words, the results of any field tests you may have taken, among other things.

In terms of penalties, each of these are misdemeanors and can carry up to a year in jail, so you should take them very seriously. They all also carry fines, revocation periods for your driver’s license, an ignition interlock device being installed in your vehicle (at your cost) and potentially a conditional discharge or probationary period depending on the eventual sentence.

Driving While Ability Impaired By Drugs Or By The Combined Influence Of Drugs And/Or Alcohol

What many people don’t realize is that in addition to alcohol, you can also be pulled over and prosecuted for driving while your ability is impaired by drugs (VTL § 1192.4) or by the combined influence of different types of drugs and/or alcohol [VTL § 1192.4(a)]. This INCLUDES Marijuana. I’m not going to comment on the legislature’s efforts to decriminalize Marijuana in this article, but what I am going to say is that even if Marijuana is 100% legalized in the future, it is still ILLEGAL to operate a motor vehicle while your ability to drive is impaired by Marijuana or any other type of drug. The prosecutor in these types of cases must show that an individual was under the influence of drugs or a combination of drugs/alcohol, and that this then impaired their ability to drive.

As these are misdemeanor charges as well, you’re essentially looking at many of the same penalties as the other DWI misdemeanor charges, including a potential year in jail, fines, a license revocation, and/or a conditional discharge/probationary period.

Felony DWI Charges

While up to this point I’ve discussed misdemeanor DWI charges, please be aware that there are also felony charges that can carry significantly longer potential jail sentences (1.5 – 3 years or 2-4 depending on the severity of the charge), higher fines, longer revocation periods, mandatory probation, and other penalties. But how do you get charged with a felony DWI?

In two ways. The first is if you have a previous misdemeanor conviction for DWI within the past ten (10) years. If you do, and you are now charged with what would otherwise be a misdemeanor DWI charge, it may get bumped up to a class E felony. If you have two (2) prior convictions within that time period, then it may get bumped up to a class D felony.

The second way that you can get charged with a felony DWI, and one that many people don’t even realize, is if you are alleged to have been driving while intoxicated and you have a child who is fifteen (15) years old or younger in your vehicle (yes, this includes your own child). Many people don’t think much of it when they go out to dinner, have a few drinks, and then drive the family home. What they don’t realize, is that their blood alcohol content may be over .08 %. Then they get pulled over, get charged with a felony, and are then confused as to why. The reason for that is VTL § 1192.2(b) – the Leandra’s Law DWI. Even if you have NEVER been charged with any crime at all in your entire life, if you operate a motor vehicle while intoxicated with a child fifteen (15) or under in your vehicle, you can be charged with a felony.

Most importantly, if you are pulled over for suspicion of DWI, make sure you contact an attorney as soon as possible. Also, take a moment now to read my previous article on what to expect when you’re stopped https://www.michaelschillinger.com/news-media/driving-while-intoxicated-dwi-the-basics so that you at least understand the basics of your rights upon being pulled over by a police officer.

With all of that being said, the only surefire way of not getting arrested for suspicion of DWI is to not drink or take any type of drug and drive. When in doubt, call a cab.

Stay safe everyone.