DWAI Sentence Checklist:
- Pay your fine and surcharge to the Court;
- Within 20 days, go to DMV and enroll in the Impaired Driver Program;
- Attend the Victim Impact Panel;
- Pay your responsibility Assessment.
One of the most common outcomes in a DWI case is a plea agreement where the Prosecutor agrees to dismiss the criminal charges against you in exchange for your plea of guilty to an infraction commonly called DWAI or Driving While Ability Impaired under Vehicle and Traffic Law §1192(1). If you plead guilty to DWAI, you are admitting that your ability to drive was impaired by the consumption of alcohol “to any extent”.
This plea bargain is often offered when a client has little or no criminal history, there is no accident and the alleged blood alcohol content is below a certain threshold. In some cases, your lawyer may identify issues in your case that make the Prosecutor more willing to make this offer, even if they normally would not.
If your lawyer reviews the evidence (the discovery material that is provided by the Government) and determines that the most likely outcome after a trial would be more severe than an offer to DWAI, you may be advised to accept a plea offer to DWAI because it is not a criminal conviction, the fines are lower, the suspension is shorter and you will not be required to install an ignition interlock device in your vehicle.
While Driving While Ability Impaired (1192(2)) is not a criminal conviction, it will remain on your driving record. If you are charged with DWI again in the future, the penalties may be greater as a result of this and the DMV may take administrative action to suspend or revoke your license.
Am I going to jail? Probably not.
It’s really unheard of for a person convicted of this offense for the first time to be sent to jail. But you should know that the judge has the authority to impose:
A Definite Sentence of imprisonment of up to 15 days, or if this is the defendant’s second conviction of a section 1192 offense within 5 years, then up to 30 days. VTL 1193(1)(a). Intermittent Imprisonment for any term that could be imposed as a definite sentence, if the court is not imposing any other sentence of imprisonment upon the defendant at the same time, and if the defendant is not under any other sentence of imprisonment having a term in excess of 15 days imposed by any other court. Penal Law 60.01(2)(a)(ii) and 85.00. Conditional Discharge for 1 year, if the Court having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment. Penal Law 60.01(2)(a)(i) and 65.05. Any sentence of Conditional Discharge must be accompanied by a sentence to pay a fine. VTL 1193(1)(e).
If a victim is seeking restitution or reparation, the court must consider ordering it, and if not ordered, the court must state its reasons on the record. If restitution is ordered, the amount will be increased by a 5 percent surcharge that goes to the collection agency. Penal Law 60.27(1); CPL 420.10(8). An additional surcharge of up to 10% may be collected upon the filing of an affidavit by the collecting agency and approval by the sentencing court. Penal Law 60.27(8); CPL 420.10(8). In almost all cases the collecting agency will be the local County Probation Department.
The DMV piles on with a Driver Responsibility Assessment.
In addition to any other fines, fees, penalties and surcharges, any person convicted of violating any subdivision of VTL 1192 must pay a driver responsibility assessment of 250 dollars per year for three years. The Department of Motor Vehicles, not the Court, is responsible for notifying the defendant of this obligation and collecting payment. Failure to pay will result in suspension of the defendant’s driver’s license until payment is made. VTL 1199.
The notice is worded in a way that makes you think you need to pay $750 all at once. You don’t, but if you miss a payment in year two or three, your license will be suspended.
How long will I lose my license? 90 Days, but there is a work around.
Your license will be suspended for 90 days from the date the Court imposes sentence. The time your license was suspended pending prosecution does not count toward this 90 days. If you have no priors, your lawyer will ask for a stay of your suspension for 20 days.
What is a “20 day stay”?
Your lawyer will ask for a stay of your suspension so that you can go to the DMV and apply for the Impaired Driver Program. If you need to drive during you 90 day suspension, the Impaired Driver program allows you to get a conditional license for work and other essential travel.
The court may require the defendant, as a part of or as a condition of the sentence, to attend a single session conducted by a victims impact program concerning the impact of operating a motor vehicle while under the influence of alcohol or drugs. VTL §1193(1)(f). The court may also require participation in an alcohol or substance abuse program or an intervention program approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate (PL §65.10). The court may also require participation in an alcohol or substance abuse program or an intervention program approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate (PL §65.10).
Can I go to Canada? Not legally.
You can be denied entry into Canada if you have an infraction for DWAI on your record. You should contact an immigration lawyer, but in most cases, that bar lasts five years.