Call Now! 518-283-3000


DWI Charges

Posted by Arthur R. Frost | Jan 17, 2019 | 0 Comments

Understanding the Elements of DWI, DWAI-Drugs, and DWAI-Combined

Unlike most states, New York does not call driving while under the influence of alcohol "DUI." Instead, we call it "DWI," but the idea is the same. Driving While Intoxicated by alcohol (DWI), Driving While Ability Impaired by Drugs (DWAI-Drugs), or Driving Under the Combined Influence of Alcohol and Drugs (DWAI-Combined) are criminal offenses which carry consequences including jail time, a fine, and the potential for the loss of driving privileges. To be convicted of a DWI or DWAI-Drugs, the state must show first that a person was either driving or was in physical control of a motor vehicle. Second, the state must show either that the driver was

  • driving a motor vehicle while that person has a blood alcohol concentration (BAC) of 0.08 or more (DWI), or
  • driving while that person's ability to operate the vehicle was impaired by drugs (prescription or otherwise) (DWAI-Drugs), or
  • driving while impaired by the combined influence of alcohol and drugs (DWAI-Combined).

There are two kinds of DWI - first, driving with a BAC of 0.08 or greater, and second, driving while intoxicated. The differences between a BAC of 0.08 or more and intoxication are discussed below.

Driving with a BAC of 0.08 or More

The calculation of 0.08 or more is a calculation of the percentage of alcohol a person has in their blood. This mathematical calculation is based on analyzing a person's blood, urine, breath, or saliva. The methodology is generally considered sound. However, depending on the methods of collection used and the instrumentation relied upon, challenges can be made to the end result.

When the government relies on a calculation of 0.08 or more, they do not have to prove the person was intoxicated. This is in recognition that different people process alcohol differently. While one person may be uncoordinated and unable to drive after only two drinks, another may be able to drink a six-pack of beer without showing any ill effects. Due to this variation in a person's ability to handle alcohol, the state of New York has selected 0.08 as the amount at which a driver will be charged with DWI regardless of whether they are demonstrably intoxicated.

Driving While Intoxicated

Intoxication is a different analysis than 0.08 blood alcohol concentration. Whether or not someone is intoxicated is a judgment call based on the totality of circumstances. A person who has difficulty standing, cannot focus their attention on what is going on around them, or has significantly slowed reaction times may be considered intoxicated.

Driving While Ability Impaired by Drugs, or Driving While Ability Impaired by the Combined Influence of Alcohol and Drugs

If the state can show that a person's use of a drug has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess to operate a vehicle as a reasonable and prudent driver. The state does not have to show a level of impairment by chemical analysis, only that the person consumed some prohibited drug and that drug actually impaired the person's ability to drive.

It is important to be aware that drug impairment can occur based on the use of illegal drugs, prescription drugs, or over the counter medications. Alternatively, impairment may be the result of the use of a drug combined with the use of alcohol. The amount or type of drug or alcohol is not important for a DWI based on intoxication. Rather, it is the driver's response to the use that leads to the charges.

This is particularly important in light of Massachusetts' recent legalization of recreational marijuana, and New York's contemplation of legalizing recreational marijuana.

Facing DWI Charges?

If you are facing DWI charges, we can help. At Frost & Kavanaugh, we provide complete representation in criminal DWI charges. Arthur Frost has extensive experience in criminal defense work. No one should face DWI charges alone.

About the Author

Arthur R. Frost

Art graduated from Thomas More College in Merrimack, NH in 1991 with a B.A. in Philosophy, and graduated from Gonzaga University School of Law in Spokane, WA in 1995. He was admitted to practice in all New York State Courts and the United States District Court for the Northern District of New York in 1996. He w...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

We Are Trial Lawyers

Choosing the right lawyer makes a difference. Call us and we’ll show you how. We are trial lawyers!