Driving While Ability Impaired (DWAI)

Most people know the "magic number" of when a person is legally intoxicated in New York and that person may not drive: a blood-alcohol content (BAC) of 0.08. However, the law doesn't actually confine prosecutors to only charge drivers who are arrested with a BAC at 0.08 or higher.

Prosecutors may also charge drivers with Driving While Ability Impaired (DWAI), which may not require the same BAC as a normal Driving While Intoxicated (DWI), but carries penalties just as strict.

New York DWAI Lawyer

Rochelle S. Berliner is an experienced New York Driving While Ability Impaired lawyer who will fight for your rights. She will serve as a zealous advocate for your rights. Call the Law Office today at for a free consultation to discuss your DWAI charge.

The Law Office is proud to serve clients in Queens County, Kings County, New York County, Bronx County, Nassau County, Suffolk County and throughout the New York City area.

Defining New York DWAI Charges

Having a BAC of 0.08 or more means you are intoxicated "per se." That means that if prosecutors can prove you had a BAC that high, they need no further evidence to prove you were intoxicated.

However, that does not mean that having a BAC of .08 more is the legal definition of "intoxicated." Courts have held that a person is intoxicated if he or she has consumed alcohol or drugs to the extent that they are incapable of using the physical or mental capacities they would possess while operating a vehicle as a reasonable and prudent driver.

New York Vehicle and Traffic Law § 1192, the statute for intoxicated driving laws, merely prohibits driving a motor vehicle while "impaired" by alcohol. Police may use a variety of ways to determine whether you are impaired, such as slurred speech, poor balance, erratic driving or other indicators of intoxication. A DWAI for alcohol is a lesser charge than a DWI. There is a BAC component — between a 0.05 and 0.07 BAC. However, you may be charged with a DWAI based solely on a police officer's testimony that you behaved in a manner that indicated intoxication.

A DWAI for alcohol is different than a DWAI-Drugs charge, which has the same penalties as a DWI.

Penalties for DWAI in New York

The same law that prohibits DWIs also prohibits DWAI, and however, it is punished as a traffic infraction, rather than a misdemeanor charge. If convicted, you will face a fine of at least $300, ranging up to $500. You could also be sentenced to up to 15 days in jail. Your license will also be suspended for 90 days.

If it's your second DWAI in five years, the penalties go up to a $500 to $750 fine, 30 days in jail and your license is revoked for a minimum of six months.

Defenses Against New York DWAI

While only a minor infraction, a DWAI carries significant penalties and consequences. You won't be able to legally drive for three months. It will go on your driving record, and you can count of significant hikes in your insurance rate.

It's important to remember, though, that, just like any other charge, the prosecutor has the burden to prove his or her case against you. The burden of proof for a Driving While Ability Impaired charge is the same as a charge for murder: "beyond a reasonable doubt."

That means the prosecutor must prove every element of his or her case must have happened, barring some completely far-fetched or improbable scenario. That can be a difficult burden to prove for DWAI, particularly if you did not submit to any tests, like breathalyzers or field sobriety tests. A New York criminal defense attorney can find the weaknesses in the prosecutor's case and exploit them.

Law Office | Queens Lawyer for Driving While Ability Impaired

With an experienced advocate at your side, you can fight DWAI charges. Rochelle S. Berliner is a skilled New York DWAI attorney who fights to get all kinds of drunk driving charges reduced or dismissed.

She is proud to serve clients throughout the five boroughs, including Queens, Brooklyn, the Bronx and Manhattan, and Long Island. Contact the Law Office today at or submit an online form to schedule a free consultation to discuss your charges.