Queens County Bar Association
Martindale Hubbell - Distinguished 2023

What Factors Can Enhance or Aggravate a DWI Charge?

There are several factors that can enhance or aggravate a DWI charge. One enhancement is what is called aggravated DWI which makes the charge somewhat more serious. Basically what aggravated DWI is if the reading is higher than 0.08%, which is a pretty high reading, you have to be pretty inebriated to get a 0.08%. It is not as bad as it may seem, because it is still considered a misdemeanor charge. The fines and fees are somewhat higher. The really serious enhancements are number one, if you have had a previous DWI within the past ten years, then it is now considered a felony. If you receive a third one, once you have had a first felony, you will get a second one and you are what has known as a predicate felon, and that is mandatory prison time.

If you are a real habitual DWI offender you can wind up going to state prison for periods of time measured in years, not days or months. So that is the most serious enhancement. There is also an enhanced charge if you are driving with a child in the car and are convicted of a DWI. That is also a felony. You are subject to state prison time and under any circumstances, you would be a convicted felon, and that would be all that it entails. Those are the enhancements of DWI charges.

Who Is Required To Install An Ignition Interlock Device For A DWI?

This is a relatively new law, it has only been in effect for a couple of years, but in my mind, it is playing havoc with defendants, their rights, and causes great hardship. What happens in New York, if you are convicted of a DWI, the court must, as part of the sentence, require that once you get back your license, even if they wind up giving you your license back, there are a whole different bunch of ways that that can happen even though you receive a six-month suspension, you must have an interlock device installed on any car that you have access to. You cannot operate any car that does not have an interlock device. So this creates tremendous hardships for some people.

The interlock device itself generally costs around $10 a day, and while the law says it is for a period of six months to a year, the courts almost always make it for a full year. So you are talking about thousands and thousands of dollars just to be able to drive a car, and that is the only car you can drive. It is very difficult to operate the vehicle like that because it makes you repeatedly blow into a tube and if God forbid, you do not blow correctly, it will send a signal to the company, and you will wind up back in court. It is a bad law, and it is something that affects people far more than I think, was intended.

If anybody in the family has the car, the interlock must be installed unless you can get the court to determine that the intoxicated driver is not going to drive that car at all. So it is something that has to be handled very carefully. Frankly in most situations, people are better off just not driving at all during that period, because it is so hard to spend the money and the inconvenience of actually having the device installed.

What Are The Penalties Associated With DWI Convictions In New York?

First of all, a driving while ability is impaired, that is a traffic infraction, and that one is below a 0.08% generally. That subjects you to a mandatory $300 to $500 fine, a $250 surcharge and various other penalties through the Motor Vehicle Bureau. You will have to go through certain programs. That is the least serious one. When you receive a conviction for a DWI, driving while intoxicated, that is called an unclassified misdemeanor, it has a maximum sentence of a year in jail, and fines of $500 to $1,000 with a mandatory six month’s revocation, not suspension of your driver’s license. You would have to have an interlock as we discussed, and a whole multitude of other penalties administered through the Motor Vehicle Bureau.

Someone once estimated that the cost of a DWI conviction ultimately winds up costing around $10,000 for the typical offender. It is a very serious matter even if you do not wind up going to jail. Frankly most people, at least in New York City, do not receive a jail sentence on a first offense. Outside New York City, it is very common that first offenders go to jail even on a first offense. Once you are issued a more serious charge, then we start labeling them as felonies. Charges for multiple DWIs or a child endangered in the car, now you are subject to up to four years in state prison. It does not mean you have to, but the judge can sentence you to up to one to four years in prison. That is a real serious matter and of course having a felony on your criminal history will drastically affect your life even aside from the penalties.

Of course the fines and penalties are much different. If you have a second felony DWI, then there is no question. You are going to jail, period. The law requires that you get a minimum sentence of two to four years in state prison on a conviction as a second felony offender. Do not do that; do not ever get yourself into a situation like that. The penalties are outrageously severe.

Are Any Alternative or Diversion Programs Available to First Time Offenders in New York?

In fact, the trend does seem to be going that way. If your lawyer does his job properly, one of the things we try to do is keep the person from getting a DWI conviction. A DWI conviction is a criminal record, and cannot be expunged. In New York, it never goes away. Particularly with young people, we certainly want to do everything we can to avoid them having a criminal record even if they are going to lose their license for a while.

One of the ways we do that is try to work out an arrangement with the district attorney where if a person were to complete the various programs that are offered and some of them are quite extensive, but if you complete it, very often we can work out an arrangement. The DWI conviction will go away. It can happen even in the most serious DWI cases. And more and more we seem to be doing that, the courts and the DAs are aware of just how much a person’s life is destroyed by having a DWI conviction. So many times we can do that and we try very hard to do that because it is important.

What Sets You Apart In Handling DWI Cases In New York?

The one thing that sets us apart, is we are in Queens County, we have been here for many decades. We are familiar with the processes, and we are familiar with judges, district attorneys, and we know what they are looking for. We know how to try a case if it is necessary, and we hopefully have the respect of both the DAs and the courts. It does make it somewhat easier for us or more likely for us to get a good disposition for the client and that is our goal for our clients. We will work as hard as we possibly can and explore every option to get the best possible outcome for our clients. It is what our reputation is all about.

For more information on Aggravating Factors For DWI Charges, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 793-5700 today.

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