The charges
VTL §1192 distinguishes these offenses:
- §1192(1): DWAI by alcohol, ordinarily a traffic infraction on a first offense; repeat offenses can become misdemeanors.
- §1192(2): per se DWI at a BAC of 0.08% or higher.
- §1192(3): common-law DWI, based on intoxication evidence.
- §1192(2-a)(a): aggravated DWI at a BAC of 0.18% or higher.
- §1192(2-a)(b): qualifying impaired driving with a passenger aged 15 or younger, a Class E felony even on a first offense.
- §1192(4) and (4-a): impairment by drugs or combined substances, generally misdemeanors on a first offense.
- §1192(5) and (6): separate lower-BAC rules for commercial motor vehicles.
Under VTL §1193, a qualifying prior conviction within 10 years can make the new offense a Class E felony; two within 10 years, or three or more within 15 years, can make it a Class D felony. Review the actual prior offense and dates. Misdemeanor imprisonment is capped at 364 days under Penal Law §70.15.
What happens to your license
License consequences can arise from the criminal conviction, from a chemical test refusal, or from both, and they operate independently of one another.
For an ordinary adult noncommercial license, a first chemical-test refusal generally carries at least one year of revocation and a $500 civil penalty. A qualifying prior refusal or impaired-driving finding within five years generally raises these to at least 18 months and $750. Under-21 and commercial-license rules differ. These consequences arise under VTL §1194 independently of the criminal case; a refusal hearing is time-sensitive.
VTL §1193 requires an ignition-interlock condition after convictions or youthful-offender findings under §1192(2), (2-a) or (3). The ordered restriction is at least 12 months, subject to the statutory proof-of-installation rule that can terminate it after six months unless a longer period was ordered. The requirement covers vehicles owned or operated by the person; it does not authorize driving during a revocation.
Plea reductions are restricted
VTL §1192(10) restricts pleas on charges under subdivisions (2), (3), (4) or (4-a) to qualifying §1192 offenses. Aggravated DWI has a narrower permitted plea range. A statutory exception requires the district attorney’s determination that the evidence does not warrant the charge and the court’s statement of its basis on the record. No reduction is guaranteed.
This matters because it is a common assumption that any charge can be negotiated away quietly. In this area the legislature has deliberately constrained that.
What to do in the first days
- Find out which court, and when. Your paperwork names it. Missing an appearance creates a separate problem.
- Address the DMV track promptly, particularly after a refusal. It runs on its own clock.
- Locate every document — the ticket or accusatory instrument, any DMV notice, and anything you were given at the scene or the station.
- Do not discuss the arrest, including on social media.
- Get advice before the first appearance, not after it.
If you hold a CDL or drive for work
The consequences are materially different and stricter, and a disposition acceptable for an ordinary license may end a commercial driving career. Say so at the first conversation.
Frequently asked questions
Is a first DWI a felony in New York?
A first ordinary DWI is generally a misdemeanor. Qualifying impaired driving with a passenger aged 15 or younger is a Class E felony even without a prior conviction; qualifying repeat convictions can also make the charge a felony.
What is the difference between DWI and DWAI?
A first ordinary DWAI-by-alcohol offense is generally a traffic infraction. Drug or combined-substance DWAI is generally a misdemeanor, and repeated alcohol DWAI can be a crime. DWI is generally criminal, based on BAC or other intoxication evidence.
What happens if I refused the breath test?
Refusal carries its own licensing consequence and civil penalty through the DMV, separate from the criminal case, and applies even if the criminal case ends favorably. There is a hearing process, and it is time-sensitive.
Will I lose my license?
License consequences can follow from a conviction, from a refusal, or both. What applies depends on the charge, your record, and how each track resolves.
Do I need a lawyer for a DWI?
DWI involves two simultaneous proceedings with different rules and deadlines, restricted plea options, and consequences that reach employment and insurance. It is not a matter to handle alone.
Do I have to appear in court?
Yes. A DWI charge requires appearances, and missing one creates an additional problem on top of the original charge.
Related: Traffic Tickets · back to Criminal & Traffic Defense
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539 · Last reviewed October 6, 2026