DWI vs DWAI: What You Need to Know

Upstate New York has the state's highest number of drunk driving-related fatalities and injuries. Not only is drunk driving very dangerous, the penalties are harsh and can severely affect your life for many years.

If you've been drinking, you need to understand the consequences of getting behind the wheel. You should also be aware that there's another charge called DWAI that involves operating a vehicle while impaired by other substances, or by a combination of drugs and alcohol.

If you get charged with either a DWI or DWAI, it's important you understand the distinction between the two in the state of New York.

To help you out, we're breaking down the difference between DWI vs DWAI. We'll also go over some of the penalties for each and talk about what you should do if you're charged.

What's a DWI?

Most people are more familiar with DWI. This stands for "driving while intoxicated."

In most states, including New York, a Blood Alcohol Content or "BAC" of .08% or higher results in a DWI charge. For drivers of commercial vehicles, it's a BAC of .04%.

In New York, if you're below the age of 21, a BAC of .02% will result in a DWI charge. In addition, there's a charge referred to as "Aggravated DWI." This is the result of a BAC of .18% or higher.

Depending on your particular situation, a charge could lead to license suspension, fines, and possible jail time.

This charge shouldn't be taken lightly, as it will remain on your criminal record. In the state of New York, a DWI charge cannot be expunged.

What's a DWAI?

It's important to understand the distinction between DWI vs DWAI. On the surface, they both may seem the same. However, there's a distinct legal differentiation in the state of New York.

DWAI stands for "Driving While Ability Impaired." In New York, this is a non-criminal traffic violation. Think of it as a minor DWI charge.

There are several circumstances that result in a DWAI:

• • DWAI/Alcohol: Results when an individual's BAC is above .05% but below .07%. There could also be other evidence of some type of impairment.
• • DWAI/Drug: Results when a single drug (other than alcohol) has caused the impairment of a driver.
• • DWAI/Combination: Results when a combination of both a drug and alcohol causes the impairment.

DWI vs DWAI Penalties

A major distinction between DWI vs DWAI are the penalties that result from each charge. While DWI is a much more serious offense, that doesn't mean you should take DWAI lightly. If you're charged with either, you'll need the help of a New York criminal defense attorney.

DWI Penalties

DWI is classified as a misdemeanor offense. A DWI conviction stays on your criminal record permanently and cannot be expunged or sealed. For DMV purposes, it remains on your driving record for 15 years (previously 10 years, changed in 2024). Aside from that, you'll face certain penalties depending on whether it's your first offense or you're a repeat offender.

• • First offense: Fines of $500–$1,000, up to one year jail time, or both. You could also face three years of probation and driver's license revocation for a minimum of six months. The court may also enforce the requirement of an ignition interlock device during probation, plus a $250 driving assessment each year for three years.
• • Second offense within 10 years: Driver's license revocation for a minimum of one year, an alcohol assessment or rehab before getting your license back, possible Victim Impact Panel attendance, and the use of an ignition interlock device during the full term of probation.
• • Third offense: Fines of $2,000–$10,000, up to seven years in jail, probation of up to five years, and license revocation of 18 months.

DWAI Penalties

You'll notice a big difference between DWI vs DWAI in the severity of the punishment. Keep in mind that depending on what type of DWAI you're charged with (alcohol, drug, or combination), the penalties may vary.

• • First offense: A fine of $300–$500, no more than 15 days in jail, or both. You could also have your license suspended for 90 days. The judge may also require you to attend a Victim Impact Panel.
• • Second offense: A fine of $500–$700, up to 30 days in jail, and license revocation for at least six months. You may also have to have an alcohol assessment or attend rehab. Conditional license eligibility disappears on a second offense.
• • Third offense: Fines between $750–$1,500, possibly 180 days in jail, and three years of probation.

What to Do After a DWI or DWAI Charge

The difference between DWI vs DWAI is noticeable when you look at the penalties for each. However, one thing is certain for each charge — you'll need an experienced criminal defense attorney.

The attorney you hire will need to evaluate your case to determine the best course of action. Depending on what your attorney feels is the best approach, you'll either plead guilty or not guilty.

If you plead guilty, your attorney will fight to get you the lightest punishment possible. If your attorney feels your rights were violated or there were procedural problems with your arrest, they may be able to get the charges dropped in a jury trial.

Contact DWI Lawyers in Buffalo, NY

If you've been charged with a DWI or DWAI in Buffalo or the surrounding areas, we're here to help. Law Office of Peter J. Todoro, Jr., PC has been representing people charged with DWI for years. Contact us today.

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