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The New York state statute, which applies across the entire state, prohibits reducing a DWI charge beyond a DWAI (for example, no “reckless driving” alternative plea.)  Not all DWI charges may be resolved by negotiation if the BAC is too high or some other aggravating factor exists - these cases may have to go to trial before a judge or jury. 

It’s important to note that it is not entirely uncommon for some people to be arrested for DWAI in the first instance. They would have allegedly failed the arresting officer’s observations of intoxication and when they got brought to the station, they blew a 0.07 and weren’t charged with DWI - so, they are charged with DWAI at the outset.  There's typically no bargained for reduction from that charge because it is already the lowest charge in the statute of alcohol related offenses.

Historically, the plea bargaining restrictions in Westchester used to be up to a BAC of 0.16. However, in the last approximately two years, it has been restricted downward to 0.14 and above. If you blew a 0.14 or higher, that would have taken your case out of the plea bargaining range of the Westchester County District Attorney's office, even if you were a first time offender with a beautiful record. It was an aberration in light of their records and yet the people’s hands were tied by their very own policies.

 To their credit, they have now, in Westchester, instituted an Enhanced DWI Monitoring Program which just began at the end of 2018. Under some circumstances now a motorist charged with a BAC of 0.14 to 0.17 may qualify for this Program. Absent aggravating factors, a person charged with DWI in that in that situation would sign a contract for the program conditions and be plead guilty to a DWAI and DWI.  They would sign a contract to the effect that so long as they comply with certain conditions (i.e., an IID in their vehicle, a SCRAM bracelet on their ankle, and attendance at out-patient therapeutic alcohol group meetings) for the ensuing 90 days.  Once successfully completed, the motorist will be able to come back to court, the People will withdraw the DWI charge pleaded to earlier, and they'll be sentenced by the Court solely on the DWAI charge and proceed accordingly with that violation sentence.

In order to qualify for the prosecution’s reduction program, the DWI has to be absent of an aggravating factor (e.g., it has to be a first time arrest.) Once the agreement is signed, the conditions are that the motorist must have to have an ignition interlock device installed in any vehicle they own or operate for the 90 day period. They must come back to court before they plead and they show proof that they've had it installed. They also must attend a regular alcohol treatment group class (even where the motorist has a clean OASAS evaluation.) A SCRAM ankle bracelet will also be required for the 90 days, which will show if there has been any alcohol consumption at all.

Although challenging, this program is a good alternative to a criminal conviction considering these are the same conditions that a motorist would be sentenced to on a DWI condition – only for a much shorter period (i.e., 90 days.) However, the motorist does pay in two ways: first, they have to perform all these obligations without any violations. If you violate it, then you violate the agreement and you're back in court answering on the violation facing a definite sentence of three years of probation. Second, they also pay financially because SCRAM bracelets and IID devices are very expensive, plus they have to pay for the alcohol treatment classes.  So, while qualifying for this DWI reduction program can be a very good reprieve, motorists must understand the small print - if they are unsuccessful in performing any of the conditions during that 90 day period they will go back for sentencing on a conviction for a DWI. And, they will be sentenced to probation, which is one of the other possible consequences of a DWI which is very onerous on a motorist.

A DWAI carries a 90 day suspension, a fine, the surcharge, the IDP, the VIP and a DRA, or Driver's Responsibility Assessment which may be paid either as a lump sum of $750 or $250 a year for three years. That is the same for DWAI and DWI. However, a DWI, in addition, carries an up to one year incarceration. Absent an aggravating factor, jail time for a first offense would be highly unusual. 

Probation is an alternative to jail. A conditional discharge from the court is an alternative to probation. A conditional discharge is essentially a fine and conditions set forth to be successfully completed post-sentencing (e.g., any required alcohol treatment classes, fine, and an IID installed for 12 months in any vehicle the motorist owns or operates.) Probation, which is strict supervision by members of the Department of Probation, is almost always for three years. There is generally no driving for the entire period of time of probation. You cannot apply for a license anywhere without the permission of the probation officer. To do so is a violation. If they do eventually allow you to drive a motor vehicle earlier than the three years, they're going to require that you have the IID device in the car. A violation of probation can end up with a person being sentenced to jail, which will generally terminate probation and satisfy the sentence with a period of incarceration instead.

The penalties and the consequences clearly distinguish DWAI from DWI and illuminate why there is such a much better result in a case when you can obtain a DWAI rather than a DWI.  Or, if a DWI – then a conditional discharge rather than probation where it is demonstrated to be warranted.

For more information on Alternative Programs For 1st Time DWI Offenders, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 666-8137 today.

Are There Alternative Programs Available For First Time DWI Offenders?