In New York, no person shall operate a motor vehicle while their ability to operate such motor vehicle is impaired by the consumption of alcohol. [VTL 1192(1)]. Unlike Driving While Intoxicated [VTL 1192(2), (3)], Driving While Ability Impaired (DWAI) in New York is not a criminal offense but instead is a non-criminal traffic infraction. (Please see our May 27, 2009 blog on the difference between DWAI and DWI in New York.) However, Driving While Ability Impaired can be charged as a misdemeanor if the defendant has two or more convictions for Driving While Ability Impaired, Driving While Intoxicated, Aggravated Driving While Intoxicated, Driving While Ability Impaired by Drugs or Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs within the previous ten years.

One who is “impaired” by alcohol is less “impaired” than one who is intoxicated. Said another way, intoxication is a greater degree of impairment. All the prosecution need prove to convict a defendant of Driving While Ability Impaired is that the defendant’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities the defendant is expected to possess in order to operate a vehicle as a reasonable and prudent driver. [See CJI2d (1192(1)].

What makes it difficult for a defendant to defend against a Driving While Intoxicated charge is the “impaired, to any extent”, language found in the jury instruction. For one to be found guilty of Driving While Intoxicated (which is a criminal offense), their ability to operate a motor vehicle must be impaired to a “substantial” extent. However, with Driving While Ability Impaired, one is guilty if their ability to operate the vehicle is impaired to “any” extent. So while it’s generally not a criminal charge, it doesn’t take much proof for the prosecution to prove that one was Driving While Ability Impaired [VTL 1192(1)] because of the low threshold “any” extent proof requirement. Therefore, even the slightest of impairment can result in a conviction for Driving While Ability Impaired.

For more information about any Driving While Ability Impaired or Intoxicated issues in New York, feel free to call Tilem & Campbell toll free at 1-888-DWI-COUNSEL (888-394-2686) or visit us on the web at www.888dwicounsel.com.

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