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By Michael Arbeit
Founding Attorney

Should you find yourself in almost any traffic court and/or criminal court in New York State, you may be trying to make sense of the alphabet soup that is thrown around. Lawyers, like almost anyone else, seem to love acronyms and when it comes to traffic offenses it can get rather confusing. Overhearing it is one thing, but suppose you are in traffic court because you have an acronym-based traffic offense. Some top ones to worry about are DWI DWAI and DUI. In this article, we will explore the differences between these three charges. 

Where we are

The first thing we have to do is to establish the location we are referring to. With some criminal law concepts, it does not matter what location we are speaking about. With this article, we are specifically talking about the State of New York. If you are reading this article from another state, it may not be accurate. Different states call things by different names and, when it comes to driving impaired, there are plenty of different ways of naming, organizing, and classifying the offenses. 


The original DWI is also the most straightforward for many to understand. DWI stands for driving while impaired. New York defines the term DWI in two ways. For the most part, the definition impacts what must be proven at trial. 

DWI Per Se

The easiest case for the prosecutor to prove, DWI per se is defined as operating a motor vehicle with 0.08% or more alcohol in your blood. The per se part means that a presumption is made that you are intoxicated or guilty of the crime. This is not a common concept in criminal law. What it means is that the judge will find you guilty or, in a jury-tried case, instruct the jury to find you guilty if the prosecutor convinces them that your blood alcohol level exceeded the legal limit. Frequently, scientific evidence like blood tests, breathalyzers, urinalysis, or, even, saliva swabs will be used to prove how much alcohol was present. 


A regular DWI is harder to prove but exists in the laws of New York. A regular DWI is defined as driving a motor vehicle while in an intoxicated condition. While it may seem that not having a legal limit in the definition of the crime makes it easier to prosecute, the opposite is true. 

To prove that a person was operating a motor vehicle in an intoxicated condition, apart from proving that they were, indeed, driving, the state must show evidence to support the idea of intoxication. This becomes difficult as there are many things that may result in similar observations to those which would be noticed by a drunk person. For example, suppose the evidence is that the person has bloodshot eyes and smells like whiskey. That person may be drunk or may have just gotten off a double shift tending bar. 


Driving while alcohol-impaired is what DWAI stands for. Essentially, a lower threshold than DWI, to be convicted of this offense you must operate a motor vehicle with a blood alcohol level above 0.05%. This term can apply to people who have used drugs as well. In addition to alcohol impairment, this could also be charged as the crime of driving while ability impaired by drugs or a combination of drugs and alcohol. 

Similar to the above, what the charge is determines what the state must prove. In the case of driving while impaired by alcohol, they must prove that you have alcohol in your system and that you were driving some kind of motor vehicle. With either of the drug charges, the government must prove the use of drugs as well. Additionally, should you have any drugs remaining, you may also receive charges for a drug case.

How do they do this? A new trend in some areas is to use drug recognition experts, known as DREs. DREs will make you perform a breathalyzer to rule out impairment by alcohol and then perform a series of observations to try to guess what sort of drug you are on. This is all a method to establish probable cause for some sort of chemical analysis to see if you have any drugs present in your system. This police officer who has received a bit of training, then, tries to testify as an expert about your impairment. 

DWAI becomes difficult to prove when the mere presence of drugs does not necessarily mean that you are impaired in reality. For example, marijuana may not cause any form of impairment even though it is detectable in your blood. 


DUI stands for driving while under the influence. This is not actually a charge in New York but is used in the statutes and is a charge often found in other states. The section where DWI and DWAI are deveined is entitled “Operating a motor vehicle while under the influence of alcohol or drugs.” Many times, in states that differentiate between DWI and DUI, whether the substance causing you to drive unsafely is alcohol or drugs is the determining factor. Therefore, even though it is confusing if you receive a ticket because you have had too much to drink in Long Island, you do not have to worry about this term. 

The Difference

The main difference between these offenses is what the state has to prove to win their case and the severity of the punishment if they do. We have already discussed the differences in what has to be proven, but we will now discuss the possible sentences for each type of case:

DWAI – Alcohol

If you are charged with driving while ability impaired because of alcohol, the potential fine is anywhere from $300-500 and up to 15 days in jail. Typically, jail time is not imposed for a first offense, but maybe.

DWAI – Drugs / DWAI – Combination / DWI

All other offenses are treated the same. Driving while ability impaired from drugs or a combination of drugs and alcohol and driving while intoxicated carries a fine of $500-1000 and up to a year in jail. 


There are several ways that the potential sentence you face could be higher than what is listed above. These include things like the existence of prior convictions and facts of the offense. If a person was injured, for example, the charge may be enhanced, or you may face an entirely different criminal offense. If you have prior convictions within a certain time period, the penalties imposed upon a conviction will be significantly more severe. If you receive enough convictions, these cases can be enhanced to the point that they are felony criminal cases.

Collateral Consequences

Collateral consequences are those things that a criminal conviction impacts, not included in your actual sentence. When we are dealing with DWAI and DWI, any conviction will result in suspension or loss of your license, depending on the severity of the offense or the existence of prior convictions. 

What to do

If you need to go to traffic court, things can be confusing. While this article, hopefully, has explained the difference between three common acronyms you may encounter, we, really, have scratched the tip of the iceberg. An experienced attorney like Michael Arbeit is your best bet when you find yourself facing the possibility of losing your license, large fines, and jail time. 

Attorneys who spend time handling traffic cases understand the elements necessary for the government to prove their case, the nuances of scientific tests used, and the complex options their clients have available to them. If you have benefited from an understanding of the differences between DWI, DWAI, and DUI, the services of a skilled advocate will help you achieve the best possible outcome for your case. 

About the Author
Michael A. Arbeit, P.C. is devoted to all Criminal Defense and  Traffic related matters.  Michael practices primarily in the Criminal and County (Supreme) Courts in Nassau County, Suffolk County, Queens County, Kings County, New York County and the Bronx County.  Michael is also licensed to practice law in the Federal Courts of the Eastern District of New York (EDNY) and the Southern District of New York (SDNY).
Posted in DWI