Aggravating Factors in New York DWI Cases

January 23, 2020

By Jill K. Sanders, Esq.

If you’ve been arrested for Driving While Intoxicated (“DWI”) or any alcohol- or drugged-driving offense, you may already be wondering what the possible punishment will be. One way the penalty may be affected is if there is an aggravating factor present in your case. Speaking with a knowledgeable criminal defense attorney will allow you to know the potential outcomes at court.


Categories of DWI In New York

The most common charge facing people arrested for driving under the influence of alcohol is Driving While Intoxicated. This is sometimes called “common law DWI.” This charge is based on the observations of a trained police officer. After performing standard field sobriety tests (“SFSTs”), the office can make a determination the driver is impaired or intoxicated by alcohol.

If you agree to take the chemical test, and your blood alcohol content (“BAC”) is 0.06% or 0.07%, you can be charged with Driving While Ability Impaired by Alcohol. If it is between 0.08% and 0.17%, you can be charged with Driving While Intoxicated – Per Se. Once your BAC is 0.18% or above, you can be charged with Aggravated Driving While Intoxicated.

There are also situations in which drivers can be under the influence of drugs, or both alcohol and drugs. These charges can be based on the observations of the officer or based on the results of a chemical test. This includes Driving While Ability Impaired by Drugs, and Driving While Ability Impaired by Drugs and Alcohol.

DWI categories

Aggravating Factors

You may be facing additional penalties or enhanced charges based on several aggravating factors.

  • Prior convictions – Prior convictions will affect the way the prosecutor will view your case. Any prior criminal history will be considered, especially if they relate to intoxicated driving. A prior intoxicated driving conviction within the previous 10 years will elevate your charge from a misdemeanor to an “E” felony, or from an “E” felony to a “D” felony. Prior convictions will also affect your eligibility for a license.
  • “Leandra’s Law” – The Child Passenger Protection Act, also called “Leandra’s Law,” automatically makes it a felony to drive while intoxicated with a person age 15 or younger in the car.
  • Accident and/or injuries – An accident that results in property damage or injuries to others can make a prosecutor resistant to offering a reduced charge during plea bargaining. And if the injuries are very serious or result in death, you could be facing assault or homicide charges.
  • High BAC – An elevated BAC can not only change what crime you’re charged with. The prosecutor will also be tougher on plea negotiations if the BAC is noticeably high.
  • Refusal – While refusing to take the chemical test may seem like a way to cheat the system, refusal isn’t always a good idea. Along with additional penalties for refusing the test, the prosecutor will not look too kindly on a person who refuses.
  • License issues – If you’re driving with a suspended or revoked license at the time you were arrested for intoxicated driving, this may make a prosecutor less willing to cut a deal.
  • Open containers and/or drugs – Having an open container of alcohol in the car may subject you to an additional charge. And having drugs in your possession could lead to additional criminal charges.