S 1192. Operating a motor vehicle while under the influence of alcohol
or  drugs. 1. Driving while ability impaired.  No person shall operate a
motor vehicle while the person`s ability to operate such  motor  vehicle
is impaired by the consumption of alcohol.

For First DWAI Offense Second DWAI Offense Third DWAI Offense

  2. Driving while intoxicated; per se.  No person shall operate a motor
vehicle   while   such   person  has  .08  of one  per centum or more by
weight of alcohol in the person's blood as shown by chemical analysis of
such person's blood, breath, urine  or  saliva,  made  pursuant  to  the
provisions of section eleven hundred ninety-four of this article.

For First DWI Offense w/in 10 yrs Second DWI Offense w/in 10 yrs Third DWI Offense w/in 10 yrs Fourth DWI Offense w/in 15 yrs Youthful Offender - Misdemeanor Youthful Offender - Felony Persistent Felony Offender - E felony Persistent Felony Offender - D felony

  2-a. Aggravated driving while intoxicated. (a) Per se. No person shall
operate  a  motor vehicle while such person has .18 of one per centum or
more by weight of alcohol in such person's blood as  shown  by  chemical
analysis  of  such person's blood, breath, urine or saliva made pursuant
to the provisions of section eleven hundred ninety-four of this article.

For First DWI Offense w/in 10 yrs Second DWI Offense w/in 10 yrs Third DWI Offense w/in 10 yrs Fourth DWI Offense w/in 15 yrs Youthful Offender - Misdemeanor Youthful Offender - Felony Persistent Felony Offender - E felony Persistent Felony Offender - D felony

  (b) With a child. No person shall operate a motor vehicle in violation
of subdivision two, three, four or four-a of this section while a  child
who  is  fifteen  years  of  age  or  less  is a passenger in such motor
vehicle.
(As amended by L.2009 c.496 effective 12/18/09)

For First DWI Offense w/in 10 yrs Second DWI Offense w/in 10 yrs Third DWI Offense w/in 10 yrs Fourth DWI Offense w/in 15 yrs Youthful Offender - Felony Persistent Felony Offender - E felony Persistent Felony Offender - D felony

  3.  Driving while intoxicated. No person shall operate a motor vehicle
while in an intoxicated condition.

For First DWI Offense w/in 10 yrs Second DWI Offense w/in 10 yrs Third DWI Offense w/in 10 yrs Fourth DWI Offense w/in 15 yrs Youthful Offender - Misdemeanor Youthful Offender - Felony Persistent Felony Offender - E felony Persistent Felony Offender - D felony

  4. Driving while ability impaired by drugs. No person shall operate  a
motor vehicle while the person`s ability to operate such a motor vehicle
is impaired by the use of a drug as defined in this chapter.

For First DWAI (Drug) Offense w/in 10 yrs Second DWAI (Drug) Offense w/in 10 yrs Third DWAI (Drug) Offense w/in 10 yrs Fourth DWAI (Drug) Offense w/in 15 yrs Youthful Offender - Misdemeanor Youthful Offender - Felony Persistent Felony Offender - E felony Persistent Felony Offender - D felony

  4-a. Driving while ability impaired by the combined influence of drugs
or  of  alcohol  and  any drug or drugs. No person shall operate a motor
vehicle while the person's ability to  operate  such  motor  vehicle  is
impaired  by  the combined influence of drugs or of alcohol and any drug
or drugs.
(Added by L.2006 c.732 effective 11/01/06.)

For First DWAI (Combined) Offense w/in 10 yrs Second DWAI (Combined) Offense w/in 10 yrs Third DWAI (Combined) Offense w/in 10 yrs Fourth DWAI (Combined) Offense w/in 15 yrs Youthful Offender - Misdemeanor Youthful Offender - Felony Persistent Felony Offender - E felony Persistent Felony Offender - D felony

  5.  Commercial  motor  vehicles: per se - level I. Notwithstanding the
provisions of section eleven hundred ninety-five  of  this  article,  no
person  shall  operate  a commercial motor vehicle while such person has
.04 of one per centum or more but not more than .06 of one per centum by
weight of alcohol in the person's blood as shown by chemical analysis of
such person's blood, breath, urine  or  saliva,  made  pursuant  to  the
provisions  of  section  eleven  hundred  ninety-four  of  this article;
provided, however, nothing contained in this subdivision shall  prohibit
the  imposition  of  a  charge of a violation of subdivision one of this
section, or of section eleven hundred ninety-two-a of this article where
a person under the age of twenty-one operates a commercial motor vehicle
where a chemical analysis of such  person's  blood,  breath,  urine,  or
saliva,  made  pursuant  to  the  provisions  of  section eleven hundred
ninety-four of this article, indicates that such operator has .02 of one
per centum or more but less than .04 of one  per  centum  by  weight  of
alcohol in such operator's blood.

For First Commercial DWAI Offense Second Commercial DWAI Offense Third Commercial DWAI Offense

  6.  Commercial  motor vehicles; per se - level II. Notwithstanding the
provisions of section eleven hundred ninety-five  of  this  article,  no
person  shall  operate  a commercial motor vehicle while such person has
more than .06 of one per centum but less than .08 of one per  centum  by
weight of alcohol in the person's blood as shown by chemical analysis of
such  person's  blood,  breath,  urine  or  saliva, made pursuant to the
provisions of  section  eleven  hundred  ninety-four  of  this  article;
provided,  however, nothing contained in this subdivision shall prohibit
the imposition of a charge of a violation of  subdivision  one  of  this
section.

For 1st Commercial DWI Offense within 5 years 2nd Commercial DWI Offense within 5 years 3rd Commercial DWI Offense within 5 years 4th Commercial DWI Offense within 5 years Youthful Offender - Misdemeanor Persistent Felony Offender - E felony Persistent Felony Offender - D felony

  7.  Where  applicable. The provisions of this section shall apply upon
public highways, private roads open to motor  vehicle  traffic  and  any
other  parking lot. For the purposes of this section "parking lot" shall
mean any area or areas of private property, including a  driveway,  near
or  contiguous to and provided in connection with premises and used as a
means of access to and egress from a public highway to such premises and
having a capacity for the parking of four or more  motor  vehicles.  The
provisions  of  this  section  shall  not  apply to any area or areas of
private property comprising all or part of property on which is situated
a one or two family residence.

  8. Effect of  prior  out-of-state  conviction.  A  prior  out-of-state
conviction  for  operating  a motor vehicle while under the influence of
alcohol or drugs shall be deemed to be a prior conviction of a violation
of this section for purposes of determining penalties imposed under this
section or for purposes of any  administrative  action  required  to  be
taken pursuant to subdivision two of section eleven hundred ninety-three
of  this  article; provided, however, that such conduct, had it occurred
in this state, would have constituted a misdemeanor or felony  violation
of  any  of  the  provisions of this section. Provided, however, that if
such conduct, had it occurred in this state, would  have  constituted  a
violation of any provisions of this section which are not misdemeanor or
felony  offenses,  then  such  conduct  shall  be  deemed  to be a prior
conviction of a  violation  of  subdivision  one  of  this  section  for
purposes  of  determining  penalties  imposed  under this section or for
purposes of any administrative action required to be taken  pursuant  to
subdivision two of section eleven hundred ninety-three of this article.

  8-a. Effect of prior finding of having consumed alcohol. A prior find-
ing that a person under the age of twenty-one has operated a motor vehi-
cle  after  having  consumed  alcohol pursuant to section eleven hundred
ninety-four-a of this article shall have the  same  effect  as  a  prior
conviction  of a violation of subdivision one of this section solely for
the purpose of determining the length of any license suspension or revo-
cation required to be imposed  under  any  provision  of  this  article,
provided  that  the subsequent offense is committed prior to the expira-
tion of the retention period for such  prior  offense  or  offenses  set
forth  in paragraph (k) of subdivision one of section two hundred one of
this chapter.

  9. Conviction of a different charge. A driver may be  convicted  of  a
violation  of  subdivision  one,  two or three of this section, notwith-
standing that the charge laid before the court alleged  a  violation  of
subdivision  two  or three of this section, and regardless of whether or
not such conviction is based on a plea of guilty.

  10. Plea bargain limitations.  (a) (i) In any case wherein the  charge
laid  before  the  court  alleges a violation of subdivision two, three,
four or four-a of this section, any plea of guilty thereafter entered in
satisfaction of such charge must include at least a plea  of  guilty  to
the  violation  of  the  provisions  of  one of the subdivisions of this
section, other than subdivision five or six, and no other disposition by
plea of guilty to any other charge in satisfaction of such charge  shall
be  authorized;  provided,  however,  if  the  district  attorney,  upon
reviewing the available  evidence,  determines  that  the  charge  of  a
violation  of  this section is not warranted, such district attorney may
consent, and the court may allow a disposition  by  plea  of  guilty  to
another charge in satisfaction of such charge; provided, however, in all
such cases, the court shall set forth upon the record the basis for such
disposition.
  (ii)  In  any  case wherein the charge laid before the court alleges a
violation of subdivision two, three, four or four-a of this section,  no
plea  of  guilty to subdivision one of this section shall be accepted by
the  court  unless  such  plea  includes  as  a  condition  thereof  the
requirement  that the defendant attend and complete the alcohol and drug
rehabilitation program established pursuant to  section  eleven  hundred
ninety-six  of  this  article,  including  any  assessment and treatment
required thereby; provided, however, that such requirement may be waived
by the court upon application of the district attorney or the  defendant
demonstrating  that  the defendant, as a condition of the plea, has been
required to enter into and complete an alcohol or drug treatment program
prescribed pursuant to  an  alcohol  or  substance  abuse  screening  or
assessment  conducted  pursuant to section eleven hundred ninety-eight-a
of this article or for other good cause shown. The  provisions  of  this
subparagraph  shall  apply, notwithstanding any bars to participation in
the alcohol and drug rehabilitation program set forth in section  eleven
hundred  ninety-six  of this article; provided, however, that nothing in
this paragraph shall authorize the issuance  of  a  conditional  license
unless otherwise authorized by law.
  (iii)  In  any case wherein the charge laid before the court alleges a
violation of subdivision one of this section and the operator was  under
the  age of twenty-one at the time of such violation, any plea of guilty
thereafter entered in satisfaction of such charge must include at  least
a  plea  of  guilty  to  the  violation  of  such subdivision; provided,
however, such charge may instead be satisfied as provided  in  paragraph
(c)  of  this  subdivision,  and, provided further that, if the district
attorney, upon reviewing the available  evidence,  determines  that  the
charge  of  a  violation  of  subdivision  one  of  this  section is not
warranted, such district attorney may consent, and the court may allow a
disposition by plea of guilty to another charge in satisfaction of  such
charge;  provided, however, in all such cases, the court shall set forth
upon the record the basis for such disposition.


  (b) In any case wherein the charge laid before  the  court  alleges  a
violation  of  subdivision  one or six of this section while operating a
commercial motor vehicle, any  plea  of  guilty  thereafter  entered  in
satisfaction  of  such  charge must include at least a plea of guilty to
the violation of the provisions of  one  of  the  subdivisions  of  this
section  and  no other disposition by plea of guilty to any other charge
in satisfaction of such charge shall be authorized;  provided,  however,
if  the  district  attorney upon reviewing the available evidence deter-
mines that the charge of a violation of this section is  not  warranted,
he may consent, and the court may allow, a disposition by plea of guilty
to another charge is satisfaction of such charge.

  (c)  Except  as  provided in paragraph (b) of this subdivision, in any
case wherein the charge laid before the court  alleges  a  violation  of
subdivision  one  of  this  section by a person who was under the age of
twenty-one at the time of commission of the offense, the court, with the
consent of both parties, may allow the satisfaction of  such  charge  by
the  defendant`s  agreement  to be subject to action by the commissioner
pursuant to section eleven hundred ninety-four-a of this article. In any
such case, the defendant shall  waive  the  right  to  a  hearing  under
section  eleven  hundred  ninety-four-a  of this article and such waiver
shall have the same force and effect as a  finding  of  a  violation  of
section  eleven  hundred  ninety-two-a  of  this article entered after a
hearing conducted pursuant to such section eleven hundred ninety-four-a.
The defendant shall execute such waiver in open court, and,  if  repres-
ented  by  counsel,  in  the  presence  of his attorney, on a form to be
provided by the commissioner, which shall be forwarded by the  court  to
the  commissioner within ninety-six hours. To be valid, such form shall,
at a minimum,  contain  clear  and  conspicuous  language  advising  the
defendant that a duly executed waiver: (i) has the same force and effect
as  a  guilty  finding  following  a  hearing pursuant to section eleven
hundred ninety-four-a of this article; (ii) shall subject the  defendant
to  the  imposition of sanctions pursuant to such section eleven hundred
ninety-four-a; and (iii) may subject the defendant  to  increased  sanc-
tions  upon  a  subsequent  violation  of this section or section eleven
hundred ninety-two-a of this article.  Upon receipt of a  duly  executed
waiver  pursuant  to  this  paragraph,  the commissioner shall take such
administrative action and impose such sanctions as may  be  required  by
section eleven hundred ninety-four-a of this article.

  (d)  In  any  case  wherein the charge laid before the court alleges a
violation of subdivision two-a of this section, any plea of guilty ther-
eafter entered in satisfaction of such charge must include  at  least  a
plea  of  guilty  to the violation of the provisions of subdivision two,
two-a or three of this section, and no  other  disposition  by  plea  of
guilty  to  any  other  charge  in  satisfaction of such charge shall be
authorized; provided, however, if the district attorney, upon  reviewing
the  available  evidence,  determines  that the charge of a violation of
this section is not warranted, such district attorney  may  consent  and
the court may allow a disposition by plea of guilty to another charge in
satisfaction  of  such charge, provided, however, in all such cases, the
court shall set forth upon the record the basis  for  such  disposition.
Provided,  further,  however, that no such plea shall be accepted by the
court unless such plea includes as a condition thereof  the  requirement
that  the  defendant  attend and complete the alcohol and drug rehabili-
tation program established pursuant to section eleven hundred ninety-six
of this article, including any assessment and treatment required  there-
by;  provided, however, that such requirement may be waived by the court
upon application of the district attorney or the defendant demonstrating
that the defendant, as a condition of the plea,  has  been  required  to
enter  into and complete an alcohol or drug treatment program prescribed
pursuant  to  an  alcohol  or  substance  abuse  screening or assessment
conducted pursuant to section  eleven  hundred  ninety-eight-a  of  this
article  or for other good cause shown. The provisions of this paragraph
shall apply, notwithstanding any bars to participation  in  the  alcohol
and  drug  rehabilitation  program  set  forth in section eleven hundred
ninety-six of this article; provided,  however,  that  nothing  in  this
paragraph  shall  authorize the issuance of a conditional license unless
otherwise authorized by law.

  11. No person other than an operator of a commercial motor vehicle may
be  charged  with or convicted of a violation of subdivision five or six
of this section.

  12.   Driving   while   intoxicated   or  while  ability  impaired  by
drugs--serious physical injury or death or child in the vehicle. (a)  In
every  case  where  a  person is charged with a violation of subdivision
two, two-a, three, four or four-a of this section, the  law  enforcement
officer  alleging  such  charge  shall  make  a  clear  notation  in the
"Description of Violation" section of a simplified  traffic  information
(i)  if, arising out of the same incident, someone other than the person
charged was killed or suffered serious physical  injury  as  defined  in
section  10.00 of the penal law; such notation shall be in the form of a
"D" if someone other  than  the  person  charged  was  killed  and  such
notation  shall  be  in the form of a "S.P.I." if someone other than the
person charged suffered serious physical injury; and  (ii)  if  a  child
aged  fifteen  years  or  less  was present in the vehicle of the person
charged with a violation of  subdivision  two,  two-a,  three,  four  or
four-a  of this section; such notation shall be in the form of "C.I.V.".
Provided, however, that the failure to make such notations shall  in  no
way  affect  a  charge for a violation of subdivision two, two-a, three,
four or four-a of this section.
  (b) Where a law enforcement officer alleges a violation  of  paragraph
(b) of subdivision two-a of this section and the operator of the vehicle
is  a  parent,  guardian,  or  custodian  of,  or  other  person legally
responsible for, a child aged fifteen years or less who is  a  passenger
in  such  vehicle, then the officer shall report or cause a report to be
made,  if applicable, in accordance with title six of article six of the
social services law.
(As amended by L.2009 c.496 effective 12/18/09)