The Carbonaro Law Firm
DWI IS A CRIME, DWAI IS A TRAFFIC INFRACTION AND THE DIFFERENCE BETWEEN THE TWO IS HUGE.
If you are convicted of DWI, you are considered a "convicted criminal." That sounds as bad as it is. Your conviction follows you the rest of your life. Contrary to popular belief, it does not come off your record after ten years or any period of time. There is no such thing as "expungement" of a criminal conviction in New York State. You will own the conviction forever.
On the other hand, DWAI is a non-criminal offense, a mere traffic infraction. It does not give you a "criminal record." This is not to say that the consequences of DWAI are not serious: manditory license suspension for 90, fines, insurance consequences, etc. But there is no stigma of being having a criminal record. You can truthfully represent that you have no criminal record if you are convicrted of DWAI even though you have been arrested, prosecuted and found guilty of this offense. This makes a reduced plea to DWAI such an attractive alternative to trial and why so many lawyers and clients seek this plea from the prosecutor. Note that the judge has no authoritative control over whether the plea is to DWI or DWAI (assuming it is a negotiated plea bargain to resolve the case), only the District Attorney can authorize a reduction in the charge to allow for this resolution of the case.
The penalties are also very different. While the maximum penalty for DWI is one year in jail, DWAI carries a maximum of only 15 days in jail. However, the penalty for DWAI is almost always a fine, program and license suspension. Though the penalties for DWI are similar, the fine is greater, the license suspension is twice the length (6 months) and there is the potential for probation, community service or even jail. In either case, the Court can permit a person to apply to the New York DMV for a conditional license, making it possible to drive to and from work and for work purposes only. The Court must specifically stay (or delay) its license suspension for 20 days at the time of sentence, allowing the motorist sufficient time to apply for the conditional license. Understand that the ultimate decision of whether to grant that application for such a license is up to DMV, not the Court.