Fri 23 Sep, 2022 Criminal Defense

What is the Penalty for a First-Time DUI in NYC?

Most people charged with a typical, first-time DUI can expect the outcome of their case to fall into one of three categories. From best to worst, they are dismissal, traffic infraction, and misdemeanor conviction.


The first category of possible outcomes is dismissal. In this category I include either the prosecution dismissing the case, the judge dismissing the case, or obtaining a not guilty verdict after trial.

A dismissal can happen when there is a substantial issue with the prosecution’s case like the breathalyzer machine was not properly calibrated or the breathalyzer technician made a mistake when performing the test, which renders the results as unreliable and inadmissible. 

Also, a dismissal can occur if the prosecution is not ready for trial as soon as they should be, and a defendant’s right to a speedy trial gets violated.

When a defendant obtains a not guilty verdict after trial, that is often due to issues with the reliability of the breathalyzer test, but it could be based on other indicators of the defendant’s sobriety. It could also be based on some unique situation, like an operation defense. 

A dismissal, or not-guilty verdict, is the best outcome, as you will have no record, no jail, and no fines to pay. It’s like the case never happened.

Traffic Infraction

When a dismissal isn’t possible, the next best sort of outcome that may be available for a first-time DUI defendant is a traffic infraction.

When the prosecution agrees to reduce the criminal charges down to a traffic infraction, it’s almost always dependent on the blood alcohol content result from the breathalyzer machine. Most district attorneys’ offices have standard protocol about when they will offer a traffic infraction. For many district attorneys’ offices, the blood alcohol content cut-off level is .12. As a reminder, the legal limit for driving in New York is .08. So, if you blow a .08, you will be charged with the crime of Driving While Intoxicated. If it is your first DUI, many prosecutors will eventually offer to knock the charges down if your blood alcohol content is .12 or lower. So, if your breathalyzer result is .08, .09, .10, .11, or .12, as a first-time DUI defendant, you can at least reasonably hope that your attorney will be able to get the charges reduced to a non-criminal offense. 

That said, this is the general rule, but it is dependent on the specifics of your case. If you blew a .08 or .09, but you ran into another vehicle, it’s very unlikely the prosecutor will easily offer to reduce the charges down to a traffic infraction.

Also, the other factors I mentioned in the dismissal section may be considered by the prosecution when they determine whether to offer to reduce the charges to a traffic infraction. So, let’s say you blew a .13, which is above most cut-offs where you can hope to get a traffic infraction. If your attorney were to discover that there were major issues with how the breathalyzer tests was conducted, your attorney could still possibly get the charges reduced to a traffic infraction.

So, if you have a first-time DUI criminal charge and your attorney is able to get a deal where the charges are reduced to a traffic infraction, the penalties you can expect are as follows:

First, your conviction will be to Driving While Ability Impaired, which is a traffic infraction, not a crime. It will be on your record, but it is not a criminal offense. Just like a parking ticket is on your record, Driving While Ability Impaired is also on your record. However, since it’s not a crime you can honestly say on any job application or anywhere else that you don’t have a criminal record. You are not a convicted criminal.

Second, your fines will be between $300-$500 as a part of your sentence, and the court will also impose a surcharge of almost $200. Finally, you will have to pay a “driver’s responsibility assessment” of $250 for 3 years.

Third, technically you can receive a jail sentence of up to 15 days. However, that is incredibly rare, and if your attorney is able to work out a deal so you get the traffic infraction, odds are that you will serve no jail time as part of your sentence.

Fourth, you will likely have to complete a short, two-day drinking and driving program.

Lastly, your driver’s license will be suspended for 90 days. However, once you begin the drinking and driving program, you can apply to receive a conditional license, which will allow you to immediately drive to certain locations, such as home or work.

Misdemeanor Conviction

If your case cannot be dismissed, the prosecution will not agree to reduce the charges down to a traffic infraction due to your breathalyzer results being too high, and you don’t want the risk of going to trial, you will get a conviction to the misdemeanor of Driving While Intoxicated.

If you plead guilty to driving while intoxicated, and it is your first DUI, you will very likely not get any jail time. A person is only likely to get jail time if they go to trial and lose, or there are other charges associated with their case, like vehicular manslaughter. Technically, you can face a sentence of up to a year in jail.

Your fines will be $500-$1000, and you will have to pay the court surcharge of approximately $200 plus the driver’s assessment fee, which is $750 over the course of three years.

Your license will also be revoked for 6 months, and you will have to install an ignition interlock device on any vehicle you own for up to a year.

If you’ve been charged with a DUI in New York, give me a call for a free consultation. I can assess your case and determine the best path forward.