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The New York DWI Lesser Included Offense of DWAI Alcohol
A "LIO" or lesser included offense is important at a
DWI trial as well as in DWI plea bargaining in New York. A lesser included offense (criminal
or non-criminal) lacks one or more of the elements of a higher level crime.
A DWAI is driving while you are impaired while
a DWI is driving while you are intoxicated. Intoxicated in this context means
more drunk or out of it than being merely impaired. Intoxication or impairment
are really words or terms of degree. Impairment is the lower degree of
alcohol use in New York while intoxication is considered the higher use. In New York State in
particular, intoxication charges and the word intoxication itself are specific to alcohol alone and not other drugs.
In terms of offense levels, DWI is a crime (a
misdemeanor), and DWAI is (a violation=non-criminal). Criminal behavior is
generally of a higher degree and standard than non-criminal behavior.
It is impossible to commit DWI (the greater
offense) without, at the same time and by the same conduct, also committing
DWAI (the lesser offense).
The lesser included offense of DWAI may play an
important role in a New York DWI. These include:
•
Plea bargaining: Plea bargaining any DWI down to
a DWAI is in the discretion of both the court and the prosecutor.
•
Jury charge (jury instruction): In looking at all
the DWI evidence, is there is any reasonable view of the evidence that you may
have committed the lesser offense of DWAI but not the higher offense of DWI,
then the jury may be instructed on the lesser offense.
•
Guilty plea: Whether your plea acceptance was
sufficient. When you plead guilty to the lesser included offense of DWAI, then no
factual allocution (acceptance) is required. In other words you will not have
to provide the judge with specifics as to your alcohol use and driving at the
time of your arrest.
If you have questions about a New York DWI or DWAI charge, call us at 607-229-5184.
BY NEWMAN & CYR
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