When most people think about a first-offense DWI (Driving While Intoxicated) in New York, they assume it’s automatically a misdemeanor — and in many cases it is. However, the reality under New York law is far more serious: yes, a first-offense DWI can be charged as a felony under certain circumstances.
Understanding how and when this can happen is crucial for anyone facing DWI charges, especially given the lasting consequences a felony conviction carries.
DWI Charges in New York: Misdemeanor vs. Felony
Under New York Vehicle & Traffic Law § 1192, a typical first DWI offense is classified as a misdemeanor. Penalties may include fines, license suspension, community service, and even jail time.
But a critical exception exists: when a DWI involves an injury or another aggravating factor, the charge can be elevated to a felony.
Felony DWI: When Can a First Offense Be Elevated?
In New York, a DWI can become a felony — even if it’s technically a first offense — in these key situations:
When Someone Is Seriously Injured
If a person causes serious physical injury while driving drunk, prosecutors can charge the driver with Aggravated Vehicular Assault (a class D felony) or a related felony offense. Serious physical injury typically means injuries that create a substantial risk of death, serious disfigurement, or prolonged incapacitation.
This means a first-time DWI driver who injures someone — even unintentionally — could be prosecuted as a felon under New York law.
Leandra’s Law: Zero Tolerance for Underage Passengers
Another way a first-offense DWI can become a felony relates to Leandra’s Law.
In 2009, New York enacted Leandra’s Law (Vehicle & Traffic Law § 1192-2-a), named after 11-year-old Leandra Rosado, who tragically died in a crash caused by an intoxicated driver.
Leandra’s Law makes it a felony to operate a motor vehicle while intoxicated with a passenger who is 15 years old or younger.
This offense is formally known as Aggravated DWI with a Child Passenger and is a class E felony — even on a first offense. The statute reflects the Legislature’s determination that driving drunk with a child in the vehicle poses a heightened threat to public safety.
Under Leandra’s Law:
A driver can be charged with a felony on a first DWI if a child 15 or younger is in the car.
There is also a mandatory minimum of community service and treatment evaluations, and the driver’s license will be revoked on top of criminal penalties.
Unlike a typical DWI, jail is presumed — meaning courts must impose some incarceration unless specific exceptions apply.
Why It Matters: The Consequences of a Felony DWI
Being charged with — and especially convicted of — a felony DWI has dramatic consequences beyond criminal penalties:
Lengthy prison terms
Long-term or permanent loss of driving privileges
Restrictions on housing, employment, and professional licensure
Loss of certain civil rights (e.g., voting, firearm ownership)
Even if charges are ultimately reduced or dismissed, the stakes at the outset require experienced legal defense.
Aggressive Defense Is Critical
If you or a loved one is facing DWI charges — whether it’s a first offense, involves injuries, or includes a child passenger under Leandra’s Law — you need a criminal defense attorney who understands:
How prosecutors build felony DWI cases
The complexities of field sobriety and chemical test procedures
Constitutional protections like unlawful stops and breath test refusals
How to pursue reduced charges or alternative resolutions
Conclusion
Yes — a first-offense DWI in New York can be charged as a felony, especially in cases involving serious injury or where a child passenger is present under Leandra’s Law. The consequences of felony DWI are significant, and the importance of knowledgeable legal defense cannot be overstated.
If you’re facing DWI charges, don’t wait. Contact an experienced DWI defense attorney Dominic Saraceno immediately to protect your rights and your future.
