It is not unusual in Rochester area courts for a driver charged with Driving While Intoxicated (DWI), which a misdemeanor, to be convicted after trial of the lesser offense of Driving While Ability Impaired by Alcohol (DWAI), which is normally only a traffic infraction.

A DWAI charge may be raised to a misdemeanor, however, if the defendant has been convicted of two or more alcohol-related driving offenses in the past ten years.

While this would seem to create a situation where a driver with prior offenses may be acquitted of misdemeanor DWI at trial only to be convicted of misdemeanor DWAI, the courts have generally ruled that this is not the case.

In reaching this conclusion, the courts have noted the obvious principle that because both offenses are unclassified misdemeanors, misdemeanor DWAI cannot be considered a “lesser” offense than misdemeanor DWI.

They also have noted that there are certain facts that must be proven at trial to obtain a conviction for misdemeanor DWAI that are not elements of a misdemeanor DWI charge – the two prior alcohol-related convictions.

At a typical misdemeanor DWI trial, no evidence will be presented regarding these prior convictions because they are not relevant to the misdemeanor DWI charge.

The courts have ruled that when the prosecution has failed to obtain a conviction for the DWI charge but obtained a conviction for the lesser offense of DWAI, there is no legal basis that would allow the prosecution to essentially re-open the trial and present new evidence in an effort to have the DWAI conviction raised from a traffic violation to a misdemeanor.

As a result, a defendant in this situation may only be convicted of DWAI as a traffic infraction, not a misdemeanor.

If you have been arrested for DWI and have prior offenses, we are experienced lawyers who can help you at 585-484-7432.