DWAI (NY) and O/O Companies

Has anyone had any luck explaining the difference between a DWAI and a "DUI/OUI/DWI" to an O/O company? (Impaired vs Intoxicated/Influence) there is a difference from a federal definition and legal standpoint.

Long story short I caught a DWAI in NY a few years ago. In NY a DWAI is essentially a "Bad" traffic violation, not quite a DWI, but anything from .05-.07 is considered DWAI. It has very loose conviction criteria, You don't have to be "Driving" and they don't need any breath or blood test. It can simply be based on the officers observations, circumstantial evidence, or your own admissions. It is NOT considered serious or major by the FMCSA and not sanctionable under 383.51. (less than a cell phone violation)

Fast Forward: I had been scraping by under my own authority for the past 2 years, the violation is 3.5ys old. I had give up my authority in December because I had to take a few weeks off the road to deal with another matter and wasn't able to cover insurance. Everywhere I apply says no DUI in the past 5-10 years. I try to explain and they typically say "Ya, ok, same thing"

I get it, It looks bad, but its literally the only ticket I have. 12ys exp, Over 1m safe miles, No reportable or at-fault accidents in 15ys+, one minor violation 5ys ago.

 

Another thing that is killing me is NY decided to code my suspension as "Disqualified" instead of suspended on my CDLIS driving record. which makes any explanation I might have seem like BS to a recruiter or safety department. They refuse to even acknowledge it. I've escalated it to the FMCSA, and am in the process of filing a request for determination of preemption with the FMCSA to try to get them involved and maybe get NY to stop treating it like a federally sanctioned violation. chances are very slim but if successful, it will be a benefit to others and future cases which is my primary goal. The domino effects from this mess has cost me over 4M in the past 3 years.

 

I don't think I asked but since you felt the need to offer your opinion, I'll agree with you, that is my opinion as well, we should be held to a higher standard. Legally that is not the case from a federal perspective. I'm very familiar with the federal regulation. NY applies the 1yr sanction based on a misinterpretation of the changes brought about when MCSIA 1999 was enacted. If you don't believe me, look at any of the other 3 or 4 states with the same violation. The FMCSA uses the NHTSA definition of "under the influence/Intoxicated" As does NY who also specifies "Impaired" separately. Reading 383.51, then check out the AAMVA ACD Manual. Any impaired violation without a known BAC is not federally sanctioned. ACD code A25 - Driving or operating while impaired is NOT considered Serious or Major by the FMCSA, technically less than a cell phone ticket. You can bring up the BAC, but as long as NY relies on case law that stipulates that chemical evidence is not required to convict, it is generally not noted or used in court. The courts would rather have loose conviction criteria and let an officers opinion be enough to convict than to worry about machine calibrations, training, and evidence handling being brought to trial. They do this to keep the DA's conviction rates in the 95%+, defense attorneys generally wont suggest you take it to trial, even for CDL holders because they are not allowed to reduce it and you essentially can't beat it.