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Can a conviction for Driving While Ability Impaired (DWAI) (VTL §1192-1, a violation) be expunged or sealed in New York State?

Frequently our law firm receives inquiries regarding a DWAI conviction that appears on a lifetime drivers abstract or a criminal record printout. Often times these convictions are over 10 years old and clients ask whether such convictions can be expunged or sealed. The quick answer is no. A conviction for DWAI cannot be sealed or expunged in NYS.

New York State does not “expunge” criminal court records. Criminal Procedure Law §160.50 requires that a Court seal all records relating to criminal charges are resolved in favor of the accused. This is akin to an “expunged” record.

New York State Criminal Procedure Law §160.55 also permits a court to seal all records if the resulting conviction is a noncriminal offense. The presumption is that such records shall be sealed, unless good cause is shown by the prosecution why such sealing would not be in the interests of justice.

A conviction for Driving While Ability Impaired (VTL §1192[1]) is a noncriminal offense. However, CPL §160.55(1) specifically excludes convictions of VTL §160.55. Therefore, even though VTL §1192(1) is a noncriminal offense, a conviction for the same for the same may not be sealed under New York State Criminal Procedure Law. The full text of CPL §160.55(1) is listed below.

Upon the termination of a criminal action or proceeding against a person by the conviction of such person of traffic infraction, or violation of loitering as described by paragraph (d) or (e) of subdivision one section 160.10 of this chapter or the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, unless the district attorney upon motion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interest of justice require otherwise and states the reasons for such determination on the record, the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction (CPL §160.55[1]) (emphasis added).