Hit a tree, totaled the car and charged with DWI in New York: what the charge means for your insurance, and the first call to make

Attorney Answer

Talk to a criminal defense lawyer first. The DWI charge is the most serious part of this, and what you tell your insurer or anyone else about drinking can become evidence in it. For the car, damage to your own vehicle in a one-car crash is paid, if at all, by collision coverage, on your policy's terms. For any injuries, New York lets a no-fault insurer refuse benefits to a driver hurt while intoxicated — but not for emergency hospital care — and the insurer has to prove it.

The charge. Vehicle and Traffic Law § 1192(3):

3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

If a chemical test showed .08 or more, your license is suspended while the case is pending. Vehicle and Traffic Law § 1193(2)(e)(7):

a. Except as provided in clause a-1 of this subparagraph, a court shall suspend a driver's license, pending prosecution, of any person charged with a violation of subdivision two, two-a, three or four-a of section eleven hundred ninety-two of this article who, at the time of arrest, is alleged to have had .08 of one percent or more by weight of alcohol in such driver's blood as shown by chemical analysis of blood, breath, urine or saliva, made pursuant to subdivision two or three of section eleven hundred ninety-four of this article.

If you refused a test, that is a separate Department of Motor Vehicles matter with its own hearing under Vehicle and Traffic Law § 1194(2)(c).

Your own car. Whether your policy pays for the car turns on its collision coverage and its exclusions. Read them, or have a lawyer read them, before you describe the crash to the insurer.

Medical bills. Insurance Law § 5103(b) lets a no-fault insurer exclude certain drivers:

(b) An insurer may exclude from coverage required by subsection (a) hereof a person who:

(2) Is injured as a result of operating a motor vehicle while in an intoxicated condition or while his ability to operate such vehicle is impaired by the use of a drug within the meaning of section eleven hundred ninety-two of the vehicle and traffic law; provided, however, that an insurer shall not exclude such person from coverage with respect to necessary emergency health services rendered in a general hospital, as defined in subdivision ten of section two thousand eight hundred one of the public health law, including ambulance services attendant thereto and related medical screening. Notwithstanding any other law, where the covered person is found to have violated section eleven hundred ninety-two of the vehicle and traffic law, the insurer has a cause of action for the amount of first party benefits paid or payable on behalf of such covered person against such covered person.

Two things follow. The insurer must prove both the intoxication and that it caused the crash: in Westchester Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 44 A.D.3d 750 (2d Dep't 2007), a case involving a single-car crash into a tree followed by a DWI arrest, the insurer had not proved either. But the same court held that the police report of the crash and arrest was enough to raise the question. And under the last sentence quoted above, an insurer that pays can come back for what it paid if you are found to have violated § 1192.

The DMV report. Vehicle and Traffic Law § 605(a)(1):

(a) 1. Every person operating a motor vehicle, except a police officer (as defined in subdivision thirty-four of section 1.20 of the criminal procedure law), a correction officer, or a firefighter, operating a police department, a correction department, or fire department vehicle respectively while on duty, if a report has been filed by the owner of such vehicle, which is in any manner involved in an accident, anywhere within the boundaries of this state, in which any person is killed or injured, or in which damage to the property of any one person, including himself, in excess of one thousand dollars is sustained, shall within ten days after such accident, report the matter in writing to the commissioner.

A totaled car is likely damage over $1,000. The report is a written statement about the crash, so ask your lawyer about it before you file it.

What you can do

1. Talk to a New York criminal defense lawyer before you speak to the police, an insurer or anyone else about this, and do not write out your account of what happened for anyone in the meantime. What you say can be used as evidence.

2. Note the date of your arraignment and every court date after it.

3. Ask your lawyer about the ten-day DMV report before you file it.

4. Tell your insurer about the crash, as your policy requires, but ask your lawyer first how to do that without discussing drinking.

5. If you were hurt, get care and keep the records.

⏱ Time limits apply. The DMV report is due within ten days of the crash under Vehicle and Traffic Law § 605(a)(1). A refusal hearing, if you refused a test, has its own schedule under § 1194(2)(c). The court dates on your papers control the criminal case.

A New York attorney can look at the specifics quickly, and most offer a short first conversation at no cost. A few minutes on your actual facts is worth more than any general guidance, this page included.