“Common Law” DWI in NY: Driving While Intoxicated – VTL 1192.3

It comes in different shapes and sizes – DWI (Driving While Intoxicated), DWAI (Driving While Ability Impaired) and DUI (Driving Under the Influence) – but regardless of the particular offense in New York (both NYC and Westchester), prosecutors and judges take these charges very seriously. As a former Manhattan prosecutor and as a criminal defense attorney at Crotty Saland PC, I have handled countless DWIs, DWAIs and DUIs whether they are charged as VTL 1192.1, VTL 1192.2, VTL 1192.2-a or VTL 1192.3. One particular question that I have heard asked in various forms is “how can I be charged with DWI if there is no breathalyzer or intoxilizer that indicates how much alcohol I had in my system?” The answer to this question is quite simple. As we call it in the criminal law field, a DWI without a chemical test result and one based on an officer’s observation is “Common Law” DWI.

Unlike VTL 1192.2 which requires a reading of alcohol in a person’s blood to be .08 of one per centum or more, a person is guilty of Driving While Intoxicated pursuant to “Common Law” VTL 1192.3 if they operate a motor vehicle while in an intoxicated condition. Well, if there is no reading or analysis, what does law enforcement hang it’s hat on to establish this crime? Very often the police cite certain characteristics of the accused across the board. The officers claim that that the accused had “water bloodshot eyes,” “slurred speech,” “the smell of alcohol on their breath,” and they were “unsteady.” Maybe the police allege that a person was asleep at the wheel, was driving erratically, or even threw up on themselves. One of the easiest ways they establish your lack of sobriety is based on the boneheaded mistake that people of all walks of life make when confronted by the police regardless of the accusation. That is, they make an admission. Something as simple as “I only had a few (or couple) of beers.” Well, if you didn’t present any of the characteristics mentioned above, but you stated you had a couple of beers, you probably just bought yourself a trip to the precinct and ultimately before a judge.

As I always state, DWI is a serious and terrible offense. The lives of many innocent people are put in harm’s way if one gets behind the wheel intoxicated. That being said, an accusation or an arrest is not evidence of guilt. It could be that you did have two beers, but you are 6’4 230 pounds. Maybe you did have bloodshot eyes because you had not changed your contact lenses for a day or you were in a room full of cigarette smokers. Are these excuses? No, and in fact may be legitimate reasons why a wrongful conclusion was made that you were driving drunk.

Whatever the set of facts, fighting a DWI with counsel that is not experienced in criminal law and DWIs in particular can and often does compound a bad situation. If you are accused of any crime, contact the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC. We are ready and able to pursue any legal and ethical avenue to protect your liberty, integrity and rights.

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