New York Drunk Driving – DWI / DUI – Primer: New York Criminal Laws & Criminal Defense

The first defense to any drunk driving charge is simple. Don’t do it. Unfortunately, we all have and will continue to make mistakes whether they are criminal in nature or not. In the realm of criminal law, however, a mistake made by a a good and honest person is often magnified exponentially. Regardless of how it came to be, a charge or allegation of Driving While Intoxicated (DWI / DUI) in New York is a serious offense codified in Vehicle and Traffic Law (VTL) 1192. While the following is not an in depth analysis of the DWI / DUI laws in New York State, the offenses listed below are some of the most common charges:

VTL 1192.1 – Driving While Ability Impaired

This offense is a “violation” and often times the “deal” offered by prosecutors. If you do not already have one, a plea to VTL 1192.1 will not give you a criminal record. However, this violation will show up on record checks even though it is not a criminal conviction. There are fines and programs, such as the DDP, that are often part of pleas to this offense. Moreover, your license will be suspended for three months as a first time offender.

VTL 1192.2 – Driving While Intoxicated – Per Se

This offense is a crime and a plea or conviction will result in a criminal record. In New York State, if your BAC is .08 or greater you are considered per se intoxicated. Even in the event you do not display the common signs of intoxication, blood shot eyes, unsteady gate, slurred speech, etc., if you register a .08 or greater reading of alcohol in your system, it is an “automatic” presumption of intoxication pursuant to VTL 1192.2. Having said that, just as with any charge, your New York criminal defense attorney can challenge the basis of the stop of your vehicle and the results of the BAC reading. It is always the prosecutions burden to prove each and every element of the crime beyond a reasonable doubt. The sentencing for this offense is more significant than VTL 1192.1 and carries a six month revocation of your license. Not only is there a greater fine, but a in the event you are incarcerated the term is longer as well. It is important to note that New York State is requiring that those convicted of this offense, and any criminal DWI conviction, have their vehicles outfitted with a device similar to the intoxilizer where one must blow into it in order to get their vehicle started.

Keep in mind that the those with higher “blows” are less likely to receive an offer of VTL 1192,1. Some jurisdictions don’t make offers of violations once you start registering in the vicinity of a .13 or .14. Moreover, if there is an accident or children in the vehicle, other more serious crimes may be charged.

VTL 1192.3 – Driving While Intoxicated – Common Law

This crime carries the same punishment as VTL 1192.2 and can be charged in addition to VTL 1192.2 or VTL 1192.1. “Common Law DWI” is based on observations by a police officer. If you have slurred speech, blood shot eyes, alcohol on your breath, etc., this crime may be charged even without registering a reading of your BAC. In fact, when one refuses to “blow,” for example, the refusal by the accused will result in this charge. Although not a criminal matter, a refusal will also result in the revocation of your license by the New York State Department of Motor Vehicles for one year even if you are ultimately acquitted of the crime. Having said that, you will be granted a “Refusal Hearing” where you can challenge the validity of your refusal and attempt to get your license reinstated. Additionally, from the perspective of the criminal case, these hearings are critical because it will give your New York criminal defense lawyer the ability to cross examine the police officer without the presence of a prosecutor.

VTL 1192.4 – Driving While Intoxicated – Drugs

This crime is the same level offense as VTL 1192.3 and VTL 1192.2, but the accusation is that drugs, not alcohol, is the culprit behind your intoxication. Often times, just as it is in the common law crime, it is the accused’s statement at the scene or precinct (“I only had a couple of beers” or “I smoked pot a an hour ago”) that makes their case more difficult to defeat. Remember, the police are doing their job. Be respectful, but there is no reason to or legal requirement for you to make an admission of any crime. It will be used against you.

Continue reading for addition DWI / DUI crimes and punishments
VTL 1192.2a – Aggravated Driving While Intoxicated, Per Se

Although a misdemeanor like VTL 1192.2, this crime is magnified and carries a potential revocation of your license by up to one year and even greater fines. Where VTL 1192.2 has a per se level of intoxication of .08, Aggravated DWI, pursuant to VTL 1192.a, requires a BAC reading of .18 or greater. Additionally, plea options are limited as set forth in the law.

VTL 1192.2ab / VTL 1192.2(a)(b) – Leandra’s Law – Felony DWI with Children

Leandra’s Law allows for a sentence of up to 1 and 1/3 to 4 years in state prison as well as fines ranging between $1,000 to $5,000 for a DWI / DUI where a child less than 16 years old is in the vehicle. This crime is an “E” felony.

For more information on VTL 1192.2a please follow the highlighted link.

Keep in mind that the above list of statutes is not exhaustive and the analysis of those statutes are very brief. In fact, although not addressed here, a second conviction for DWI may lead to a felony offense. You should consult with a New York DWI criminal defense attorney in the event you are accused of DWI / DUI. Once you do, discuss how you may be eligible for a conditional license to drive to work starting 30 days after your case began. Moreover, ask how you may be able to get a conditional license sooner than 30 days if you obtain a “hardship hearing” (this should be requested at your arraignment).

For further information on New York Driving While Intoxicated crimes (DWI / DUI) as well as a “BAC calculator” (for informational purposes only – not a scientific tool to be relied on in any way) please follow the highlighted link. Additional information, case law and legal decisions can be found on the DWI / DUI section of the New York Criminal Lawyer Blog.

Saland Law PC is a New York criminal defense firm representing clients throughout the New York City region. The founding New York criminal defense lawyers at Saland Law PC served as Manhattan prosecutors prior to starting the firm.

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