Common Law DWI

NY VEHICLE TRAFFIC LAW § 1192.3: COMMON LAW DWI

A violation of Section 1192.3 of the Vehicle and Traffic Law (VTL), otherwise known as the crime of Common Law DWI, is typical in many DWI cases because it relies on evidence entirely distinct from any registered BAC, or blood alcohol content, from a Breathalyzer device. Unlike the crimes of Per Se and Aggravated Per Se DWI, a charge of Common Law DWI does not require prosecutors to prove a certain percentage of alcohol was found in your system. Rather, prosecutors must establish, generally through circumstantial evidence, that you operated a motor vehicle while in an intoxicated condition. Such circumstantial evidence can include slurred speech, an unsteady gait, the smell of alcohol on your breath and erratic driving. At the Law Offices of Jeffrey Lichtman, our experienced New York DWI attorneys have handled dozens of such cases and obtained favorable results; after all, the witness testifying about this evidence can be cross-examined like any other witness in a criminal case.

Relevant Provisions of Section 1192 of the New York Vehicle and Traffic Law for “Common Law” DWI

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

VTL 1192.3

If you refused a chemical breath test at the precinct, the good news is that prosecutors generally cannot stack DWI charges against you at arraignment. If there is no proof of any registered, illegal BAC results from a Breathalyzer or similar chemical breath test, then the essential elements for the misdemeanor offenses of Per Se and Aggravated Per Se DWI cannot be proven. Unfortunately, as any experienced New York DWI lawyer could tell you, at arraignment prosecutors will make a motion with the court to immediately suspend your driving privileges pending the result of a Refusal hearing held by the DMV on the circumstances surrounding the refusal to submit to chemical testing. Additionally, prosecutors may be able to utilize powerful legal inferences at your later trial on a Common Law DWI charge: that your refusal to take a chemical breath test was evidence of your consciousness of guilt for having been caught drunk driving. Of course, prosecutors can only do this if they can prove at the Refusal hearing that you were properly warned by law enforcement before the refusal was made – a point of contention that can be refuted through the expertise and advocacy of the best New York DWI defense lawyers.

If you are eventually convicted for the offense of Common Law DWI, the following penalties and punishments may be imposed for a first time offender:

At the Judge’s Discretion
  • Incarceration in jail for up to one year
  • A period of probation of up to three years
  • A fine of $500 to $1,000
  • Revocation of vehicle registration for a period of at least six months
  • Attendance at a session of a victim impact panel
Penalties Required By Statute
  • Surcharge Fee of $370
  • Crime Victim Assistance Fee of $25
  • Revocation of License for a period of at least six months
  • Required installation of ignition interlock device in any motor vehicle owned or operated by the defendant for a period of at least six months

Any individual whose license has been revoked for having been convicted of a VTL § 1192.3 offense may be entitled to receive a conditional license for the period of suspension of driving privileges.

Contact the Law Offices of Jeffrey Lichtman Today for a Free Consultation

If you’ve been arrested for a DWI, fighting your case with attorneys who are not experienced criminal lawyers who handle DWIs in New York, Brooklyn, Queens, Long Island and Westchester can make your bad situation worse. If you are charged with a DWI or any crime, contact the experienced criminal attorneys at the Law Offices of Jeffrey Lichtman at (212) 581-1001 and discuss your case. We are available to prepare a defense and fight for your rights today.