NY “Refusal” and “Common Law” DWI: VTL 1192(3)

Unlike DUI arrests in New York charging VTL 1192(2) where you are accused for drunk driving with a .08 or higher BAC, VTL 1192(3) has a distinct set of elements even if it is functionally the same offense. Experienced DWI lawyers routinely see VTL 1192.3 charged as either a “Common Law” or “Refusal” DWI, both as a standalone offense or along with other vehicular crimes. These misdemeanors routinely involve a defendant who refused to “blow” into an intoxilyzer or similar device at a NYC police precinct or police station in a Westchester, Rockland, Putnam or other county’s municipality.

The elements a District Attorney must prove beyond a reasonable doubt are fairly simply. That is, you were operating a motor vehicle – car, motorcycle, commercial truck, etc. – and while doing so you were intoxicated. Seems quite clear, no? Hidden within these elements, however, are additional factors that prosecutors must establish. For example, your vehicle operation need not necessarily translate to actually driving, but your operation must be on a “public highway.” Further, an “intoxicated condition” is when you, having consumed alcohol, are incapable of exercising the physical and mental abilities to operate your vehicle as both a reasonable and prudent driver.

Remember, because the law does not mandate a chemical test or BAC reading, the police, prosecutors and judges can examine all surrounding facts and circumstances when determining whether you were drunk. Further, because the police paperwork sets forth the pre-determined traits of intoxication, police officers will routinely indicate that you were unsteady on your feet, had blood shot and water eyes, smelled from alcohol and displayed other characteristics or indicia of being drunk.

The following penalties and punishments are possible upon conviction for VTL 1192(3):

• As much as one year jail
• Up to three years probation
• Community service
• License revocation for six months (Common Law) or a one year revocation (Refusal)
• A fine between $500 to $1,000
• Impaired Driver Program (IDP)
• Driver responsibility assessment of $250 a year for three years
• Victim Impact Panel
• Vehicle interlock device
• Increased car insurance
• Potential seizure of your vehicle by law enforcement

If you refuse to “blow,” a jury can, but is not required to, conclude that your failure is evidence that the tests would have revealed your intoxication. This assumes, of course, that the police provide the proper instructions.

Separate and apart from the criminal proceeding, if you refused to provide a chemical test the New York State Department of Motor Vehicles (DMV) will conduct its own hearing. This “trial,” called a Refusal Hearing, will occur not at the courthouse but at the DMV. The law allows the Judicial Hearing Officer (JHO) overseeing the matter to make a finding against you whether or not the arresting police officer testifies. Subject to a lesser standard than proof beyond a reasonable doubt, these Refusal Hearings are often difficult but allow your DUI attorney to cross-examine the officer without the benefit of a prosecutor’s presence. Ultimately, if there is a finding that the instructions were properly provided and you knowingly refused after there was probable cause to arrest, the JHO can revoke your license to drive in NYS.

While failing to “blow” may benefit your criminal case because prosecutors will not be able to lean on chemical evidence, juries can make presumptions about this failure. Further, you will find yourself at risk of a license revocation. Regardless, you can and should implement the right strategies to either reduce the charges to a non-criminal VTL 1192.1, Driving While Ability Impaired, or defeat the case in its entirety at the pleading, hearing or trial stage. Whether you are eligible for a conditional license or not, it is critical to thoroughly examine the DWI paperwork, the misdemeanor complaint and complete your own investigation when necessary. After all, the police could have improperly administered your field sobriety test, failed to mirandize you, improperly advised you of your refusal rights, or arrested you for doing the “right thing” for sleeping in your parked car even if the ignition was on.

Only when you are armed with the best and strongest defense can you overcome one of any number of New York drunk driving crimes. The criminal lawyers and former Manhattan DWI prosecutors at Saland Law stand ready with their experience, knowledge and advocacy to protect your name, career and future.

Call the New York City DUI attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today.