I was arrested for DWI. Why did I get charged with DWI twice?

May 2, 2014

If you were recently arrested for DWI, let me say that I’m sorry you have to go through this.  But this is no time to wallow in self-pity. The consequences of even the DWI arrest itself can be catastrophic for you.  So it is imperative you speak to an experienced DWI defense attorney immediately to protect yourself and your rights.

So now that the dust has settled and you’ve had a chance (or finally forced yourself) to sit down and actually look through the fistful of papers you were given on the night (or early morning) in question, you’ve probably noticed that you were given two separate tickets for two different DWI charges (assuming you provided a chemical test sample at the station).  Before you react in one of two typical ways – 1) you get excited thinking you’re going to beat this on a technicality because they issued wrong/too many tickets, or 2) you’re overcome with a sense of dread because you’ve been charged with two DWI’s – just take a deep breath and read on.  Although the second reaction above is unfortunately the more correct one, it does not mean the end of the world or that you’re screwed x 2.

Yes, you have been charged with two separate counts of DWI.  The first accuses you of driving with a blood alcohol content (BAC) of .08 or more in violation of NYS VTL 1192.2.  This is called per se DWI; “per se” very loosely translated means “it is what it is.” You do not need to show any signs of impairment to catch this charge.  If you blow at the station and the result is a BAC of .08 or higher, boom…here’s your 1192.2 ticket.

The second ticket charges you literally with “driving while intoxicated”, in violation of NYS VTL 1192.3.  That simply means that based on the arresting officer’s subjective opinion, you were driving while your ability to do so as a reasonably safe and prudent person was impaired by alcohol.  For example, you were all over the road, reeked of booze, and failed in glorious fashion every single field sobriety test that was administered to you…the hat-trick.  So if you are pulled over and arrested for DWI but refuse to provide a chemical test sample, rest assured you will still be issued a ticket for 1192.3.

As I said, these two charges – despite both accusing you of DWI – are in fact two separate and distinct offenses.  The evidence required to convict on one is different from the other.  And should your matter proceed to trial, you can indeed be convicted of one and beat the other, be convicted of both, or beat both.  Most plea bargains, however, will only require that you plead guilty to one count (or, ideally, one reduced count) to cover the other.  So at the end of the day, you’ll stand convicted of only 1 charge instead of two; thus the incentive to take a plea in some cases.


Defending DWI charges is a complicated matter requiring knowledge and application of difficult scientific principles in addition to a thorough understanding of the DWI laws themselves and all collateral non-criminal consequences.  If you find yourself in the unfortunate situation of being charged with DWI, call me, Todd W. Carpenter, Esq. at Catalano & Carpenter LLP (845) 454-1919 immediately to schedule a free consultation.