Driving While Intoxicated (DWI) in Violation of NYS VTL Sec. 1192.3.

November 19, 2014

Driving While Intoxicated.     No person shall operate a motor vehicle while in an intoxicated condition.

Although this may seem like a pretty straightforward law (don’t drive while intoxicated!), proving someone has violated it is really not that simple.  Most DWI defense attorneys chomp at the bit when a lone 1192.3 charge comes through the door because there’s no BAC to cause headaches.

BAC’s are bad.  Juries love BAC’s…”A computer says that the BAC was .10, so it must be accurate, and the defendant must be guilty!”…says the jury.

And even tho DWI defense attorneys should, at a minimum, attempt to discredit a chemical test result/machine when there is a BAC, at the end of the day juries are reluctant to disregard what they consider to be hard evidence of intoxication unless there was proof of a malfunction or some other bona fide error.

But you don’t have to deal with that on an 1192.3 charge!  The fertile ground to explore in a VTL 1192.3 charge is the subjective observations of the arresting officer and any other witnesses.  To a criminal defense attorney, that’s good stuff! But what does that mean?

Opinion! That’s what that means.  Although a major factor in an 1192.3 arrest is the driver’s performance on the Standardized Field Sobriety Tests (which aren’t really very standardized), it should also be based upon the arresting officer’s overall opinion (formulated from his or her entire observations) that the driver is intoxicated.  Think about that for a second.  The arrest is premised upon the observations of a person who (in most cases) has never met the driver before; has no idea how the driver looks, behaves or moves on any given day.

Obviously, if a driver has to clear the beer cans from his lap before he pours himself out of the car and throws up clear vodka on the officers shoes, that may be a bit of a no-brainer.  But that’s not the typical situation (I hope!).

With regard to all DWI stops (for 1192.2, 1192.3 or otherwise), the officer is trained to observe the driver from the instant contact is made (meaning, once they come into contact with the vehicle, not necessarily the driver).  They will watch for erratic operation or a violation of a traffic law (or worse) and use that as the basis to initiate the stop.  The officer will observe when and how the vehicle responds to the direction to pull over.  After the officer arrives at the vehicle, observations through the door/window are being made of the driver’s physical appearance, eyes, odor, speech and motor coordination; observations of how the driver exits the vehicle, and ultimately how the driver performs on the Standardized Field Sobriety Tests (SFSTs).  And if there’s no BAC (and there wouldn’t be for just an 1192.3 charge), that’s the prosecutor’s entire case, ladies and gentlemen!***

And what fun a skilled DWI defense attorney can have cross-examining the arresting officer about his or her subjective opinions, subjective application and interpretation of the SFSTs (physical tests requiring movement and coordination not normally engaged in by the every day driver), and the officer’s subjective state of mind (before any probable cause has been established) as s/he pulled someone over at 2:00 AM on a Friday night for an innocuous speeding violation.

(*** Generally in a case where the only DWI related charge is an 1192.3, it may be because the driver refused to provide a sample for chemical test analysis (i.e., a “refusal”).  In that case, there are certain consequences of the refusal that come into play at the criminal trial.  Specifically, in most circumstances the jury may be given a “refusal charge,” which permits to prosecutor to inform the jury that the driver’s refusal to provide a sample was a conscious decision because the driver knew he or she would fail the test, i.e., “consciousness of guilt.”  That can be difficult to contend with at trial, but not impossible.  Similarly, there will be the civil consequences of a refusal; that topic is dealt with in a previous entry.)

Cases charging just a violation of 1192.3 occur a lot.  And although they are typically hampered by a related refusal charge, the skilled DWI defense attorneys at Catalano & Carpenter LLP know how to effectively challenge the evidence of an 1192.3 arrest, minimize or leverage the refusal, if one exists, and in many cases are able secure a pre-trial plea or trial verdict of a DWAI violation or other non-criminal resolution.

No matter the charge, a DWI arrest is serious and can result in serious and immediate consequences.  If you have been arrested for any DWI offense, call the knowledgeable and experienced DWI defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com to schedule a free consultation.

Prior dispositions do not guarantee future results.