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NY Appellate Court Discusses Methods of Measuring Intoxication in DWI Cases


DWI in NY: Driving While Intoxicated – VTL 1192.3 Driving While Intoxicated is a dangerous habit among the drivers in the country. It is said that it is not just dangerous; the law likewise punished the drivers who are found to be intoxicated while driving. Driving While Intoxicated is just a part of crimes which are punishable while driving, the law also provides for the following crimes which can be violated while driving – DWI (Driving While Intoxicated), DWAI (Driving While Ability Impaired) and DUI (Driving Under the Influence) – but regardless of the particular offense in New York (both NYC and Westchester), prosecutors and judges take these charges very seriously.

A New York DWI Lawyer said that we have handled numerous DWIs, DWAIs and DUIs here in our firm, whether they are charged as VTL 1192.1, VTL 1192.2, VTL 1192.2-a or VTL 1192.3. A particular question which a layman frequently asked us is “how can I be charged with DWI if there is no breathalyzer or intoxilizer that indicates how much alcohol I had in my system?” In answering their question, we first ask for the circumstances surrounding their problem. Once we already determined the main problem, we give them an advice which will benefit them. In the question stated above, the answer is quite simple. As we call it in the criminal law field, a person can be held liable for DWI even without a chemical test. This can be done by using the observation of the arresting officer based on the appearance of the driver and if indeed the latter was intoxicated. This is also known as the “Common Law” DWI.

With the use of the personal observation of the arresting officer, it is different from the forms of DWI using a chemical test. In VTL 1192.2 which requires a reading of alcohol in a person’s blood to be .08 of one per centum or more, a person is guilty of Driving While Intoxicated pursuant to “Common Law” VTL 1192.3 if they operate a motor vehicle while in an intoxicated condition.

A New York City Criminal Lawyer said that one common question as to the manner of determination of the violation of the crime was frequently asked that, if there is no reading or analysis, what does law enforcement hang it’s hat on to establish this crime? In answering this question, the police officers cite certain characteristics of the accused across the board. These characteristics are simple observations which will definitely show that the offender is liable sans chemical test. The officers claim that that the accused had “watery bloodshot eyes,” “slurred speech,” “the smell of alcohol on their breath,” and they were “unsteady.” Maybe the police allege that a person was asleep at the wheel, was driving erratically, or even threw up on themselves.

Also, a Manhattan Criminal Lawyer said that one of the easiest ways that the police officers establish is the driver’s lack of sobriety is based on the boneheaded mistake that people of all walks of life make when confronted by the police regardless of the accusation. In this regard, the offender had nothing to say but to admit that indeed they are intoxicated. Something as simple as “I only had a few (or couple) of beers.” Well, if you didn’t present any of the characteristics mentioned above, but you stated you had a couple of beers, you probably just bought yourself a trip to the precinct and ultimately before a judge.

It has been a fact that DWI is a serious and terrible offense. The lives of many innocent people are put in harm’s way if one gets behind the wheel intoxicated. On that note, an accusation or an arrest is not evidence of guilt. It is submitted that intoxication depends on the tolerance of a person who drinks liquor. It could be that you did have two beers, but you are 6’4 230 pounds. There are also other factors which must be considered when looking into the eyes of a driver. Maybe you did have bloodshot eyes because you had not changed your contact lenses for a day or you were in a room full of cigarette smokers. These are not excuses, and in fact may be legitimate reasons why a wrongful conclusion was made that you were driving drunk.

In any case, prosecution and defense of a DWI with counsel that is not experienced in criminal law and DWIs in particular can and often does compound a bad situation. Instead of being acquitted of the crime by using defenses allowed by law, the lack of skill and knowledge of the handling lawyer may lead to a conviction.

If you are accused of the crime of DWI or any other crimes, don’t take chances, contact immediately the criminal defense attorneys and former Manhattan prosecutors at Stephen Bilkis and Associates.

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