New York DWI–Common Law And “Per Se” DWI

Frequently, when our clients are arrested for DWI, they will receive multiple tickets from the arresting officer, and there will be more than one DWI charge. One question the client has is: Why was I charged with multiple counts of DWI? This article will address that question.

Under Section 1192 (2) of the New York State Vehicle & Traffic Law, also known as the per se statute, a motorist can be found guilty of DWI “per se” as follows:
No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva…”

Therefore, in order to be able to prove that a motorist is intoxicated under the per se DWI statute of 1192 (2), the prosecution must have either a blood test, breathalyzer or urine sample which establishes that the person had at least 0.8% of alcohol in their system simultaneously with their operation of a motor vehicle. Realistically, although the statute also provides for proof of intoxication through a saliva sample, this is very infrequent, and in this writer’s experience, has never been the basis for a DWI charge under V & T 1192 (2).

The New York State Legislature provided for situations in which there is no laboratory proof of driving while intoxicated, such as cases in which the driver refuses to take a chemical test, or for some other reason a test is not performed, or is not admissible in Court. This alternative DWI charge is known as “Common Law DWI”, and is found under Section 1192 (3) of the Vehicle & Traffic Law.

1192 (3) states: “No person shall operate a motor vehicle while in an intoxicated condition.”

The reason investigating officers will issue tickets for both per se DWI under 1192 (2) and common law DWI pursuant to 1192 (3) is to account for the possibility that the per se DWI charge will not be substantiated, due to some evidentiary issue with the blood, breath or urine sample. Further, in cases of a refusal, there is no legal basis to charge the driver with 1192 (2) since no breath, blood or urine is available for testing.

Common law DWI can be established by the investigating officer’s observations of the driver performing Field Sobriety Tests, including the walk and turn or one leg stand. Additionally, the officer can testify to his or her observations of the motorist’s operation of their motor vehicle, impaired motor coordination, slurred speech, disheveled appearance, demeanor, or odor of alcohol on their breath or body, among other factors.


If you or a loved one are arrested for DWI, Aggravated DWI, DWAI, another crime or traffic infraction, contact the Westchester County Drunk Driving Lawyers online or toll free at 888-761-7633 for a free initial consultation with an experienced defense attorney to discuss the case against you, and your legal rights and options.

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