Refuse Breathalyzer New York

If you refused a breathalyzer in New York, you can still be charged with Driving While Intoxicated under VTL § 1192.3. Police can charge you based on observations alone, including bloodshot eyes, slurred speech, and the odor of alcohol on your breath.

Being charged with Common Law DWI under New York Vehicle & Traffic Law § 1192.3 can be intimidating and confusing. Unlike a "per se" DWI based on a specific blood alcohol concentration, a Common Law DWI is based on officer observations and behavior, not chemical test results.

At the Law Offices of Matthew Cohan, we have extensive experience defending clients against all types of DWI charges in New York, including Common Law DWI under VTL § 1192.3. As a former prosecutor, I understand how these cases are built and how to challenge the subjective evidence that forms the foundation of the prosecution's case.

What Is Common Law DWI Under VTL § 1192.3?

Under VTL § 1192.3, it is unlawful to operate a motor vehicle while in an intoxicated condition due to the consumption of alcohol.

Unlike other DWI statutes (such as VTL § 1192.2 or § 1192.2-a), this charge does not rely on a specific BAC level. Instead, prosecutors must prove that your physical and mental abilities were substantially impaired by alcohol at the time you were driving, making you incapable of operating a vehicle as a reasonable and prudent driver would.

When Is Common Law DWI Charged?

VTL § 1192.3 is most commonly charged in two situations:

Refusal Cases: When a driver refuses to submit to a chemical breath or blood test at the police station. Without BAC evidence, prosecutors rely entirely on officer observations.

Unreliable Test Results: When chemical test results are unavailable, suppressed due to procedural violations, or otherwise inadmissible in court.

In many cases, prosecutors charge both VTL § 1192.3 (Common Law DWI) and VTL § 1192.2 (per se DWI) together. If chemical evidence is later excluded or proves unreliable, they can still pursue the Common Law charge.

How Police Determine "Intoxicated Condition"

Because there's no BAC number to rely on, law enforcement uses subjective observations to support a § 1192.3 charge. Common observations cited by police include:

• Slurred speech
• Bloodshot, watery, or glassy eyes
• Unsteady balance or poor coordination
• Strong odor of alcohol on breath
• Difficulty following directions
• Poor performance on field sobriety tests
• Erratic or unsafe driving behavior
• Incriminating statements such as "I had a few drinks"

Police officers typically document these observations in arrest reports and may use body camera or dashcam footage to support their testimony in court.

Elements the Prosecution Must Prove

To convict you under VTL § 1192.3, the district attorney must prove beyond a reasonable doubt that:

1. You operated a motor vehicle in New York State, and
2. You were in an intoxicated condition at the time of operation, meaning your ability to operate the vehicle as a reasonable and prudent driver was substantially impaired by alcohol

Importantly, no breath or blood test is required to bring this charge. The entire case can rest on the arresting officer's testimony about what they observed.

Penalties for Common Law DWI Under VTL § 1192.3

Although a Common Law DWI does not require proof of a specific BAC, the penalties are the same as those for a per se DWI under § 1192.2.

First Offense

Misdemeanor

• Criminal fines: $500 to $1,000
• Possible jail time: Up to 1 year
• License revocation: Minimum 6 months
• Ignition interlock device (IID) required for at least 12 months
• Participation in the Impaired Driver Program (IDP)
• $395 surcharge
• Probation for up to 3 years

Second Offense Within 10 Years

Class E Felony

• Criminal fines: $1,000 to $5,000
• Possible prison sentence: Up to 4 years
• License revocation: At least 1 year
• Mandatory ignition interlock device for at least 5 years
• Felony criminal record

Third or Subsequent Offense Within 10 Years

Class D Felony

• Criminal fines: $2,000 to $10,000
• Possible prison sentence: Up to 7 years
• License revocation: Minimum 1 year or longer
• Long-term ignition interlock requirement
• Felony criminal record with severe collateral consequences

Additional Consequences

A DWI conviction under § 1192.3 also results in:

• Permanent criminal record appearing on all background checks
• Dramatically increased auto insurance rates (often tripling or more)
• Employment difficulties, particularly for jobs requiring driving or positions of trust
• Professional license suspensions or revocations for nurses, teachers, lawyers, and others
• Immigration consequences for non-U.S. citizens, including potential deportation

The Challenge of Refusing a Chemical Test

If you refused a chemical test, you face additional consequences beyond the criminal charges:

DMV Refusal Hearing

Separate from your criminal case, the New York DMV will conduct a civil "refusal hearing" to determine whether your license should be revoked for refusing the test. This hearing occurs at the DMV, not in criminal court, and is presided over by a Judicial Hearing Officer.

Penalties for Chemical Test Refusal:

• First refusal: Minimum 1-year license revocation
• Second refusal within 5 years: Minimum 18-month license revocation (permanent for CDL holders)
• $500 civil penalty
• Driver responsibility assessment of $250 per year for three years

Consequences in Criminal Court

While refusing a chemical test means prosecutors cannot use BAC evidence against you, juries are allowed to draw negative inferences from your refusal. The prosecution can argue that you refused because you knew you were intoxicated and feared the test would prove it.

However, this cuts both ways. Without chemical evidence, the prosecution's case relies entirely on subjective observations that an experienced attorney can effectively challenge.

Strong Defenses to Common Law DWI Charges

Because a Common Law DWI relies on officer observations rather than objective chemical evidence, credibility and procedure become critical. An experienced defense attorney can challenge the prosecution's case through several strategies:

Challenging Officer Observations: Many factors other than intoxication can explain the behaviors police cite as evidence. Fatigue, stress, medical conditions, nervousness, poor lighting, uneven road surfaces, and weather conditions can all affect balance, speech, and coordination. We highlight these alternative explanations to create reasonable doubt.

Attacking Field Sobriety Tests: Field sobriety tests are notoriously unreliable and subject to officer interpretation. We challenge how tests were administered, whether instructions were clear, and whether physical limitations or medical conditions affected performance.

Questioning the Traffic Stop: The Fourth Amendment protects you from unlawful searches and seizures. If the officer lacked reasonable suspicion to pull you over or probable cause to arrest you, any evidence obtained may be suppressed, potentially leading to dismissal.

Highlighting Inconsistencies: We carefully review police reports, body camera footage, and dashcam video to identify contradictions between the officer's testimony and the actual evidence. Inconsistencies undermine the prosecution's case and create reasonable doubt.

In many cases, we can negotiate a reduction to DWAI (VTL § 1192.1), a non-criminal traffic infraction that avoids jail time and a permanent criminal record.

Why Common Law DWI Cases Are Defensible

Common Law DWI charges often come down to one officer's subjective interpretation of what they observed. Without the concrete evidence of a BAC test, prosecutors must rely entirely on testimony that can be effectively challenged through cross-examination.

This creates opportunities for defense that don't exist in per se DWI cases where chemical evidence is strong. An experienced DWI attorney who understands how to cross-examine police officers and expose weaknesses in their observations can often achieve favorable outcomes.

Why Choose the Law Offices of Matthew Cohan

Common Law DWI defense requires specific expertise in challenging subjective evidence and officer credibility. When you hire our firm, you get:

Former Prosecutor Experience: As a former prosecutor, Attorney Matthew Cohan has handled DWI cases from both sides. I know how prosecutors build these cases and, more importantly, how to dismantle them.

Proven Track Record: We have successfully defended hundreds of DWI cases, including numerous Common Law DWI charges, securing dismissals, reductions, and acquittals for our clients.

Technical Knowledge: We understand field sobriety testing procedures, officer training requirements, and the scientific limitations of observation-based evidence.

Aggressive Cross-Examination: We know how to cross-examine police officers effectively, exposing inconsistencies and creating reasonable doubt about their subjective conclusions.

Personalized Attention: You'll work directly with an experienced attorney who knows your case inside and out, not a junior associate.

The Importance of Acting Quickly

If you've been charged with Common Law DWI or refused a chemical test, time is critical. Early intervention by an experienced attorney can:

• Preserve video evidence before it's destroyed
• Prepare for your DMV refusal hearing to protect your driving privileges
• Interview witnesses while memories are fresh
• Identify procedural violations and constitutional issues
• Position your case more favorably for negotiation

Many people wait too long to hire an attorney, hoping the situation will resolve itself. By the time they seek legal help, critical opportunities have been lost.

Contact the Law Offices of Matthew Cohan

If you've been charged with Common Law DWI under VTL § 1192.3 or refused a chemical test anywhere in New York, you need an attorney who knows how to fight these cases.

Call (516) 375-1107 now or complete our contact form below for a free, confidential consultation.

We represent clients throughout New York City, Long Island, Nassau County, Suffolk County, Westchester, and surrounding counties. Don't let a DWI charge destroy your life. Let us fight for you.