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Asked in Buffalo, NY Sep. 19, 2014 ,  11 answers Visitors: 139
Dwi charge without breath test?
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11 Answers


Posted on / Sep. 26, 2014 02:45:47

Driving While Intoxicated can be proven under two separate theories. First, there is Vehicle and Traffic Law ("VTL") section 1192(2), Driving While Intoxicated Per Se, which makes it a crime to operate a motor vehicle on a public roadway while a person has .08% or more blood alcohol concentration. Under this theory, it doesn't matter if a person's ability to drive is affected by alcohol. The crime is committed by virtue of the fact that the motorist has that much alcohol in his/her blood. Second, there is VTL section 1192(3), Common Law DWI. This section is typically charged in conjunction with 1192(2), except where there has been a chemical test refusal. Under this section, the theory of intoxication is not that one possessed an illegal amount of alcohol in their blood but rather that their ability to drive had been affected by the alcohol. Using the statutory language of this section, "A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver." What this means is that regardless of how much or how little alcohol you have in your blood at the time of operation, if your ability to drive was affected consistent with the statutory language above, you will be charged with common law DWI. To give a simple example. Suppose you are a rare person who gets inebriated by even a sip of alcohol. Presumably, you wouldn't have a blood alcohol reading of .08% or greater. But since even a little alcohol gets you smashed, getting behind the wheel now becomes a crime. The DA will seek to prove intoxication, under the common law theory, not by a chemical reading but instead by the police officer's observations of your friend, i.e., breath, speech, eyes, balance, manual dexterity, performance on standardized field sobriety tests, inculpatory statements, etc... I hope this answer helps and good luck to your friend.


Posted on / Sep. 23, 2014 23:51:03

Yes, your friend can be charged with DWI without a Breath Test, Blood Alcohol Test in New York. In New York this is often referred to as common law DWI. The prosecution will offer evidence based on the arresting officer's observations of your friend. Some of those observations may include defendant,s driving, manner of speech, appearance , ie; blood shot eyes and performance on field tests. A good DWI attorney can often challenge the officers observations and field tests. Please consult an experienced New York DWI attorney.


Posted on / Sep. 19, 2014 19:53:13

The simple answer is Yes, you can be charged (and convicted) of D.W.I. in New York State without a breath test. There are two separate D.W.I. charges, Vehicle & Traffic Law section 1192(2) and section 1192(3). Section 1192(2) is based on a breath test of 0.08 of one percent or higher. Section 1192(3) is based only on the officer's observations and his/her opinion that the driver operated a vehicle while intoxicated. For example, the officer will note in the paperwork (and later testify at trial) about glassy eyes, odor of an alcoholic beverage, slurred speech, and impaired motor coordination (i.e., failing the field sobriety tests). Under the law in New York, the officer's testimony regarding his or her observations is enough, even without a breath test, to convict for D.W.I.


Posted on / Sep. 19, 2014 16:56:57

Your friend can not be charged with driving while intoxicated per se but can be charged with driving ]while intoxicated. [See: VTL 1192] The evidence will be any observed erratic driving, smell of alcohol, glassy eyes , impaired speech, field sobriety test results, admissions, etc. He or she may also be facing some additional consequences if he or she refused to take the breath test. The person should exercise their right to an attorney and their right to remain silent.


Posted on / Sep. 19, 2014 16:01:34

Your friend has more than likely been charged under VTL 1192.3 which is known as “Common Law DWI”. The officer is going to testify about any admissions your friend made about consuming alcohol, her physical condition and appearance, balance and coordination, and manner of speech, the presence or absence of an odor of alcohol, and the manner in which she operated the motor vehicle. The officer can also give opinion testimony regarding her sobriety. If there was an accident this can be used against her as well to prove the charge. Lastly, if she refused to give a sample of her blood, breath, urine, or saliva then a jury can infer that she refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of the law.


Posted on / Sep. 19, 2014 15:28:10

It is not only legal, but routine. Further, in most places, the refusal to take a test can be used as evidence that your friend knew she was drunk. She needs a dui defense lawyer, now.

Often people think that because it isn’t a murder case, a drunk driving case is simple. Nothing could be further from the truth. These cases can be among the most complex a criminal defense lawyer handles. The government is willing to spend an incredible amount of money to convict you though. They will have expert witnesses available for consultation and trial.

That you have been charged or that some contraption says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you can be proven guilty using competent, valid evidence.

Field sobriety “tests” are designed to give police a reason to arrest. You cannot “pass” them. The police will admit that almost a third of healthy young adults who take these tests without any alcohol will be judged to be “under the influence” – and that assumes they are properly administered!

After even a first drunk driving conviction, you may face employment discrimination. You will certainly be charged higher for insurance. Having such a conviction will also make you a target for drunk driving arrest in future interactions with police. You will automatically become a suspect.

You will want a lawyer who is familiar with field sobriety “tests,” perhaps one who is certified to administer these tests. You will want a lawyer familiar with the weaknesses of the contraptions that are used to report alcohol or drug levels. You want an experienced trial lawyer, used to cross-examining police officers. Police officers are practiced, experienced witnesses.

That is, you want an experienced drunk driving defense lawyer, whether you call the offense DUI, OWI, DWI, OUI, or drugged driving.

If any answer on AVVO helps you, mine or someone else’s, please mark it as "helpful" or "best answer" to help AVVO know which answers to show others.
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--- Experienced DUI/DWI/OWI/Drunk Driving Lawyer in Madison, Wisconsin

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Posted on / Sep. 19, 2014 15:18:13

Think about what you just wrote for a moment...if refusing to blow would prevent any motorist from being charged with DWI...there would be no such thing as DWI.

Everyone would refuse to blow and everyone would get rip-roaring drunk, drive home, kill whomever got in their way, and then refuse to blow and all would be ok.

Yes - that is pretty dramatic, but the premise is the same. The law was enacted to prevent this very thing from happening. They can prove intoxication in a number of different ways, with or without, a chemical test

Your friend needs a good DWI defense lawyer to help her. Good luck.


Posted on / Sep. 19, 2014 14:35:28

You can be charged with and convicted of DWI charges even without a breath test. The case will be much more difficult without such evidence for the prosecutor, but it is done. I have defended many case where they have no breath test. It does happen. But, they are defensible. The case will be based upon the testimony of the officer and his observations at the location. Also, the suspect may have taken a roadside sobriety test. If he/she did poorly on those tests, they will also be used at trial. For more information, call an experience DWI lawyer today for help. Good luck.


Posted on / Sep. 19, 2014 14:21:50

Yes. There are two separate charges associated with a typical drunk driving allegation. The first charge addresses whether a person's blood alcohol level is above the legal limit which .08. See VTL 1192.2. This is where the breath test comes into play. So if you blow above a .08, you can be charged with this count irrespective of whether you appear or even are intoxicated. However, the second charges addresses whether the person was operating a motor vehicle while "intoxicated." By law, a person drives in an intoxicated condition when " he has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver" See VTL 1192.3. Even if a person refuses to take a breath test, the police can still charge someone with this if they believe the person appears intoxicated as the term is defined above. This is true even if a person blows below the .08 for whatever reason. In theory, if a person is a real lightweight and only had one beer but it made them intoxicated, they can be charged with this. The way the police prove whether someone is intoxicated as it is defined is by giving coordination tests among other reasons. Both 1192.2 and 1192.3 carry the same penalties.


Posted on / Sep. 19, 2014 14:03:54

First, it is important to distinguish between the two “breath tests” an individual may perform when stopped for driving while intoxicated. Oftentimes, when an individual is stopped on suspicion of driving while intoxicated, he or she will be asked to submit to a road side breath test, called an alcosensor. This test is not incredibly accurate and the results it produces are not admissible in a court of law. If an individual refuses to submit to this roadside test, he or she can be charged with a traffic violation.

Thereafter, the individual is usually taken back to the police station and asked to submit to a chemical test. In most cases, this test is also a breath test, but an officer can request that you submit to a blood, urine, or saliva test. The second test is the ‘official’ chemical test which is more accurate and the results are admissible in court. The second test is what a court considers at trial, and if refused, can warrant the revocation of an individual’s New York State driving privileges for one year.
It is a misconception that an individual has to submit to a chemical test in order to be charged with driving while intoxicated in New York State. Under New York Law, an individual may be charged with driving while intoxicated even if he or she refused to submit to a chemical test

Specifically, section 1192-3 of New York’s Vehicle and Traffic Law states: “No person shall operate a motor vehicle while in an intoxicated condition.” This section of the law is often referred to as “common law DWI.” This section of law is based on an officer’s observations about your driving and demeanor, including whether you had impaired motor coordination, slurred speech, glassy eyes, and the smell of an alcoholic beverage on your breath etc. Under this section of law, a chemical test is not required—the arresting officer’s observations about your driving, behavior, and demeanor are the basis for the charge.

Other sections of the law require proof that an individual’s blood alcohol content reaches certain levels. For example, under section 1192-2 of the Vehicle and Traffic law, it must be proven that the defendant’s blood alcohol content was .08% or more. In order to prove a case of aggravated DWI under section 1192-2a of the Vehicle and Traffic law, it must be proven that the defendant’s blood alcohol content was .18% or more.

Therefore, in answering your question—not only is it possible for an individual to be charged and convicted of DWI without having submitted to a chemical test, it is common practice here in New York State.

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