Driving While Intoxicated (DWI) in violation of NYS VTL Sec. 1192.2

Driving while intoxicated; per se.             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, made pursuant to the provisions of section eleven hundred ninety-four of this article.

NY VTL 1192.2.

This is the DWI offense charged when you provide a sample of your blood, breath, urine or saliva for a chemical test, typically at the police station (not as a result of blowing into the little box on the side of the road) and the result is a .08 BA or higher.  So, if you don’t provide that sample for the chemical test, you cannot be charged with a violation of 1192.2.  Be advised, however, there are alternative consequences to not providing a sample, i.e., refusal hearings and revocations, and in some instances the court can order a compulsory blood draw for chemical test purposes.  Alternatively, if you do provide a sample and the BAC is .18 or higher, you will be charged with a violation of 1192.2-a(a), Aggravated DWI, instead of 1192.2.

An 1192.2 charge will also almost certainly guarantee that your license or NYS driving privileges will be suspended pending prosecution at your arraignment.  The court may grant you a hardship privilege at that time, and if you’re eligible, you may apply for a conditional license after 30 days.

A “first offense” conviction of 1192.2 is a misdemeanor, a criminal conviction, and will result in a criminal record.

Penalties

As long as the instant offense is not a second (or more) DWI (either an 1192.2, 1192.2-a, 1192.3,1192.4 or 1192.4-a) within 10 years, it will be a “first offense” DWI, a misdemeanor, subject to the following penalties:

First offense

• Misdemeanor;
• Punishable by a fine of between $500 and $1,000, up to one (1) year in jail, or both fine and jail;
• Possible probation;
• Surcharge of $400;
• DMV driver responsibility assessment of $750;
• Installation of the Ignition Interlock Device (IID) for at least 6 months; and
• License or NYS driving privilege revocation for at least 6 months.

You will most likely be required to attend and complete various programs and classes (DDP and/or VIP), as well as alcohol or substance abuse screening, all at your expense.

Second offense

• Misdemeanor;
• Punishable by a fine of between $500 and $1,000, up to one (1) year in jail, or both fine and jail;
• Possible probation;
• Surcharge of $400;
• DMV driver responsibility assessment of $750;
• Installation of the Ignition Interlock Device (IID) for at least 6 months; and
• License or NYS driving privilege revocation for at least 1 year (or 18 months where prior conviction was for 1192.2-a).

You will most likely be required to attend and complete various programs and classes (DDP and/or VIP), as well as alcohol or substance abuse screening, all at your expense.

Second offense within 5 years

A second offense within 10 years of a previous DWI conviction for either 1192.2, 1192.2-a, 1192.3,1192.4 or 1192.4-a may be charged as a felony DWI, in this case, E Felony DWI, subject to much more substantial penalties than a misdemeanor.  The possibility exists, however, that even a felony DWI charge may be reduced to a misdemeanor.  In that case, the penalties for this second offense will typically be the same as a first offense, with the addition of:

• Either 5 days in jail or, alternatively, 30 days of community service.

Third or subsequent offense within 5 years

Again, a serious possibility for a felony charge exists under these circumstances, in this case, D Felony DWI.  However, in the event the matter ends up being resolved with yet another misdemeanor DWI, the same penalties as a first offense would apply, with the addition of:

• Either 10 days in jail or, alternatively, 60 days of community service.

There are many important things to look for with regard to an arrest for 1192.2, beginning with the initial consultation.  An experienced DWI attorney will know what those things are and how to use them to your advantage.

And although a regularly calibrated and well-maintained machine produced a reading of .08 or more, there may still be ways to call into question the operability of the machine or even the qualifications (or lack thereof) of the breath test machine operator.  This all goes to the creation of reasonable doubt.  Machines are good, but not infallible.  

As with all alcohol related driving offenses, the consequences of not just a conviction but the arrest itself can be devastating.  It is therefore critical that anyone arrested for and charged with any violation of VTL 1192 contact a knowledgeable and experienced DWI attorney immediately.

The attorneys at Catalano & Carpenter LLP have established a reputation for aggressively and successfully defending and protecting the rights of individuals throughout the Hudson Valley charged with alcohol related driving offenses.  If you or someone close to you has been charged with any alcohol related driving offense, call Catalano & Carpenter LLP today at (845) 454-1919 for a free consultation, or visit us online at www.CatalanoCarpenter.com.