Statutory DWI and Common Law DWI in New York State

In New York State a driver who is charged with DWI and submits to a chemical breath test will be issued two tickets. One ticket for violating law section 1192.3 and one ticket for violating section 1192.2. Both statutes make it illegal to operate a vehicle while intoxicated but each law required different proof.

In both common law DWI or statutory DWI, an officer is required to have probable cause to believe that the driver is intoxicated prior to making an arrest. This means that in both cases an officer will rely on his/her observations of the driver and the operation of the vehicle as well as the standard field sobriety tests to come to a regarding intoxication. Once the officer believe that probable cause exists an arrest will be made. The next step in proving the charges and that is where the difference is between statutory DWI and common law DWI in New York State.

With statutory DWI the chemical test result is conclusive. That is to say, if the chemical breath test was administered properly and accepted into evidence by the Court, then the result speaks for itself and if the result is .08 or greater the driver is per se intoxicated. On the other hand, with common law DWI, the prosecutor may rely solely on the officer’s observations and his/her opinion regarding intoxication. To state it simply, statutory DWI relies on the conclusive nature of the chemical breath test and it’s accepted scientific reliability where common law DWI relies on the investigating officer rather than a machine.

Each type of ticket creates specific legal issues and possible defense. If you’re facing a DWI it is important to hire an experienced DWI lawyer to help you navigate the charges and explore your options. An experienced DWI lawyer knows that there is sometimes variability in how field sobriety tests are administered and how the results are interpreted and that the timing of a chemical test can be important in creating a DWI defense. Cambareri & Brenneck has years of experience with DWI defense and can help you to reach the best possible resolution for your case. Cambareri & Brenneck is committed to providing a defense team that will work to defend you and protect your future.