What Is “Common Law DWI” in New York?

VTL § 1192(3) is commonly referred to as “common law DWI.” In essence, it means to drive drunk. No proof of your blood alcohol content, or BAC, is required to sustain a charge of common law DWI in New York.

If you refuse to submit to a chemical test or breath test in Nassau County, New York, then you will almost certainly be charged with common law DWI. Especially in Nassau County, it is nearly impossible for a defendant who refuses to submit to a chemical or breath test to only be charged with DWAI, which is the violation.

Common law DWI is based upon whether your driving, appearance, demeanor, manner of speech, motor coordination, performance on field sobriety tests, etc. establish that you were intoxicated. Not all of the symptoms of intoxication must be present; nor is erratic driving a requirement. Rather, New York law explains the totality of the circumstances must lead to the conclusion that the defendant “voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.”

Therefore, to sustain a charge of common law DWI, you must actually appear intoxicated. Thus, if you have a higher tolerance for alcohol than the average person, then this is an argument that can be used in your defense to a common law DWI charge.

If you’ve been charged with common law DWI in Nassau County, call DWI Lawyer Richard Hochhauser for your free consultation.