VTL 1192(2): Per Se DWI in New York

VTL 1192(2) is the DWI charge built entirely on a number: driving with a blood alcohol concentration of .08 or higher, as shown by chemical analysis. The People do not have to prove you looked or acted drunk. They have to prove the machine was right. If you have been arrested, call Hochhauser Criminal & DWI Defense at 516-939-1529.

VTL 1192(2) penalties

Every conviction under VTL 1192(2) also carries a mandatory ignition interlock device for at least twelve months as a condition of probation or conditional discharge, plus an alcohol and substance abuse screening. On top of the fine come a $400 mandatory surcharge, a $25 crime victim assistance fee, and a Driver Responsibility Assessment of $250 a year for three years.

What per se DWI actually requires

The charge has only two elements: that you operated a motor vehicle, and that you did so with a BAC of .08 or more as shown by chemical analysis. That is a narrower case than common law DWI under VTL 1192(3), which rests on observation and requires no test at all. The two are almost always charged together off one arrest, and they carry identical penalties — so the fight is over which one the People can actually prove.

Narrower is not the same as easier. Because the number is the case, everything that produced the number is fair game.

Attacking the breath test

New York’s pattern jury instruction effectively hands the defense a checklist. In weighing a chemical test result, jurors are told to consider the qualifications and reliability of the person who administered it, the time that elapsed between operation and testing, whether the machine was in proper working order at the time, and whether the test was properly conducted.

Each of those is a discovery demand:

• Calibration and maintenance records. Analysis by a permit holder is presumptive evidence that the test was properly given — and presumptive means rebuttable. Simulator solution certifications, records of analysis, field inspection reports and the instrument’s repair history are where that presumption gets tested.
• The operator’s permit. Current, and for that device.
• The twenty-minute observation period and mouth alcohol — belching, reflux, dental work and recent drinking all corrupt a breath sample.
• The two-hour rule. Chemical testing is authorized within two hours of arrest. A test outside that window, without valid consent, is vulnerable.
• Rising BAC. The jury may infer that a later reading reflects your BAC while driving — but that inference is permissive, not required. If your last drink was shortly before you drove, your BAC was still climbing, and the reading at the station may be higher than it was behind the wheel.

Operation, and the stop

Before any of that matters, the People must prove you operated the vehicle. Accident cases, parked cars with the engine running, and cases where no officer saw you drive all put that element in play — and it is fully contestable regardless of what the machine said.

Upstream of everything is the stop itself. If there was no lawful basis to pull you over, the test result and everything else that followed is subject to suppression. That motion comes before any argument about calibration.

Two proceedings, not one

A DWI arrest starts a criminal case and, if you refused the breath test, a separate DMV proceeding. Your license is typically suspended at arraignment, and many first offenders qualify for a hardship privilege and later a conditional license. See DWI license suspension and chemical test refusal.

Where DWI cases are heard on Long Island

We defend impaired driving cases across Nassau County and Suffolk County, including every village and justice court. See our full DWI defense practice.

VTL 1192(2) frequently asked questions

I blew over .08. Is the case over?

No. The reading is evidence, not a verdict. It depends on a machine that has to be maintained and calibrated, an operator who has to be certified, and a procedure that has to be followed. Any of those can fail.

What is the difference between 1192(2) and 1192(3)?

VTL 1192(2) requires the .08 reading. VTL 1192(3) requires proof of intoxication by observation and needs no test. The penalties are identical.

Can a first DWI be reduced?

Often, to DWAI — a traffic infraction rather than a crime — in a first-offense case with no accident, no injury, and a defensible file. See DWI first offense.

What is aggravated DWI?

A BAC of .18 or higher is charged under VTL 1192(2-a) and carries a higher fine and a one-year revocation. See aggravated DWI.

Speak with a Long Island DWI lawyer

Richard Hochhauser has spent his career on impaired driving cases in Nassau and Suffolk County. A per se DWI looks unwinnable to most people because of the number on the printout — which is exactly why the records behind that number are worth demanding.

This page provides general information about VTL 1192(2) in New York and is not legal advice. Every case turns on its own facts. Contacting our firm does not create an attorney-client relationship.