NY Vehicle and Traffic Law 1192.3 – New York Refusal DWI
Although Vehicle and Traffic Law 1192.2 in New York states a blood alcohol content (BAC) reading of at least 0.08% is per se proof of intoxication, VTL 1192.3 doesn’t have the same standard. In most cases, an individual will be charged under a VTL 1192.2 and a VTL 1192.3 at the same time, but an individual may only be charged with a VTL 1192.3 misdemeanor for refusal to take a DWI test.
When an individual is taken to a law enforcement agency after a suspected DWI, he or she may be asked to submit a breath test with an intoxilyzer. However, an individual has the right at any time to ask a law enforcement officer to contact his or her attorney. If an individual refuses to submit this test, it will result in the automatic revocation of his or her driver’s license. It is important to note that a police officer must properly inform an individual of his or her rights and instructions before taking the test. When an individual fails to submit a breath test, his or her license will be suspended pending a refusal hearing at the Department of Motor Vehicles (DMV).
The basis of this offense is the observation of the police official and legal presumptions. Police officers will usually indicate an individual wasn’t steady on his or her feet, had blood shot eyes, and showed other characteristics to being intoxicated. Furthermore, the officer must prove an individual was operating a motor vehicle.
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(212) 300-5196Many times, refusal to submit a breath test charges will rely on police video and documentation from the officer. When there is inconsistency in the paperwork or video, which may show an individual was speaking clearly and standing upright, there is a chance the accused can beat the case. Although each case is different, the documentation and video are critical pieces of evidence.
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You were pulled over at a DWI checkpoint in Manhattan and refused to take the breathalyzer test, believing it would help your case. Now you've been charged under VTL 1192.3 and received a notice that your license will be revoked for refusing the chemical test.
Can they still convict me of DWI under VTL 1192.3 even though I refused the breathalyzer and they have no BAC reading?
Yes, unlike VTL 1192.2 which requires proof of a BAC at or above 0.08%, a charge under VTL 1192.3 is a common law DWI offense where the prosecution can prove intoxication through other evidence such as officer observations, field sobriety test results, slurred speech, and erratic driving. Your refusal to submit to the chemical test also triggers an automatic license revocation of at least one year under VTL 1194, which is a separate administrative penalty on top of any criminal consequences. Additionally, the prosecution can introduce your refusal as evidence at trial, and jurors often view a refusal as consciousness of guilt. An experienced DWI defense attorney can challenge the legality of the traffic stop, the officer's observations, and whether you were properly advised of the consequences of refusal under New York's implied consent law.
This is general information only. Contact us for advice specific to your situation.
Penalties for VTL 1192.3
Those convicted of VTL 1192.3 could face the following penalties:
- Community service
- A fine between $500 to $1,000
- Up to one year in jail
- License suspension for six months (Common Law)
- One year revocation (Refusal)
- Impaired Driver Program (IDP)
- Vehicle interlock device
