In New York, “Common law DWI” is charged in almost every single DWI case. It will be charged by itself (for a refusal case) or with other charges against a driver, like DWI over .08, VTL 1192.2 (if you gave a sample of your breath or blood). This particular charge is the de facto DWI allegation because it is based solely on the facts and circumstances surrounding the DWI arrest. In other words, this DWI charge can be proven by the government WITHOUT a sample of the driver’s breath or blood.

In our experience, this charge is typically based upon the observations and opinions of the arresting police officer.  The government will use every piece of evidence against you to prove that you were legally intoxicated.  According to New York law, 

“A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.”


How does the government prove this charge?

They will probably have the officer testify that you were, in fact, intoxicated.  They will likely have the arresting officer describe your failure to complete field sobriety tests, say they smelled the odor of alcohol, say your speech was slurred, and say your eyes were red, watery, or glassy.  They may testify that you fumbled producing your driver’s license and registration.  They may testify that your driving was bad (i.e. weaving, crossing the fog line, driving on the curb, speeding, driving too slowly) or that you failed to appropriately stop your car for the police officer.  They may also testify that you were unsteady on your feet or required help walking from one place to another.  

Finally, they will use anything you SAID TO POLICE (“admissions”) to prove that you were intoxicated.  If you told the officer, “I just had two beers,” and then later said, “well, actually it was 3 beers and a wine,” then the prosecutor will use that to their advantage to prove that you did, in fact, consume some alcohol, and that you lied to the police. 

What are the penalties of “Common law DWI,” VTL 1192.3?

  1. Up to 1 year in county jail
  2. Up to 3 years of probation (closely-monitored community supervision)
  3. Mandatory Ignition Interlock Device for 1 year 
  4. $500-$1000 fine
  5. $395 or $400 court surcharge (depends on if City or Town/Village court)
  6. Participation in Drunk Driver Program (DDP) class [7 week class]
  7. Revocation of license for 6 months [1 year if under age 21]
  8. Mandatory attendance to Victim Impact Panel
  9. DMV fines of $750 over 3 years (Driver Responsibility Assessment)
  10. Fees for DMV relicensure
  11. Community Service Hours
  12. Permanent Criminal Record (there is no expungement in New York)


The most defensible part of a “Common Law DWI” charge is that we do not have to worry about a breath or blood test (assuming you are not also charged with “DWI over .08, VTL 1192.2).  While there are methods we use to defend breath and blood cases, it is always better for you as a Defendant if the government has LESS EVIDENCE to prove that you were legally intoxicated.  

Ultimately, we cross-examine the police officer(s) involved.  We highlight the best facts that are in the evidence against you.  If we can: 

-We point out any good driving and that you stopped for the officer appropriately.
-We illustrate that you were COHERENT enough to listen to the police officer’s questions and appropriately respond.  

-We illustrate that the police officer understood your responses when you answered his questions.  Your speech was understandable.  

-We point out that the “odor of alcohol” does not prove intoxication.  You cannot tell what somebody had to drink from odor. You cannot tell when they last drank alcohol.  You cannot tell how much they had to drink.  You cannot tell what a person’s Blood-Alcohol Concentration is from the odor alone.  

-We make clear that the officer has never heard you speak before.  

-We make clear that the officer has never seen your eyes before.  Some people always have red or watery eyes (it is not always caused by alcohol).

-We show a judge or jury that you produced your license and registration upon request; and that you DID NOT give the officer something they didn’t ask for…like a credit card (instead of a license).  

-We highlight all of the success you may have had with a field sobriety test - even if the officer failed you.  We show that the tests are subjective and the officer alone decides who passes or fails.

-If you suffer from any medical conditions, we bring that information out to the court to prove that your so-called failure of the field sobriety tests was not related to alcohol consumption.   

-We point out that there are 86 different kinds of nystagmus (jerking of the eyes) and hundreds of medical causes of nystagmus other than alcohol.

-We also thoroughly question the arresting officer about how they administered the field sobriety tests.  There are only 3 accepted & federally approved Field Sobriety Tests according to the National Highway and Traffic Safety Administration (NHTSA):  the Horizontal Gaze Nystagmus Test (HGN), the Walk and Turn (WAT), and the One-Legged Stand (OLS).  If the officer failed to instruct the test correctly, administer the test correctly, or score the test correctly, then the results of that test are INVALID and UNRELIABLE.  

Remember, it is the Government’s job to prove their case beyond a reasonable doubt.  Our job is to protect you - and to show the Judge or Jury - that Doubt exists.

If charged with DWI “common law” in New York, call us: (607) 229-5184

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Mr. Cyr made it possible for me to be able to continue on with my future without a criminal charge.
— Faith