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Why am I charged with DWI twice?
When you are arrested for DWI, there are two primary charges that police often make against you:
VTL 1192(2) Driving with a BAC of .08% or higher; and
VTL 1192(3) Driving While Intoxicated.
If you take a breathalyzer test, you are almost certain to be charged under both sections of the law. Why?
"VTL 1192(2) Driving with a BAC of .08% or higher" means that, whether you are acting drunk or not, you have broken the law by operating a motor vehicle on a public highway with a BAC of above .08%. For some people, .08% doesn't feel drunk, or even "buzzed," but it's against the law.
"VTL 1192(3) Driving While Intoxicated" means that, regardless of what your BAC is, you had consumed enough alcohol to intoxicate you, and it is against the law to drive in that condition. (I currently have a client charged with violating VTL 1192(3), and his BAC was .06%.)
So, if you refuse a breathalyzer, and if the police officer thinks you are drunk, you will be charged with VTL 1192(3). If the police officer thinks you are drunk, and you take the breathalyzer and blow a .08 or higher, you will be charged with VTL 1192(2) and VTL 1192(3).
So that is why you are charged with DWI twice.
I once had a client come in, charged with VTL 1192(3), but there was a breathalyzer test of .07%. In other words, the police officer who could have charged her with the non-criminal offense of DWAI (Driving While Ability Impaired)... the same police officer who said he would "help her out" if she just took the breathalyzer test... that police officer overcharged her. Police officers aren't all bad people, but remember that they are not your friends, and they are not there to help you when you are suspected of committing a crime. Their job is to make arrests.
If you are charged with DWI in Rochester, Geneseo, Batavia or the surrounding areas, feel free to call P. Adam Militello, Esq., at (585) 485-0025 for a free telephone consultation.