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What do these charges mean and how can it affect someone already on probation?

Bronx, NY |

My husband made an illegal U-Turn and was pulled over by a police officer. He was then asked to blow into the breathalizer which blew below the limit. However, my husband is on probation for a past DWI. The charges below are the charges for being pulled over. How will the new probation violation charge affect him?

VTL 1192.3 03 Unclassified Misdemeanor, 1 count, Not an arrest charge, Arraignment charge
Op Mv While Intoxicated 1
Indictment Count:
VTL 1192.3 03
**TOP CHARGE** Unclassified Misdemeanor, 1 count, Arrest charge, Arraignment charge
Op Mv While Intoxicated 1
Indictment Count:
VTL 1192.1 01 Infraction, 1 count, Arrest charge, Arraignment charge
Dwai Spec Vehicle 1st Off
Indictment Count:

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Attorney answers 4


Getting arrested while on probation will usually result in the Probation Department filing a violation of probation. Once the specifications are filed a probationer is entitled to a hearing to determine if indeed a violation of probation has occurred. If the court determines that probation was indeed violated the court can resentence the probationer to any sentence that would have been authorized for the charge that the probationer originally pleaded guilty to or was found guilty of. This is notwithstanding whatever the outcome of the new charges might be. In your particular scenario if your husband blew below the legal limit, in all probability the charges should be dismissed and that in it of it self would insure that your husband will not be found to have violated probation. What might very well happen is that Probation will file the violation specifications but will hold off on any proceedings until the new charges are dealt with. I suggest that your husband contact an attorney as soon as possible and advise him/her of the situation. Either the attorney who represented him on the first charge or the attorney that is representing him on the new charges. Good Luck!


The police in NYC will sometimes charge what is known as "common law" DWI (VTL 1192.3), despite the fact that the defendant blew under the .08 limit. They will often try and justify this using a concept known as "retrograde extrapolation"; the notion that the defendant's blood alcohol level was higher when he/she was driving, but became lower by the time the breath test was administered. This has been shown to be junk science in several cases I have handled, and there's no reason the police or DA should be allowed to get away with it in this case.

As DWI or even a DWAI (impaired) conviction can result in a violation of probation and a resentencing to jail. Thus it's important that you hire an experienced criminal lawyer who is particularly knowledgeable about DWI.

If you would like to discuss this case further with me, please feel free to contact me by telephone or email at anytime.

Best regards,

Tom Kenniff


I agree with both of the previous attorneys. The only thing I'll add is that in light of the low blow, the prosecution will likely start making what would normally be very lenient offers in the new arrest- for example, a plea to a traffic infraction of "driving while impaired". Since that's the worst you husband likely faces at trial, it's probably not an offer he should be jumping on, since any conviction whatsoever for the new case can seriously hurt him in the violation of probation. Thus, he probably can, and should be, aggressive in the defense of the new case.

Every case is different, every case is very specific to its facts, and it's worth going over it carefully with an attorney you trust. Good luck- call me if you'd like.


If his breathalyzer result was below the legal limit, then he should not have been arrested for DWI. However, if his probation conditions prohibited him from consuming alcohol and there is proof that he did, he may be in trouble. If they prove that he violated the law to any degree in the violation of probation hearing, his probation can be revoked and he can be resentenced on his original charges. He should consult with an attorney immediately to discuss this matter and his exposure further.

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