VTL 1192-2 vs VTL 1192-3 Distinction

When devising a trial strategy to defend against a VTL §1192-2 charge predicated upon a breath test score, the distinction between this section and VTL §1192-3 — common law DWI — becomes very important.

People v. Miller (1993)

In People v. Miller, 199 A.D.2d 692 (3d Dept. 1993), the Court upheld the defendant's conviction for VTL §1192-2 where the defendant's BAC score was .14% as shown by a chemical test of his breath. In noting the distinction between VTL §1192-2 and VTL §1192-3, the Court wrote:

"VTL §1192(2) and (3) are separate crimes having distinct elements, namely, 1192(2) is based upon the defendant's blood alcohol content while 1192(3) is based upon the manner a defendant operated his vehicle and his condition."

Miller, 199 A.D.2d at 695.

The Key Distinction

VTL §1192-2 is based upon the defendant's blood alcohol content, while VTL §1192-3 is based upon the manner in which a defendant operated his vehicle and his condition. These are separate crimes with distinct elements, and this distinction is critical when constructing a defense strategy.

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