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 § 1193-3 – common law DWI – becomes very important. 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.