It is a cover your bases charge. 1192.2a means .18 BAC reading or over. 1192.3 is common-law meaning no reading but it is the officer's opinion that the driver was intoxicated. If the reading is suppressed or not believed by the jury, they can still potentially get a conviction.
Joseph A. Lo Piccolo, Esq.
President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
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The 1192.3 is a common law charge (it does not require an actual BAC reading). The 1192.2a is based off of the BAC. They are very similar. Cops charge them both to hedge their bets. Regardless, you need an attorney.
Scott Gross Esq
631 456 2326
Former Suffolk Prosecutor/Free Consultations.
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As already stated, the different statutes give the prosecutor alternative means to probe the case. I suggest sitting down with an experienced attorney to prepare for the case.
I have been a criminal defense attorney in New York for over 20 years. website: Brooklynlaw.net Phone #: 718-208-6094 email: firstname.lastname@example.org. This answer is only for informational purposes and is not meant as legal advice.
One of the charges is based on your breathalyzer results (VTL 1192.2). It is possible that a skilled defense lawyer could convince a jury that the breathalyzer results are unreliable or erroneous. By charging you with an additional count of (VTL 1192.3), a jury could entirely disregard the breathalyzer reading and still find you guilty based on the officer's opinion and observations which can include odor of alcohol on breath, red watery eyes, slurred speech, unsteady on your feet, etc.
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This is common. The top charge is actually the aggravated because his BAC is allegedly .18 or higher. The 1192 2 covers .08 to .18 in case theres any issue proving the aggravated. 1192 3 is called the common law DWI which can be proven by observations ex. slurred speech unsteady on his feet etc. Being charged in this way does not make the case more serious but gives the prosecutor different ways to prove it.
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