How To Beat a VTL 1192.2 Charge

If you are charged with Vehicle and Traffic Law (VTL) 1192.2 Driving While Intoxicated, then prosecution is alleging that your blood-alcohol content was over the legal limit of .08 percent.

If you blew above the limit, your defense strategy must tackle your breathalyzer results.

Although VTL 1192.2 cases can be very hard to beat—because you have to essentially argue that the breathalyzer machine was wrong—your lawyer may be able to get your charges dropped if he can show that the results are unreliable.

This article discusses strategies your lawyer may be able to use to get your VTL 1192.2 charge dropped, even if you blew above the legal limit.

What is VTL 1192.2?

First off, what exactly is VTL 1192.2?

If you are charged for Driving While Intoxicated in New York City, your criminal complaint likely contains the charges of VTL 1192.2, VTL 1192.3, and VTL 1192.1.

VTL 1192.2 and VTL 1192.3 are misdemeanor crimes of Driving While Intoxicated. On the other hand, VTL 1192.1 is the traffic infraction of driving while impaired, not intoxicated.

If you blew into a breathalyzer and your results were over the legal limit, your top charge is likely VTL 1192.2. If you didn’t blow into a breathalyzer, or your breathalyzer results are below .08, then your top charge is probably VTL 1192.3.

In a nutshell, VTL 1192.2 is known as per se Driving While Intoxicated due to your blood alcohol content being above the legal limit of .08.

On the other hand, VTL 1192.3 is known as the common law Driving While Intoxicated. If you refuse to blow into a breathalyzer but the police say that you smell like alcohol, have slurred speech, etc., then you may be charged with the common law VTL 1192.3 Driving While Intoxicated, even though you didn’t blow into a breathalyzer machine.

VTL 1192.3 charges can be easier to beat than VTL 1192.2 charges, because the prosecution bases its case on the subjective observations of the police officer instead of objective measurements from a breathalyzer machine.

For the same reason, VTL 1192.2 charges are especially hard to beat, because if an objective machine says that your blood alcohol content was above the legal limit when you operated a motor vehicle, it can be hard to discredit that conclusion.

However, depending on the facts of your case, your lawyer may be able to beat your VTL 1192.2 charges despite you blowing above the legal limit.

Common Issues with VTL 1192.2 Charges

The most common ways to beat a VTL 1192.2 charge—even if you blew above the legal limit—include constitutional violations, uncalibrated breathalyzers, and improperly administered breathalyzer tests.

Constitutional Violation

Did the police have probable cause to pull your vehicle over?

If not, then you may have been falsely arrested, and your breathalyzer results may be the fruit of illegal police conduct.

When the police obtain evidence after violating your constitutional right to be free from unreasonable searches and seizures, the evidence can be suppressed. In other words, if your breathalyzer results were obtained as a result of the police violating your rights, then you may be able to get your breathalyzer results thrown out.

Since a necessary element of VTL 1192.2 is that your blood-alcohol content was above .08, if your breathalyzer results are suppressed, it will be impossible for the prosecution to prove that charge against you. Therefore, if you can establish that your constitutional rights were violated, you might be able to beat your charges.

Uncalibrated Breathalyzer

Ultimately, breathalyzers are imperfect. They are machines that must function properly before their results are accepted.

For instance, you may have an air-conditioning unit in your home that is connected to a thermostat. Things can happen to your air-conditioner and thermostat—such as debris in the fan, leaking coolant, broken sensors, and so on—which may result in your thermostat inaccurately functioning. At times, you may need to have an HVAC technician come to your home to repair broken parts or recalibrate the system.

Breathalyzers are no different. They must be properly functioning and calibrated to provide accurate results. In fact, the NYPD is supposed to routinely calibrate their breathalyzers to make sure that they are functioning properly.

Criminal defendants are entitled to receive the machine’s recent calibration records. Your attorney can analyze the records to determine whether the machine was recently calibrated when the breathalyzer test was performed on you. If the records show that the machine was improperly calibrated when the test was performed on you, you may be able to get the breathalyzer results tossed, or at minimum you can argue to the jury that the results are unreliable and insufficient to prove your guilt beyond a reasonable doubt.

Improperly Administered Test

Even if the breathalyzer machine was properly working when you performed your breathalyzer test, the results may be inaccurate if your breathalyzer test was improperly administered.

A breathalyzer machine does not directly measure the alcohol in your blood and instead infers your blood-alcohol level based on applying scientific principles to the alcohol content of your breath.

To reach conclusions about your blood-alcohol level based on your breath-alcohol content, the breathalyzer machine relies on certain scientific principles that make certain assumptions. For these assumptions to be accurate, the police must administer the test very carefully and follow all the instructions given by the breathalyzer manufacturer.

If the procedure is not followed, the results can be inaccurate. A skilled criminal defense lawyer knows the procedures that the police must follow and can determine if the results in your case may be inaccurate. When breathalyzer results are inaccurate, they are sometimes thrown out by the judge, and at minimum a criminal defense lawyer can argue to the jury that they are insufficient to prove your guilt beyond a reasonable doubt.

Charged with VTL 1192.2? Contact Us for Help

If you are charged with Driving While Intoxicated under subsection VTL 1192.2, contact NYC DWI attorney Cody Warner for a free consultation. He has handled hundreds of DWI cases and can assess your situation to determine the best strategy for your case.