¶1(dissenting). Although we agree with the majority’s theoretical analysis in concluding that driving while impaired may be a lesser included offense of driving while intoxicated under subdivision 2 of section 1192 of the Vehicle and Traffic Law in an appropriate setting, we do not believe there is any reasonable view of the evidence contained in this record which would support a jury finding that defendant’s blood alcohol content was between .07 and .10% which, in our view, would be the only basis on which a conviction of impairment could be predicated in this case. His attacks on the test were directed at the reliability of the equipment and the procedures followed by its operator. Defendant’s position was that the result was unreliable and should be rejected in its entirety. There was no proof, not even a suggestion, that there was some reason to believe the test, under other conditions, might have shown an alcohol content within the impaired range identified by section 1195 (subd 2, par [c]) of the Vehicle and Traffic Law. In short, the jury was presented with a take it or leave it situation in which there was no evidentiary basis for a compromise finding. Had there been some expert testimony affirming or conceding that a generally valid test could nevertheless be in error by several hundredths of a percentum, or that no result whatever could have been obtained unless at least .05% of blood alcohol was present, a charge to the jury of driving while impaired would have been required. As the proof developed, however, no reasonable interpretation of the test result would permit a finding that defendant, though guilty of that lesser offense, was somehow innocent of the greater offense of operating a vehicle with a .10% of alcohol in his blood.
¶2It is no answer to say that the jury might have accepted the so-called "common-law” indications of defendant’s impairment for, in our opinion, those factors are simply not relevant to jury consideration of subdivision 2 of section 1192 of the Vehicle and Traffic Law. A violation of that provision can only occur when a motorist has a prohibited amount of alcohol in his or her blood, and it can be established only through knowledge of that amount as exhibited by a test. Consequently, while conviction of impairment following an accusation of intoxication under its terms is permissible (Vehicle and Traffic Law, § 1196), and while a test result not meeting the *117higher .10% standard might otherwise have prima facie effect in determining impairment (Vehicle and Traffic Law, § 1195, subd 2, par [c]), other circumstances demonstrating alcohol consumption would not be competent evidence to establish such lesser offense under subdivision 2 of section 1192 of the Vehicle and Traffic Law as they would be under subdivision 3 of that section. Since defendant was not prejudiced by the erroneous refusal to submit impairment as a lesser included offense under subdivision 3 of section 1192 of the Vehicle and Traffic Law, and since none of his remaining arguments possess merit, the judgment should be affirmed.
¶3Main and Mikoll, JJ., concur with Casey, J.; Kane, J. P., and Staley, Jr., J., dissent and vote to affirm in an opinion by Kane, J. P.
¶4Judgment reversed, on the law, and a new trial ordered.