If you strike and kill a pedestrian or another driver with your vehicle, it could be perceived as much more than just a bad car accident. It might also be a serious criminal offense. Pursuant to New York’s criminal code, if you are driving your car while you are intoxicated or transporting dangerous materials, and you bring about someone’s death, you are committing crime.  Under these circumstances, you could be charged with one of three criminal offenses.  These include vehicular manslaughter in the first degree, vehicular manslaughter in the second degree, and aggravated vehicular homicide. For you to be prosecuted for vehicular manslaughter in the first degree under New York Penal Law § 125.13, you bring about the death of another individual while driving and:

1. Your Blood alcohol Content  (BAC) was at .08 or higher,
2. Your driving privileges had previously been suspended in another state as a consequence of a conviction of driving while intoxicated,
3. Your driving privileges had previously been suspended in another state due to the fact that you refused to take a test to determine if you were driving while intoxicated,
4. Within the past 10 years, you have been convicted of driving while intoxicated in New York or any other state,
5. You brought about the death of more than one person,
6. You have a previous conviction of vehicular manslaughter on your criminal record, or
7. A child who is younger than 15 years old was in the vehicle with you and was killed in the collision.

For Example

Nelly spends the night hanging out at a bar until the early hours of the next morning and then decides to drive herself home. Her friends offer to drive her.  They discourage Nelly from driving herself since they believe that she is intoxicated. They even remind Nelly that she already has been convicted of the crime of driving while intoxicated once before. Nelly assures her friends that she is not so intoxicated that she cannot make it home.  Along the way, Nelly ends up driving the wrong way down a one-way street and gets into a collision with another vehicle. Tragically, the driver of the other vehicle dies.  If the woman’s BAC shows that she is legally intoxicated, then Nelly can be charged and prosecuted for vehicular manslaughter in the first degree because of her previous conviction for driving while intoxicated within the past 10 years, or if her BAC level is .08 or higher.

Offenses that are Related

Reckless driving: New York Vehicle and Traffic Law § 1212

Vehicular manslaughter in the second degree: New York Penal Law § 125.12

Aggravated vehicular homicide: New York Penal Law § 125.14

Possible Defenses

Should you be able to challenge the veracity of the chemical test that would be used to demonstrate that you were intoxicated above the legal BAC limit at the time of the accident, then you might have a successful defense against a charge of vehicular manslaughter in the first degree. For instance, there are prescribed procedures that must be followed to ensure the accuracy of the chemical test.

DEFENSE TEAM SPOTLIGHT

Todd Spodek

Lead Attorney & Founder

Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.

NY Bar Admitted NJ Bar Admitted Federal Courts

Meet the Full Team

Legal Scenario: What Would You Do?

Scenario

After leaving a holiday party where you had several drinks, you struck and killed a cyclist while driving home on a dark road in Queens. Police administered a breathalyzer at the scene showing your BAC at 0.12, and prosecutors are now telling you that you face charges under NY Penal Law § 125.13 for vehicular manslaughter in the first degree.

What exactly does a first-degree vehicular manslaughter charge mean for me, and what kind of prison time am I looking at?

Attorney's Answer

Vehicular manslaughter in the first degree under NY Penal Law § 125.13 is a class C felony, which carries a potential sentence of up to 15 years in state prison. The statute applies when a person causes another's death while operating a vehicle under the influence of alcohol or drugs, particularly when aggravating factors are present such as a BAC of 0.08 or higher, a suspended license, or a prior DWI conviction within the past ten years. Given that your breathalyzer registered 0.12, prosecutors will argue that your intoxication was the direct cause of the cyclist's death. We need to immediately examine the calibration records of the breathalyzer device, the circumstances of the traffic stop, and whether proper field sobriety protocols were followed, because weakening the BAC evidence could be the difference between a manslaughter conviction and a reduced charge.

This is general information only. Contact us for advice specific to your situation.

The Sentence

Since vehicular manslaughter in the first degree is categorized as a class C felony, the maximum possible sentence you could face is 15 years in prison.  You could also be ordered to pay a  substantial fine. On top of that, your driving privileges will be suspended or revoked.