NY Penal Law § 120.03: Vehicular assault in the first degree

NY Penal Law § 120.03: Vehicular assault in the first degree

If you crash into a pedestrian or another driver with a vehicle, it could be just an accident. On the other hand, it might also be a type of assault known as vehicular assault. In other words, you used the car, truck, or SUV that you were driving as a dangerous instrument to commit a crime against another person. You would have committed vehicular assault if you injure another person with your vehicle in the act of driving unlawfully.  You must have used a vehicle to cause serious physical injury to another person to be prosecuted under New York Penal Code § 120.03.  You must have been driving while intoxicated and:

• Your Blood alcohol Content (BAC) was at least .08, or
• You were previously convicted within the past 10 years of driving while intoxicated in New York or another state, or
• Your driving privileges had been suspended in another state after you had been convicted of driving while intoxicated, or
• Your driving privileges had been suspended in another state after you refused to submit a test to determine if you were driving while intoxicated, or
• You inflicted serious physical injury to more than one person, or
• You have been  convicted in the past of vehicular manslaughter, or
• A child who is younger than 15 years old was in the car with you and sustained serious injuries in the accident.

For Example

A woman 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 her from driving herself since they believe that the woman is intoxicated. They even remind her that she already has been convicted of the crime of driving while intoxicated once before. The woman assures her friends that she is not so intoxicated that she cannot make it home.  Along the way, the woman ends up driving the wrong way down a one-way street and gets into a collision with another vehicle. Both the driver and the passenger in the other vehicle are seriously injured in the collison.  If the woman’s BAC shows that she is legally intoxicated, then that woman can be charged and prosecuted for vehicular assault in the first degree because of her previous conviction within the past 10 years, or if her BAC is .08 or higher.

Offenses that are Related

Aggravated vehicular assault: New York Penal Code § 120.04-A

Vehicular assault in the second degree: New York Penal Code § 120.03

Driving while intoxicated: New York Vehicle and Traffic Law § 1192.3

Driving while ability impaired by drugs: New York Vehicle and Traffic Law § 1192.4

Possible Defenses

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When law enforcement performs a chemical test to find out that you are intoxicated, the test has to be performed in such a manner that the results are unassailable. You can challenge the accuracy of the chemical test that was utilized by the prosecutor as evidence that you were intoxicated. A possible alternative defense would be the lack of seriousness of the victim’s injuries. New York courts will closely examine the medical evidence in such a case to determine whether or not the victim sustained any serious injuries as defined in the New York Penal Code.

Legal Scenario: What Would You Do?

Scenario

After leaving a bar where you had two glasses of wine with dinner, you ran a red light and struck a cyclist who suffered a broken pelvis and traumatic brain injury. Police administered a breathalyzer at the scene that registered 0.09%, just over the legal limit, and you now face charges under NY Penal Law § 120.03.

What exactly does a vehicular assault in the first degree charge mean for me, and what kind of penalties am I looking at?

Attorney's Answer

Vehicular assault in the first degree under NY Penal Law § 120.03 is a class D felony, which means you could face up to seven years in state prison if convicted. The prosecution must prove that you operated a motor vehicle while intoxicated under VTL § 1192 and caused serious physical injury to another person through that operation. Your breathalyzer result above 0.08% gives them a strong basis for the intoxication element, but we can challenge the calibration of the device, the timing of the test, and whether proper procedures were followed. We would also examine whether the cyclist's own actions contributed to the collision, which could be critical in building your defense.

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

Sentence

Since vehicular assault in the first degree is categorized as a Class D felony, the maximum possible sentence you can get is 7 years in prison and a fine of $5,000. You could also be ordered to pay restitution to the persons who were injured in the accident or suffered property loss as a result. Furthermore, your driving privileges can be suspended or even revoked.