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

June 27, 2020 Federal Criminal Attorneys

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

If you injure someone while you are driving a vehicle and you are intoxicated by drugs or alcohol at the time of the accident, you have committed the crime of vehicular assault.  Three different types of vehicular assault offenses are defined in the New York Penal Code.  These include vehicular assault in the second degree, vehicular assault in the first degree and aggravated vehicular assault. Among these three types of vehicular assault offenses, vehicular assault in the second degree is the least serious. Nonetheless, it is still a felony offense.  You will face a charge of vehicular assault in the second degree under New York Penal Code § 120.03 if you inflict serious physical injury on another individual using a vehicle you were driving, and:


  • You operate a vehicle while you are legally intoxicated, meaning that your blood alcohol level is at last .08 or driving while your ability is impaired by drugs, or
  • You operate a vehicle while you are legally intoxicated and the vehicle has flammable gas, radioactive materials or explosives in it, or
  • You operate a snowmobile or all terrain vehicle while intoxicated by drugs or alcohol


According to the New York criminal code, the term “serious physical injury” is defined as an injury that is inflicted with so much severity that it creates a substantial risk of death, actually causes death, causes protracted disfigurement or impairment of a person’s health, or causes loss of a bodily organ.



A man crashes into another driver’s car at an intersection. As a result of the collision, the driver of the other vehicle was seriously injured, requiring hours of surgery and extensive rehabilitation. The testimonies of the eyewitnesses are conflicting as to which car ran through a red light. Nonetheless, a chemical test showed that the man’s BAC’s level was .09. The man could be prosecuted for the charge of vehicular assault in the second degree. On the other hand, if it is determined that the other driver caused the accident, then it is possible that the man could face prosecution for driving while intoxicated, but not for vehicular assault.


Offenses that are Related

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

Vehicular assault in the first degree: New York Penal Code § 120.04

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

When law enforcement customarily performs a chemical test to prove that you are intoxicated, the test needs to be performed in such a manner that the results are indisputable. You can dispute the accuracy of the chemical test that was employed by the prosecutor as evidence that you were intoxicated at the time of the accident.


Additionally, if the victim’s injuries were not serious for the purposes of the statute, you may have a defense against a charge of vehicular assault in the first degree. New York courts will closely scrutinize any medical evidence in these cases to determine whether or not the victim sustained a serious injury.


The Sentence

Since vehicular assault in the second degree is a Class E felony, the maximum possible sentence you can get is 4 years in prison. That said, the judge also has the option of not sentencing you to any time in jail, but to a term of probation instead. The final determination on the length of your prison sentence will depend on factors such as your prior criminal record.  Regardless of whether or not you serve any time behind bars,  one of the consequences of being convicted of vehicular assault in the second degree is that your driving privileges will be either suspended or completely revoked.



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