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NY Penal Law § 120.04-a: Aggravated Vehicular Assault

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 120.04-a: Aggravated Vehicular Assault

If you are intoxicated by the criteria defined under the New York Penal Code, and you decide to operate a vehicle and you injure another person, you will be charged with vehicular assault. Three different types of vehicular assault offenses are defined in New York Penal Law, the most serious of which is aggravated vehicular assault. You will face a charge of aggravated vehicular assault under New York Penal Code § 120.04-a if you drive recklessly while intoxicated, cause serious physical injury to another person, 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.


This crime is a class C felony. This charge is is akin to vehicular assault in the first degree. The primary difference is that to be convicted of aggravated vehicular assault, you must have been driving the vehicle recklessly. The legal definition of reckless driving in the New York Vehicle and Traffic Law § 1212 is driving a motor vehicle in a manner that unreasonably interferes with the proper use of a public highway or unreasonably endangers other users of a public highway.


For Example

A man goes to a bar one evening to unwind after a long day at work. He has a few beers. Although he feels a little lightheaded from the drinks, he decides to drive himself home. He approaches a stop sign and looks both ways before proceeding through the intersection. Unfortunately, instead of stopping completely, he slows down a little, but then he accelerates. At the same time, a woman steps into the crosswalk in front of the man’s car and he hits her. She is badly injured and is rushed to the hospital emergency room. The police who arrive at the scene smell alcohol on the man’s breath. Since he performs poorly on the field sobriety test, officers place him under arrest. If a chemical test shows that he has a BAC of .08 or more, he could be prosecuted for aggravated vehicular assault.


Offenses that are Related

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

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

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

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


Possible Defenses

When law enforcement conducts a chemical test to demonstrate that you are intoxicated, the test must  be performed so 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 driving while intoxicated.


You could also have a defense related to the way in which the test was administered. New York has regulations that must be followed as to the way chemical tests must be administered and how the testing equipment needs to be calibrated.



Sinse aggravated vehicular assault is a class C felony, the maximum possible sentence you could be looking at is 15 years in prison, plus a fine of up to $5,000. On top of that, your driving privileges will be suspended or revoked.



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