NY Penal Law § 125.12: Vehicular Manslaughter in the Second Degree

In the event that you are intoxicated from having used drugs or alcohol, and you kill someone while you are driving a car, minivan, SUV or any other type of vehicle, you could face the charge of vehicular manslaughter. In the New York criminal code, three different types of criminal offenses related to killing someone as a result of driving while intoxicated are defined: vehicular manslaughter in the second degree, vehicular manslaughter in the first degree and aggravated vehicular homicide. Out of these three crimes, vehicular manslaughter in the second degree is the least serious offense. Nevertheless, this is a felony offense and should be taken seriously. You will face a charge of vehicular manslaughter in the second degree under New York Penal Law § 125.12 if you kill another individual, and:

1. You operate a motor vehicle while you are legally intoxicated.  This means that your blood alcohol level at the time of the accident is at .08 or above, or that you are driving while your ability to make wise decisions is impaired by drugs,
2. You operate a motor vehicle while you are legally intoxicated and the vehicle is carrying flammable gas, radioactive materials or explosives inside, or
3. You operate a snowmobile or all-terrain vehicle while intoxicated by drugs or alcohol.

Example

Lloyd spends the evening at a party at a friend’s house. While there, he eats and he consumes several alcoholic drinks over a period of 4 hours. He finally leaves the party at 1:00am. Roughly 10 minutes after driving away from his friend’s home, Lloyd’s vehicle collides with another car. The driver of the other vehicle dies 3 days later due to injuries sustained in the accident. The crime lab’s chemical test revealed that Lloyd’s BAC was .09, which is above the legal limit. In this scenario, Lloyd could face prosecution for vehicular manslaughter in the second degree.

Offenses that are Related

Reckless driving: New York Vehicle and Traffic Law § 1212

Vehicular manslaughter in the first degree: New York Penal Law § 125.13

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 second degree. For instance, there are prescribed procedures that must be followed to ensure the accuracy of the chemical test.

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Legal Scenario: What Would You Do?

Scenario

After attending a friend's birthday dinner where you had several glasses of wine, you drove home and struck a pedestrian who stepped off the curb at a poorly lit intersection. The pedestrian died from their injuries two days later, and your blood alcohol level at the scene was measured at 0.09%, just above the legal limit.

Can I really be charged with vehicular manslaughter in the second degree even though I was barely over the legal limit and the pedestrian stepped into the road unexpectedly?

Attorney's Answer

Under NY Penal Law § 125.12, vehicular manslaughter in the second degree applies when a person causes the death of another while operating a vehicle in violation of Vehicle and Traffic Law § 1192, which includes driving with a BAC of 0.08% or higher — regardless of how slightly you exceeded that threshold. The fact that the pedestrian may have contributed to the accident is not a defense to this charge, because the statute focuses on whether you were driving while intoxicated and whether that conduct caused the death. This is a class D felony carrying up to 2 to 7 years in prison. An experienced defense attorney would scrutinize the accuracy of the BAC testing, the calibration of the breathalyzer or blood test equipment, and whether the arresting officers followed proper protocols — any procedural errors could be critical to your defense.

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

The Sentence

Due to the fact that vehicular manslaughter in the second degree is categorized as a class D felony, the maximum possible sentence you could get is 7 years in prison. On top of that, your driving privileges would be suspended or revoked.