Nassau County Vehicular Assault in the First Degree

N.Y. Pen. Law § 120.04

When you injure someone with a vehicle, it may be more than merely an unfortunate car accident. If may be a felony assault. Assault is a crime that involves one person using violence to injure another person. Assault can be accomplished in many different ways including by using a dangerous instrument such as a vehicle. If you are driving a car, truck, or SUV, for example, in an unlawful manner and you end up causing an accident in which another person is injured, you would have committed vehicular assault. There are three different vehicle assault offenses in the New York criminal code: vehicular assault in the first degree, vehicular assault in the second degree and aggravated vehicular assault. Because vehicular assault is considered such a serious crime, each vehicular assault offense is a classified as a felony. While vehicular assault in the first degree is not the most serious vehicular assault crime it is still a Class D felony. If you are convicted you will end up in prison for several years. If you have been arrested and charged with vehicular assault in the first degree it is important that you immediately contact an experienced Nassau County Vehicular Assault in the First Degree Lawyer who will vigorously defend you to ensure that your case is resolved in the best possible manner given the facts of your case.

Definition of Vehicular Assault in the First Degree

There are a number of ways that you can commit the crime of vehicular assault in the first degree. You must have caused another person a serious physical injury using you vehicle, and

  • You were legally intoxicated, meaning that your blood alcohol level is .18, or
  • Within the past 10 years you have previously been convicted of driving while intoxicated in New York or another state, or
  • Your driving privileges have been suspended in another state because you were convicted of driving while intoxicated, or
  • Your driving privileges have been suspended in another state because you refuse to take a test to determine if you were driving while intoxicated, or
  • You cause serious physical injury to more than one person, or
  • You have been previously convicted of vehicular manslaughter, or
  • A child who is less than 15 years old is in the car with you and is seriously injured.

It is a Class D felony. N.Y. Pen. Law § 120.04

Serious physical injury is one that is so severe that it creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00. In People v. Tran, 729 N.Y.S.2d 851 (2001), in determining whether the victim of an assault suffered a injury that was a serious physical injury, the court stated that for an injury to be serious there must be some evidence of disfiguration, amputation or of a disabling injury to the victim

Defense to a Vehicular Assault in the First Degree Charge

Depending on the circumstances of your case, there are several ways to defend against a vehicular assault. While there are a number of different factors that may go into such as charge, the 2 factors that must be present for any vehicular assault charge is that you must have been intoxicated by drugs or alcohol while driving a motor vehicle and you must have caused serious injury to the victim. As with any case of driving while intoxicated, you can challenge the test the chemical test that showed that you were intoxicated. Chemical tests are very sensitive and a wide range of factors can affect chemical tests, making such a test inaccurate. For example, the consumption of food or medication could impact the accuracy of a chemical test. You may also have a defense related to how the test was administered. New York has rules that must be followed as to how chemical tests must be administered and how the equipment must be calibrated.

Another possible defense is the extent that the victim was injured. For vehicular assault in the first degree the victim must have suffered a serious physical injury. Mere temporary bruising, a few scratches and fleeting pain would not be enough to sustain a charge of vehicular assault in the first degree. The victim must have had an injury so severe that it was life-threatening, caused injury to an organ, caused amputation, or left a significant, permanent scar. Factors that the court will consider in deciding whether or not an injury was serious may include:

  • Whether the victim lost consciousness
  • Whether the victim was able to hold a conversation immediately following the incident
  • Whether the victim suffered a permanent scar
  • Whether the victim experienced a great deal of pain
  • Whether any vital organs were damaged
  • Whether the victim had to undergo surgery
  • Whether there was a significant loss of blood
  • Whether the victim required many stitches
Arrest and Arraignment

If you are arrested for vehicular assault in the first degree, first you will be taken to the local police precinct. Within 24 hours of your arrest you will be arraigned. At your arraignment hearing you will learn the exact charges against you. In some cases the charges will be different from what you expected. Based on a review of the evidence, the prosecutor may decide to raise or lower the charges, or to add additional charges. You will also learn whether or not bail will be required.

Because vehicular assault in the first degree is a felony New York law requires that the prosecutor present your case to the Grand Jury. The Grand Jury will decide whether you should be indicted, meaning charged with a crime. If you are indicted you may be able to negotiate a plea bargain with the prosecutor that will require you to plead guilty to a lesser crime that will result in a lighter sentence that you would otherwise receive. For example, the prosecutor may offer you a deal that would require you to plead guilty to vehicular assault in second degree instead of vehicular assault in the first degree. If you are not able to reach a plea agreement with the prosecutor then your case will go to trial.

Consequences of a Vehicular Assault in the First Degree Conviction

If you are convicted of vehicular assault in the first degree your sentence may include prison, payment of fines and fees, probation, conditional discharge and loss of driving privileges.

Prison

Because vehicular assault in the first degree is a Class D felony, the maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.00. However, the judge has the option of not sentencing you to any time in jail, but to probation. The actual sentence you will receive will largely depend on your prior criminal record. If you have no felony convictions within the prior 10 years there is no minimum sentence that the judge is required to give you. The judge could sentence you to probation, to a few months in jail, or the judge could sentence you to prison. If your status is that of a predicate offender, meaning that you have been convicted of a felony within the prior 10 years, then the court will sentence you to at least 2-4 years for a vehicular assault in the first degree conviction. If you are a persistent felony offender meaning that you have 2 felony convictions, then the minimum sentence you will receive is 15-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

Probation

If you are convicted of vehicular assault in the first degree your sentence may include 5 years of probation. Depending on your criminal history and the facts of your case, your sentence may include just probation or a split sentence that includes prison and probation. While you are on probation there will be several rules that you must follow while you are on probation. N.Y. Pen. Law § 65.10. The rules associated with probation vary from person to person, but may include that:

  • You must not commit a crime
  • You cannot leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with people who you know have criminal records
  • You must not patronize unlawful or disreputable places
  • You must not possess a firearm
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must undergo psychiatric treatment
  • You must complete an alcohol or substance abuse program
  • You must stick to a curfew
  • You must have job or attend school
  • You must submit to electronic monitoring
  • You must perform community service
  • You must notify your Probation Officer of a new address
  • You must regularly report to your Probation Officer

If you violate any of the terms of your probation, your Probation Officer may file a Violation of Probation with the court. You will then be required to appear before the judge who originally sentenced you to probation. That judge will listen to evidence and determine if you did indeed violate the terms of your probation. If the violation is minor such as failing to report to your probation officer of report a new address, then the judge may choose not to violate you. On the other hand if the violation is significant such as you committing another crime, the judge could revoke your probation and resentence you to jail.

Conditional Discharge

The also has the option of sentencing you to conditional discharge. As its name implies, this sentence has conditions. The main condition is that you do not commit a crime for a year. However, there could be other conditions such as you must attend a alcohol treatment program or perform community service. If you violate any of the conditions the court has the option to go back and reopen the sentencing. This means that the court can resentence you to up to year in jail.

Fines, Fees and Restitution

Being convicted of vehicular assault in the first degree will have significant financial consequences as you will be required to pay a fine, fees and restitution. The judge may order you to pay a fine of up to $5,000. Furthermore, you will be required to pay a "mandatory surcharge" of $300, a victim assistance fee of $25. N.Y. Pen. Law § 60.35, as well as a probation supervision fees of $30 per month.

In addition the court may order you to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000, plus a 5% surcharge. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

If you do not pay the ordered fine, fee or restitution, you may be charged with a crime and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.

Loss of Driving Privileges

If you are convicted of vehicular assault in the first degree, your license may be suspended or revoked for several months or for well over a year. If your license is revoked you will have to apply to get it reinstated. If you are found to be driving while your license is revoked or suspended you will be charged with a misdemeanor and face a fine and jail time.

Long-Term Consequences

Even after you serve your prison term, probation term and pay your fees, fines and restitution, there will be additional long-term consequences to being convicted of vehicular assault in the first degree.

  • Criminal record
  • Difficulty finding a job
  • Refused admission to some colleges
  • Barred from certain careers and professional licensing such as teaching, practicing law, and operating a child day care business
  • Barred from owning a gun
  • Barred from serving on a jury
  • Ineligible for certain government benefits such as welfare or federally funded housing
  • Deportation

Being arrested for vehicular assault in the first degree can leave you shocked and confused. After all, you have just been in a vehicle accident. However, you should take the situation seriously. If you are convicted many aspects of your life may change forever. However, there may be defenses to a charge of vehicular assault that only an experienced practitioner will understand. Thus, if you have been arrested for vehicular assault in the first degree it is important to immediately contact someone who understands the New York criminal system. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with vehicular assault in the first degree as well as other crimes such as vehicular assault in the second degree, aggravated vehicular assault, driving while intoxicated, driving while ability impaired, reckless endangerment, and stalking. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations:

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