Nassau County Vehicular Assault in the Second Degree

N.Y. Pen. Law § 120.03

Assault is the criminal charge you will face if you intentionally or recklessly cause physical injury to someone else. If you are intoxicated by drugs or alcohol and you injure someone while you are driving a vehicle, you did not merely have a car accident. You have committed a type of assault called vehicular assault. When using a vehicle in such a negligent manner the vehicle becomes a dangerous instrument controlled by you. Legally it is viewed just like assaulting someone in other ways such as during a fist fight, using a gun, or using a knife. New York Penal Law defines three different types of vehicular assault offenses including vehicular assault in the second degree, vehicular assault in the first degree and aggravated vehicular assault. Of these three types of vehicular assault, vehicular assault in the second degree is the least serious crime. However, it is still a felony. If you are convicted you will lose your driving privileges and you may end up in prison for several years. If you have been arrested and charged with vehicular assault in the second degree or any charge related to vehicular assault it is important that you immediately contact an experienced Nassau County Vehicular Assault in the Second Degree Lawyer who will explain to you the legal process and who will vigorously defend you and support you from the beginning of your case until it is resolved.

Requirements for a Vehicular Assault in the Second Degree Charge

You will face a charge of vehicular assault in the second degree if you cause serious physical injury to another person, 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

It is a Class E felony. N.Y. Pen. Law § 120.03

Serious physical injury is defined as an injury 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. This means that the victim must have more than a few scrapes, bruises or cuts. However, a traumatic brain injury or broken leg that requires a significant recovery time would likely qualify as a serious physical injury.

Defense to a Vehicular Assault in the Second Degree Charge

Determination of Intoxication. When law enforcement performs a chemical test to prove show that you are intoxicated, the test has to be performed so that the results are unassailable. You can challenge the accuracy of the chemical test that was used by the prosecutor as evidence that you were intoxicated. 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.

Type of Injury. The lack of seriousness of the victim's injury may provide a defense to a charge of vehicular assault in the first degree. New York courts will look closely at the medical evidence to determine whether or not the victim suffered a serious injury. Factors which courts may consider include:

  • Whether the victim lost consciousness
  • Whether the victim was able to hold a conversation
  • 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
Arrest and Arraignment

If you are arrested for vehicular assault in the second degree 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. With a vehicular assault in the second degree charge additional charges often include driving while intoxicated, assault in the second degree, and reckless endangerment. You will also learn whether or not bail will be required.

Because vehicular assault in the second 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 than you would otherwise receive. 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 Second Degree Conviction

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

Prison

Because vehicular assault in the first degree is a Class E felony the maximum possible sentence is 4 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.

  • Prior convictions: Prior convictions include felony convictions within the last 10 years.
  • Non-Violent Predicate: A non-violent felony conviction within the last 10 years.
  • Violent Predicate: A violent felony conviction within the last 10 years.
  • Persistent Felony Offender: At least 2 prior felony convictions.

If you have no prior convictions, the judge may sentence you to probation. If your status is that of a predicate offender, then the court will sentence you to at least 1 1/2 to 3 years. If you are a persistent felony offender, then the minimum sentence you will receive is 15-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.10

Probation

If you are convicted of vehicular assault in the second degree your sentence may include probation. Because this offense is a felony the probation term will be 5 years. While you are on probation there will be several rules that you will be required to follow. N.Y. Pen. Law § 65.10. Such rules 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.

Fines, Fees and Restitution

Your sentence may include a financial component. You may ordered to pay a fine of up to $5,000. In addition, you may be ordered 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.

Furthermore there are fees associated with being convicted of a felony, including a $300 mandatory surcharge as well as a $30 monthly supervision fee for those whose sentence includes a type of community supervision such as probation.

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 second degree, your license will 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. In addition, there are fees associated with restoring your driving privileges and your license as been suspended or revoked. If law enforcement stops you and discovers you to be driving without a valid license 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 second degree. Because you will have a criminal record you may have difficulty find a job. You also may be refused admission to certain colleges. You will be barred from professions that require state or federal licensing such as working as an attorney, teacher, security guard, or operating a child day care business. You will be ineligible for some government benefits such as federally funded housing. If you are not a U.S. citizen you could be deported.

When you drive while intoxicated you have committed a crime. If you do so and injury someone, the crime you have committed is raised to the level of a felony assault with multiple short term and long term consequences. A vehicular assault case can be quite complex, relying on complicated details regarding chemical tests and medical reports. Thus, if you have been arrested for vehicular assault in the second degree or any other type of vehicular assault it is important to immediately contact someone who has extensive experience representing clients in New York criminal courts. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with various types of vehicular assault as well as other crimes such as menacing, reckless endangerment, stalking, and rape. 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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