New York Aggravated Vehicular Assault

Driving while under the influence of drugs, alcohol or both is a serious problem in New York and across the country. Thousands and thousands of people are seriously injured each year by drivers who recklessly operate vehicles while they are impaired by drugs or alcohol. When in the hands of an impaired driver, a car, truck, SUV, snowmobile or ATV becomes more than a mode of transportation. It becomes a dangerous instrument that can cause serious injury or death. Under New York Penal Law if you are intoxicated, decide to operate a vehicle and injure another person, you will be charged with vehicular assault. New York Penal Law defines three different types of vehicular assault offenses, the most serious of which is aggravated vehicular assault. If you are convicted not only will you lose your driving privileges you may be sent to prison for up 15 years. Because of what is at stake, if you are in need of a criminal lawyer because you have been arrested and charged with aggravated vehicular assault it is critical that you immediately contact an experienced New York aggravated vehicular assault lawyer who will review the facts of your case and work closely with you to develop an aggressive defense to the charges.

The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with assault and other serious crimes such as domestic violence, DWI, grand larceny, and sex crimes. Find out what we can do for you by contacting us to schedule a free, no obligation consultation regarding your case.

Requirements for an aggravated vehicular assault charge

You will face a charge of aggravated vehicular assault if you drive recklessly and 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 or impaired by drugs 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 C felony. N.Y. Pen. Law § 120.04-a. This charge is similar to vehicular assault in the first degree. The primary difference is that to face aggravated vehicular assault you must have driven the vehicle recklessly. Reckless driving is defined in the New York Vehicle and Traffic Law as 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. N.Y. VAT. Law § 1212

Like both vehicular assault in the first degree and vehicular assault in the second degree, aggravated vehicular assault requires that the victim suffer a serious physical injury. 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

Defense to a vehicular assault in the second degree charge

Determination of Intoxication . When law enforcement performs a chemical test to prove 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 as to 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 aggravated vehicular assault 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 an aggravated vehicular assault charge additional charges often include driving while intoxicated, assault in the second degree, and reckless endangerment. During the arraignment hearing you will also learn whether or not bail will be required.

Because aggravated vehicular assault 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 aggravated vehicular assault is a class C felony the maximum possible sentence is 15 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 be based on a number of factors, including 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 violent or nonviolent predicate offender, then the court will sentence you to at least 3 to 6 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. For example, in the case of In the Matter of Benedict , 968 N.Y.S.2d 875 (2013), after being convicted of aggravated vehicular assault, defendant Tabber Benedict was sentenced to 3 1/2 to 10 years in prison.

Probation

If you are convicted of aggravated vehicular assault your sentence may include probation. If so, your probation term will be for 5 years. There will be several rules that you must follow while you are on probation. N.Y. Pen. Law § 65.10.

  • You must not commit a crime
  • You cannot leave the State of New York without permission from your probation officer
  • You must consent to warrantless searches
  • You must not associate with people who have criminal records
  • You must not patronize disreputable places
  • You must not possess a firearm
  • You must not use or possess a controlled substance
  • You must refrain from consuming alcohol
  • You must undergo any ordered medical or 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 support your family
  • 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 your Probation Officer believes that you have violated any of the terms of your probation, a warrant may be issued for your arrest. You will have to appear before the judge that originally sentenced you. The possible consequences for probation violation include being permitted to stay on probation with additional terms, additional sentencing for new offenses, probation being revoked and you being sent to prison.

Fines, fees and restitution

Part of the consequences of being convicted of aggravated vehicular assault is that you will have to pay a fine, fees and restitution that will add up to thousands of dollars. The fine for a felony conviction is up to $5000. The fees include a "mandatory surcharge" of $300, a victim assistance fee of $25 as well as probation supervision fees of $30 per month.

You may also be required to pay restitution to the victim. Restitution is compensation that as part of your sentence the court may order you to pay the victim. Restitution typically includes reimbursement for medical bills, counseling expenses, and loss of earnings and replacement of damaged property. Generally, the maximum amount of restitution is $15,000. 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 a fine, fee or restitution as ordered by the court, you may be sent back to prison. These financial obligations are part of your sentence. This means that you will not have served your full sentence until you fulfill your financial obligations.

Loss of driving privileges

If you are convicted of aggravated vehicular assault 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 if your license has been suspended or revoked. If you are found to be driving a vehicle without a valid license you will be charged with aggravated unlicensed operation. You will have to pay a fine and you may be sent to jail.

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.

  • Criminal record
  • Difficulty finding a job as most employers perform criminal background checks
  • 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, if you are not U.S. citizen- even if you are in the U.S. legally
  • Temporarily barred from voting
Contact the Law Offices of Stephen Bilkis & Associates

Injuring someone in an accident that results from reckless driving and intoxication is more than just an insurance headache. It is a serious crime that can change the course of the rest of your life. You could be sent to jail for several years, losing precious time with your loved ones. You could be required to pay thousands of dollars in fees, fines, and restitution. You will lose the privilege of having a driver's license. You will have a permanent criminal record. However, just because you were charged with aggravated vehicular assault does not mean that you will be convicted as there are many ways to challenge such a charge. Thus, if you have been arrested for aggravated vehicular assault 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 the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with misdemeanors and felonies such as assault in the first degree, assault in the second degree, menacing, reckless endangerment, stalking, rape, and child endangerment. 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: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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