Queens Vehicular Assault in the Second Degree

N.Y. Pen. Law § 120.03

It is illegal to drive a car or other vehicle why you are intoxicated by alcohol or impaired by drugs. If you do so and you injure someone you will have to deal with more than a traffic ticket and increased insurance premiums. You may face a criminal charge of vehicular assault. The law views the situation as similar to other types of assault such as attacking someone with a gun, knife or other dangerous object. New York criminal 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 not only will you will lose your driving privileges, you may also end up in prison. If you face a charge of vehicular assault in the second degree it is important that you immediately contact an experienced New York Vehicular Assault in the Second Degree Lawyer who will explain to you the legal process and who will vigorously defend you from the beginning of your case until it is resolved.

Requirements for a Vehicular Assault in the Second Degree Charge

Vehicular assault in the second degree involves causing injury to another person as a result of driving while drunk. The law states that 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 least .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.

Arrest and Arraignment

If you are accused of vehicular assault in the second degree you will be arrested and taken into custody. You will be eventually taken to Central Booking. You will remain there for several hours until your case is ready for arraignment. At your arraignment you will go before a judge and the prosecutor will announce the charges against you. While you may be under the impression that you are going to be charged with vehicular assault in the second degree the prosecutor may decide to charge you with additional crimes. The judge will then make a decision on bail.

Following your arraignment there may be several meetings and hearings prior to the trial. If you are released on your own recognizance, or if you are released on bail, it is of utmost importance for you to return to court for each of your hearings and for the trial. If you fail to show up the judge will issue a warrant for your arrest.

Before your case goes to trial, or before a verdict is reached in your case at trial, you may reach a plea agreement with the prosecutor which may involve you pleading guilty to a charge that is less serious than vehicular assault in the second degree. The incentive for the prosecutor to offer you a deal is to resolve a case without the time and expense of going to trial. Or, the prosecutor may be unsure as to whether or not he or she will be able to win a conviction if the case goes to trial. Whatever the reason, if you accept a plea agreement, the prosecutor will be able to close the case and declare a victory. A plea deal may be attractive to you as you will not face the cost of an expensive trial and you do not risk a more severe sentence should you be convicted of the original charge of vehicular assault in the second degree. However, if you do agree to a plea, you will still be convicted of a crime.

Defenses

Determination of Intoxication. When law enforcement performs a chemical test to 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. 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 physical injury" or just a "physical 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, and whether the victim had to undergo surgery.

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. If you have no prior convictions, the judge may sentence you to probation. If you have a prior felony conviction within the prior 10 years the court will sentence you to at least 1 1/2 to 3 years. If you have 2 felony convictions you will be classified as a persistent felony offender. 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 as part of your sentence the judge may order you to serve a term of probation. The mandatory term for a felony offense is 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. Examples of those rules include that you must not leave the State of New York without permission, 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, must refrain from consuming alcohol or illegal drugs, you must complete an alcohol or substance abuse program and that you must regularly report to your Probation Officer. In addition, if you were ordered to pay restitution to your victim, keeping up with those payments may be a condition of your probation.

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 will listen to evidence and determine if you did indeed violate the terms of your probation. If the violation is minor the judge may choose not to violate you. On the other hand if the violation is significant the judge could revoke your probation and resentence you to jail.

Fines, Fees and Restitution

Being convicted of vehicular assault in the second 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 as well as probation supervision fees of $30 per month.

Another financial consequence is that you will have to pay restitution to your victim. 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 or to cover the cost of the property destroyed or damaged as a result of the assault. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

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

Regardless of your sentence, once you serve your prison or probation term you will have to live with having a criminal record which will negatively impact several aspects of your life. With a simple background check a potential employer or a college admissions officer will quickly learn that you were convicted of vehicular assault. As a result, many lose many opportunities.

The consequences of being convicted of vehicular assault in the second degree are quite harsh. You could go to prison. You could be placed on probation. You will face substantial fines, fees, and restitution. You will also lose your driving privileges for quite some time. 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 vehicular assault as well as DWI and 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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