NY Penal Law § 120.03: Vehicular assault in the first degree

If you hit a pedestrian or another driver with a vehicle, it may be just an accident. It might also be a type of assault called vehicular assault. In other words the car, truck, or SUV that you were driving was used as a dangerous instrument to commit a crime. You would have committed vehicular assault if you injure another person with your vehicle while you are driving unlawfully. To be prosecuted under New York Penal Code § 120.03 you must have used a vehicle to cause serious physical injury to another person, while driving while intoxicated and:

• Your BAC was at least .18, or
• Within the past 10 years you were previously convicted of driving while intoxicated in New York or another state, or
• Your driving privileges had been suspended in another state because you were convicted of driving while intoxicated, or
• Your driving privileges had been suspended in another state because you refused to take a test to determine if you were driving while intoxicated, or
• You caused serious physical injury to more than one person, or
• You had been previously convicted of vehicular manslaughter, or
• A child who is less than 15 years old was in the car with you and was seriously injured.

A woman hangs out at a bar until the early hours of the morning and then decides to drive home. Her friends offer to drive her because they believe that the woman is intoxicated. They also remind her that she already has been convicted of driving while intoxicated once before. The woman assures her friends that she is not intoxicated. The woman ends up driving the wrong way down a one-way street and collides with another vehicle. Both the driver and the passenger in the other vehicle are seriously injured. If the woman's BAC shows that she is legally intoxicated, the woman could be prosecuted for vehicular assault in the first degree because of her previous conviction was within the prior 10 years, or if her BAC is .18 or higher.

1. Vehicular assault in the second degree: New York Penal Code § 120.03
2. Aggravated vehicular assault: New York Penal Code § 120.04-A
3. Driving while intoxicated: New York Vehicle and Traffic Law § 1192.3
4. Driving while ability impaired by drugs: New York Vehicle and Traffic Law § 1192.4

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. Another possible defense would be the lack of seriousness of the victim's injury. New York courts will look closely at the medical evidence to determine whether or not the victim suffered a serious injury as defined in the New York Penal Code.

Because vehicular assault in the first degree is a Class D felony, the maximum possible sentence is 7 years in prison and a fine of $5,000. You may also be ordered to pay restitution to anyone who was injured in the accident or suffered property loss. Furthermore, your driving privileges will be suspended or revoked.

A person is guilty of vehicular assault in the first degree when he or she commits the crime of vehicular assault in the second degree as defined in § 120.03 of this article, and either:

1. commits such crime while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;

2. commits such crime while knowing or having reason to know that: (a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and

   such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or

   his or her privilege of operating a motor vehicle in the state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;

3. has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;

4. causes serious physical injury to more than one other person;

5. has previously been convicted of violating any provision of this article or article one hundred twenty-five of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty-five of this title; or

6. commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes serious physical injury to such child. If it is established that the person operating such motor vehicle caused such serious physical injury or injuries while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such serious physical injury or injuries, as required by this section and § 120.03 of this article.

Being arrested for vehicular assault in the first degree is serious. 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, second degree, aggravated vehicular assault or any assault charge, it is important to immediately contact someone who understands the New York criminal system. The staff at Stephen Bilkis and Associates has years of experience successfully defending clients in New York criminal courts who have been charged with vehicular assault, as well as other types of assault. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations: