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

If you are intoxicated by drugs or alcohol and you injure someone while you are driving a vehicle, you have committed vehicular assault. The New York Penal Code 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. However, it is still a felony. Under New York Penal Code § 120.03 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

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.

A man collides with another car at an intersection. As a result the driver of the other vehicle was seriously injured, requiring hours of surgery and extensive rehabilitation. There is conflicting eyewitness testimony as to which car ran through a red light. However, a chemical test revealed that the man's BAC's level was .09. The man may be prosecuted for vehicular assault in the second degree. However, if it is determined that the other driver caused the accident then it is possible that the man will be prosecuted for driving while intoxicated, but not for vehicular assault.

1. Vehicular assault in the first degree: New York Penal Code § 120.04
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 indisputable. You can challenge the accuracy of the chemical test that was used by the prosecutor as evidence that you were intoxicated.

In addition, if the victim's injuries were not serious, you may have 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.

Because vehicular assault in the second degree is a Class E felony the maximum possible sentence is 4 years in prison. 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. Regardless of whether or not you serve any time in prison a consequence of being convicted of vehicular assault in the second degree is that your driving privileges will be suspended or revoked.

A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and either:

1. operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle, vessel or public vessel in a manner that causes such serious physical injury to such other person, or

2. operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, and such flammable gas, radioactive materials or explosives is the cause of such serious physical injury, and as a result of such impairment by the use of alcohol, operates such motor vehicle in a manner that causes such serious physical injury to such other person, or

3. operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of § 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in paragraph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law and in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such snowmobile or all terrain vehicle in a manner that causes such serious physical injury to such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug, 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, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such serious physical injury, as required by this section.

When you drive while you are intoxicated and seriously injure someone it is far from just a car accident that will be handled by your insurance company or by a civil court action. It is 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 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: