NY Penal Law § 120.04-a: Aggravated Vehicular Assault

Under the New York Penal Code 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. Under New York Penal Code § 120.04-a you will face a charge of aggravated vehicular assault if you drive recklessly while intoxicated, cause serious physical injury to another person, 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.

It is a class C felony. 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 § 1212 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.

A man stops at a bar to unwind after a long day at work. He has a couple of beers. Although he feels a little lightheaded, he decides to drive home. He approaches a stop sign and looks both ways. Instead of stopping he slows down a little, but then accelerates. A woman steps into the crosswalk in front of the man's car and he hits her. She is injured and is rushed to the hospital. The police smell alcohol on the man's breath. Because he performs poorly on the field sobriety test he is arrested. If a chemical test shows that he has a BAC of .08 or more, he could be prosecuted for aggravated vehicular assault.

1. Vehicular assault in the first degree: New York Penal Code § 120.04
2. Vehicular assault in the second degree: New York Penal Code § 120.03
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.

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.

Because aggravated vehicular assault is a class C felony the maximum possible sentence is 15 years in prison, plus a fine of up to $5,000. In addition your driving privileges will be suspended or revoked.

A person is guilty of aggravated vehicular assault when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular assault in the second degree as defined in § 120.03 of this article, and either:

1. commits such crimes 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 crimes 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 this 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.

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. 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 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.