New York Vehicular Assault charges involve causing a serious physical injury to another by means of a motor vehicle. There are three different New York Vehicular Assault charges. Specifically, they are:

  • Aggravated Vehicular Assault,
  • Vehicular Assault in the First Degree,
  • Vehicular Assault in the Second Degree.

Aggravated Vehicular Assault is the most serious of these charges. Vehicular Assault in the Second Degree is the least serious.

New York Vehicular Assault in the Second Degree

New York Vehicular Assault in the Second Degree is codified in Penal Law Section 120.03. Under Penal Law Section 120.03, a person is guilty of vehicular assault when s/he causes serious physical injury to another person, AND:

  1. Operates a motor vehicle while under the influence of alcohol or drugs, or a combination of alcohol and drugs (Note: a violation of subdivision of two, three, four or four-a of Section 1192 is required), or operate a vessel in an intoxicated condition or impairment by use of drugs and causes serious physical injury as a result of such impairment;
  2. Operates a motor vehicle with gross weight of more than 18,000 pounds which contains: (1) Flammable gas, (2) Radioactive materials, OR (3) Explosives and such material is the cause of such serious physical injury, and results from impairment by the use of alcohol,
  3. Operates a snowmobile, or an all-terrain vehicle while under the influence of alcohol, drugs or a combination of alcohol and drugs and as a result of such intoxication or impairment in a manner that causes such serious physical injury to such other person.

Rebuttable Presumption to New York Vehicular Assault in the Second Degree Charges

The prosecutor does not need to prove that as a result of the intoxication or alcohol, or by the combined influence of alcohol or drug(s), the person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such serious physical injury. Rather, there is a legal presumption under which it is presumed that the serious physical injury was caused by the intoxication or impairment. However, the presumption is rebuttable. That means, that the defense is allowed to present evidence to disprove that legal presumption.

Sentencing and Penalties for New York Vehicular Assault in the Second Degree

Under New York Law, Vehicular Assault in the Second Degree is a Class “E” Non-Violent Felony. As such, this charge is punishable by:

  • An Indeterminate Sentence up to 1 1/3 to 4 years in prison;
  • A determinate sentence up to 1 year in jail;
  • A split sentence (up to 6 months in jail, rest of the time on probation);
  • Probation;
  • A conditional discharge (with conditions imposed by the sentencing court such as community service, or driver improvement class);
  • An unconditional discharge (no conditions imposed by the sentencing court).

New York Vehicular Assault in the First Degree

Vehicular Assault in the First Degree is codified in New York Penal Law Section 120.04. Under New York Law, Vehicular Assault in the First Degree requires that the individual commit Vehicular Assault in the Second Degree, as well as the presence of an additional, aggravating factor. These additional factors are:

  1. Commission of the crime, while operating a motor vehicle and having a blood alcohol content of .18 or above;
  2. Commission of the crime while knowing or having reason to know that his or her license or privilege to obtain a license is suspended or revoked and such suspension or revocation is based on a conviction in another state for violation of Driving While Intoxicated, or Driving While Under the Influence of Drugs, or because of a refusal to submit to a chemical breath test;
  3. Previous conviction for violating any of the provisions in Section 1192 of New York Vehicle and Traffic Law, or in any other state or jurisdiction, which would constitute a violation of NY VTL Section 1192;
  4. Causes serious physical injury to more than one person;
  5. Previous conviction of violating any provision of Article 120 or Article 125 of the New York Penal Law, or a conviction in any other state or jurisdiction which, if committed in this state, would constitute a violation of Article 120 or Article 125 of the New York Penal Law ; OR
  6. Commits this crime while operating a motor vehicle while a child who is 15 years of age or less is a passenger in such motor vehicle and causes serious physical injury such child.

Sentencing and Penalties for New York Vehicular Assault in the First Degree

Under New York Law, Vehicular Assault in the First Degree is a Class “D” Non-Violent Felony. This New York Vehicular Assault charge is punishable by:

  • Indeterminate sentence up to 2 1/3 years to 7 years in prison;
  • Determinate sentence of 1 year in jail;
  • Probation (only if the judge finds mitigating circumstances).

New York Aggravated Vehicular Assault

The most serious of New York Vehicular Assault charges is Aggravated Vehicular Assault. This charge is codified in New York Penal Law Section 120.04-a. Under Penal Law Section 120.04-a, a person is guilty of Aggravated Vehicular Assault when s/he commits the crime of Reckless Driving in violation of Vehicle and Traffic Law Section 1212.

  1. Commission of the crime, while operating a motor vehicle and having a blood alcohol content of .18 or above;
  2. Commission of the crime while knowing or having reason to know that his or her license or privilege to obtain a license is suspended or revoked and such suspension or revocation is based on a conviction in another state for violation of Driving While Intoxicated, or Driving While Under the Influence of Drugs, or because of a refusal to submit to a chemical breath test;
  3. Previous conviction for violating any of the provisions in Section 1192 of New York Vehicle and Traffic Law, or in any other state or jurisdiction, which would constitute a violation of NY VTL Section 1192;
  4. Causes serious physical injury to more than one person;
  5. Previous conviction of violating any provision of Article 120 or Article 125 of the New York Penal Law, or a conviction in any other state or jurisdiction which, if committed in this state, would constitute a violation of Article 120 or Article 125 of the New York Penal Law ; OR
  6. Commits this crime while operating a motor vehicle while a child who is 15 years of age or less is a passenger in such motor vehicle and causes serious physical injury such child.

New York’s Vehicular Assault in the First Degree charge is nearly identical to the New York Aggravated Vehicular Assault charge. The difference is that Vehicular Assault in the First Degree requires the commission of Vehicular Assault in the Second Degree as the underlying charge, while Aggravated Vehicular Assault charge requires the commission of Reckless Driving.

Sentencing and Penalties for New York Aggravated Vehicular Assault

Under New York Law, Aggravated Vehicular Assault is a Class “C” Non-Violent Felony. Therefore, this charge is punishable by:

  • Indeterminate sentence up to 5 to 15 years in prison,
  • Determinate sentence of 1 – 2 years in jail,
  • Probation (if there are mitigating circumstances).

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