Vehicular Assault Lawyer NYC

What is Vehicular Assault in NYC?

Charges of “Assault” in New York are often called battery in other states. There are a few specific categories of Assault charges in New York. One such category of alleged assaults involves vehicles; the crime is called Vehicular Assault. There are 3 degrees of Vehicular Assault charges in New York: Vehicular Assault in the Second Degree, Vehicular Assault in the First Degree and Aggravated Vehicular Assault. All New York Vehicular Assault charges are categorized as a felony.

New York Vehicular Assault charges involve several types of allegations. First, the operation of a vehicle. Second, Driving While Intoxicated (DWI) or Driving While Ability Impaired By Drugs (DWI Drugs). Third, a Serious Physical Injury to another person. Fourth, some additional factor for the higher degree of Vehicular Assault such also allegedly committing the crime of Reckless Driving, New York Vehicle and Traffic Law Section 1212.

Degrees of New York Vehicular Assault Charges

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

Vehicles in New York Vehicular Assault Charges

New York Vehicular Assault charges involve specific categories of vehicles: motor vehicles, all-terrain vehicles (ATVs), snowmobiles and certain boats, which the law refers to as vessels or public vessels.

The term motor vehicle is defined in New York Vehicle and Traffic Law Section 125. In New York, a motor vehicle means anything that can be driven on the road that is propelled by power (except for ATVs and snowmobiles). That includes cars, trucks and motorcycles.

All-terrain vehicles or ATVs are defined in New York Vehicle and Traffic Law Section 2281(1)(a) as “any self-propelled vehicle which is manufactured for sale for operation primarily on off-highway trails or off-highway competitions and only incidentally operated on public highways providing that such vehicle does not exceed 70 inches in width or 1,000 pounds dry weight.”

Snowmobiles are defined in New York Parks, Recreation and Historic Preservation Law Section 25.03(3) as “a self-propelled vehicle equipped with a motor, originally manufactured and designed for travel on snow or ice, steered by skis or runners and supported in whole or in part by one or more skis, belts or tracked cleats.”

Finally, Vehicular Assault charges may involve two different types of boats, which the law refers to as vessels and public vessels. Both terms are defined in New York State Navigation Law Section 49-a. A vessel is defined as “every description of watercraft or other artificial contrivance propelled in whole or in part by mechanical power and, which is used or capable of being used as a means of transportation over water, and which is underway and not at anchor or made fast to the shore or ground. The term ‘vessel’ shall include a ‘public vessel.’” Vessel includes motorized boats and motorized personal watercraft devices such as a jet ski.

A public vessel is defined as “every vessel which is propelled in whole or in part by mechanical power and is used or operated for commercial purposes on the navigable waters of the state; that is either carrying passengers, carrying freight, towing, or for any other use, for which compensation is received, either directly or where provided as an accommodation, advantage, facility or privilege at any place of public accommodation, resort or amusement.” Public vessels are boats that are either public or private boats where passengers pay to board or are paid for a service. That includes such boats as ferries, cruises and tugboats.

New York Vehicular Assault Charges and DWI /DUI

The second factor in New York Vehicular Assault charges is Driving While Intoxicated or Driving While Under the Influence (DWI / DUI). There are four different categories of DWI listed in the Vehicles and Traffic Law (VTL) that could lead to Vehicular Assault charges:

1. Driving While Intoxicated per se (New York’s per se DWI law), VTL Section 1192(3), when a person’s blood alcohol concentration or BAC is .08% or above
2. Driving While Intoxicated common law (New York’s common law DWI), VTL Section 1192(2), when a person refuses a chemical test such as a breathalyzer, but police believe there is evidence of intoxication
3. Driving While Impaired By Drugs (which New York calls Driving While Ability Impaired By Drugs), VTL Section 1192(4), when police believe there is evidence of a drug
4. DWI by a combination of alcohol and drugs, VTL Section 1192(4-a)

It is important to note that a person cannot be charged with Vehicular Assault if the DWI-related charge is Driving While Ability Impaired (DWAI), under VTL Section 1192(1). In New York, DWAI is categorized as a traffic infraction and not as a crime.  While the 4 categories of DWI listed above are classified as a misdemeanor for a first offense (or a felony for a second offense or if  a person who is 15 or less is present in the vehicle), DWAI is punished as a traffic infraction in New York.

Serious Physical Injury in New York Vehicular Assault Charges

New York Assault and Vehicular Assault charge classify injuries into 2 categories: Physical Injury and Serious Physical Injury. Both terms are defined by the law and have been interpreted by Courts. Only a Serious Physical Injury can result in a Vehicular Assault charge.

If the injury alleged is merely a Physical Injury, then a person should not be charged with Vehicular Assault. However, a person could be charged with Assault in the Second Degree if a Physical Injury is caused by a vehicle. The important difference between Assault charges and Vehicular Assault Charges in New York is that Assault requires an intent to cause the physical injury that results. Vehicular Assault does not require an intent to cause the physical injury. In place of intent, a Vehicular Assault charge in New York requires DWI.

In New York, a Serious Physical Injury, which is defined under Penal Law Section 10.00(10), means: “Physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” That is a much higher degree of injury than a Physical Injury, which is defined as “impairment of physical condition or substantial pain” under Penal Law Section 10.00(9).

Thus, for a Vehicular Assault charge, a Serious Physical Injury requires “protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” In New York, lacerations, bruises and swelling would meet the definition of a Physical Injury, but not a Serious Physical Injury. Thus, a Serious Physical Injury must be for a long period and to an organ.

Vehicular Assault in the Second Degree

In New York, Vehicular Assault in the Second Degree, Penal Law Section 120.03, is a class E felony. Vehicular Assault in the Second Degree involves the alleged operation of a motor vehicle, boat, snowmobile or an all-terrain vehicle (ATV) that results in a Serious Physical Injury.

The crime of Vehicular Assault in the Second Degree is committed when a person allegedly causes Serious Physical Injury to another person, and:

• Operates a motor vehicle or boat (vessel or public vessel) while intoxicated (or DWI), impaired by drugs (DWAI Drugs) or a combination of both (DWI Alcohol and Drugs), or commercial boat with a blood alcohol content of .04% or above, and as a result, operates a motor vehicle, watercraft or commercial boat in a manner that causes a serious physical injury to another person;
• Operates a motor vehicle with a gross vehicle weight of more than 18,000 pounds that contains flammable gas, radioactive materials or explosives while Driving While Ability Impaired (DWAI) and the cargo is the cause of the serious physical injury, and as a result of the DWAI, operates the motor vehicle in a manner that causes the serious physical injury to another person; or
• Operates a snowmobile or ATV while intoxicated (or DWI) or impaired by drugs (DWAI Drugs) and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or alcohol and any drug or drugs, operates such snowmobile or ATV in a manner that causes a serious physical injury to another person

Vehicular Assault in the Second Degree in the First Degree is a class E felony, and a prison sentence is not mandatory. However, the maximum sentence for a first-time felony offender is 1 1/3 to 4 years.

Alternative sentences include a definite sentence of 1 year, 5 years probation, a split sentence of 6 months in jail and up to 5 years probation, a 3-year conditional discharge, among others. In addition, if the person is also convicted of a DWI-related offense, there are other penalties in including license revocation, fines and a mandatory ignition interlock device.

New York Vehicular Assault in the First Degree

Vehicular Assault in the First Degree, Penal Law Section 120.04, is a class D felony in New York. Vehicular Assault in the First Degree involves the alleged operation of a motor vehicle, boat, snowmobile or an all-terrain vehicle (ATV) that results in a Serious Physical Injury with additional factors.

Thus, to be charged with Vehicular Assault in the First Degree a person must commit Vehicular Assault in the Second Degree and:

• Operates a motor vehicle with a blood alcohol content of at least .18%, which is known as Aggravated DWI;
• Operates a motor vehicle with a suspended or revoked license to drive due to a DWI conviction in another state, a DWI refusal case or a DWI conviction;
• Has a previous conviction for DWI in the last 10 years in any state;
• Causes serious physical injuries to more than 1 other person;
• Have a previous Vehicular Assault-related conviction in any state; or
• Operates a motor vehicle with a child who is 15 years old or younger and causes serious physical injury to the child.

The maximum sentence for a for Vehicular Assault in the First Degree in the First Degree, which is a class D felony, is 2 1/3 to 7 years for a first-time felony offender, However, a prison sentence is not mandatory.

Some alternative sentences include a definite sentence of 1 year, a split sentence of 6 months in jail and up to 5 years probation, a 3-year conditional discharge, among others. In addition, if the person is also convicted of a DWI-related offense, there are other penalties including license revocation, fines and a mandatory ignition interlock device.

Aggravated Vehicular Assault in New York City

In New York, Aggravated Vehicular Assault in the First Degree, Penal Law Section 120.04-a, is a class C felony. Aggravated Vehicular Assault involves the alleged operation of a motor vehicle, boat, snowmobile or an all-terrain vehicle (ATV) that results in a Serious Physical Injury with additional specific allegations.

For a person to be charged with Aggravated Vehicular a person must commit Vehicular Assault in the Second Degree and commit the crime of Reckless Driving under to VTL Section 1212 and:

• Operates a motor vehicle with a blood alcohol content of at least .18%, which is known as Aggravated DWI;
• Operates a motor vehicle with a suspended or revoked license to drive due to a DWI conviction in another state, a DWI refusal case or a DWI conviction;
• Has a previous conviction for DWI in the last 10 years in any state;
• Causes serious physical injuries to more than 1 other person;
• Has a previous Vehicular Assault-related conviction in any state; or
• Operates a motor vehicle with a child who is 15 years old or younger and causes serious physical injury to the child.

Aggravated Vehicular Assault, which is a class C felony, carries a maximum sentence of 5 to 15 years for a first felony offense. Prison is not mandatory for a conviction of Aggravated Vehicular Assault.

Other possible sentences include interim probation of 1 year with a treatment program and up to 5 years probation. If the person is also convicted of a DWI offense, there are other many additional penalties including license revocation, fines and the mandatory installation of an ignition interlock device.

Hiring a New York City Vehicular Assault Lawyer

The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York Vehicular Assault attorney is crucial in achieving the best possible outcome when one is charged with a Vehicular Assault crime in NYC.

The best New York City Vehicular Assault charges lawyer is experienced, aggressive and knowledgeable in both Assault charges and DWI charges. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Assault and DWI charges, and by aggressively defending people against the same charges in NYC and the surrounding counties.

Speak With a NYC Vehicular Assault Attorney Today

If you or a loved one is charged with Vehicular Assault in New York City, we’re here to help. Contacting a Vehicular Assault lawyer early in your case is important to preserve evidence that might be destroyed.  A knowledgeable and aggressive Vehicular Assault lawyer may be able to have the charges completely dismissed based on the facts that are different in every case. In the alternative, a Vehicular Assault lawyer may be able to negotiate a favorable bargain to a non-criminal outcome or a lesser charge.

Contact The Law Firm of Andrew M. Stengel

Contact us via the live chat below, through our contact form here, or call us at  (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.

Our offices are located at 11 Broadway, Suite 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.