New York Penal Law § 120.04 – Vehicular Assault in the First Degree

Vehicular Assault in the First Degree is a crime that harshly punishes certain conduct that causes another person to suffer serious bodily injury caused by impaired driving. Vehicular Assault in the First Degree is more serious than Vehicular Assault in the Second Degree but less serious than Aggravated Vehicular Assault. Vehicular Assault in the First Degree is a Class D felony.

Before a judge or jury can convict anyone of Vehicular Assault in the First Degree, the government must prove each element of the offense beyond a reasonable doubt. The elements of Vehicular Assault in the First Degree are:

1. The defendant committed Vehicular Assault in the Second Degree; and
2. One or more of the following apply:
   1. The defendant’s blood-alcohol content was .18 or more;
   2. The defendant knew his license was suspended or revoked based on a previous DUI conviction or refusal;
   3. The defendant has a DUI conviction within the past 10 years;
   4. The defendant’s conduct resulted in injury to more than one person;
   5. The defendant has a prior Vehicular Assault or Vehicular Homicide conviction;
   6. The defendant’s conduct resulted in a passenger under 15 experiencing serious physical injury;
   7. A defendant who is 16 or older causes serious injury to someone 15 or younger while operating a boat under the influence of drugs or alcohol.

Under § 120.04, “serious physical injury” involves an injury that creates a substantial risk of death or causes disfigurement or long-term impairment of a bodily function or organ.

Some of the most common examples of vehicular assault in the First Degree include the following:

• Causing a DUI accident that serious injures another person while your BAC is .18 or more;
• Causing a DUI accident resulting in serious injury to another person while your license is suspended;
• Causing an accident while under the influence of drugs or alcohol, resulting in two passengers in your vehicle suffering serious physical injury;
• Causing a DUI accident that seriously injured a child 15 years old or younger.

In many vehicular assault cases, the government will bring several related charges. This can significantly increase your exposure. Some of the offenses prosecutors most frequently bring along with Vehicular Assault in the First Degree include the following:

• Vehicular Assault in the Second Degree – N.Y. Penal Law § 120.03
• Aggravated Vehicular Assault – N.Y. Penal Law § 120.04-a
• Driving While Ability Impaired By Drugs – N.Y. Vehicle & Traffic Law § 1192(4)
• Driving While Intoxicated – N.Y. Vehicle & Traffic Law § 1192(3)
• Driving While Intoxicated Per Se – N.Y. Vehicle & Traffic Law § 1192(2)
• Aggravated Driving While Intoxicated Per Se – N.Y. Vehicle & Traffic Law § 1192(2-a)
• Driving While Ability Impaired By Alcohol – N.Y. Vehicle & Traffic Law § 1192(1)

There are many defenses to Vehicular Assault in the First Degree that can either reduce your sentencing exposure or result in the prosecution withdrawing the case against you or the jury returning a “not guilty” verdict. Many of these defenses attack the underlying charges of Vehicular Assault in the Second Degree, such as:

• Drugs or alcohol did not impact your ability to drive, assuming there was no chemical test evidence;
• You were not “operating” the vehicle;
• Officers violated your rights when investigating the accident;
• The alleged victim did not experience “serious physical injury”; and
• Law enforcement made an error in taking or processing your blood or breath sample.

Vehicular Assault in the First Degree is a Class D felony. In New York, a Class E felony offense carries a maximum sentence of up to seven years of incarceration as well as a fine of up to $5,000. These punishments are in addition to any penalties you face as a result of the underlying DUI conviction. However, you cannot be convicted of Vehicular Assault in the First and Second Degree.

If you were recently arrested for Vehicular Assault in the 1st Degree, the experienced criminal defense attorneys at Tilem & Associates are here to help. At Tilem & Associates, P.C., our team of DUI defense lawyers has extensive, hands-on experience defending clients charged with all types of impaired driving offenses, including DUI Accidents and Vehicular Assault. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.