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Understanding Vehicular Assault under New York Penal Law 120.03 and 120.04

Posted By Galluzzo & Arnone LLP || 28-Oct-2011

Vehicular assault charges are usually added to felony or misdemeanor DWI complaints where there has been an injury to someone other than the driver of the vehicle as a result of an alcohol- or drug-related accident. For example, in People v. Mojica, 62 A.D.3d 100, the defendant allegedly “drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer, Richard Poluzzi. Officer Poluzzi, who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007.”

The elements of the basic charge, PL 120.03, are as follows:

§ 120.03 Vehicular assault in the second degree.

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 section 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.

Vehicular assault in the second degree is a class E felony.

The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5)); or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).

One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element. An experienced New York DWI attorney would seemingly make that a top priority. Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.

If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with top new york criminal defense lawyers before proceeding.

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