New York law is very tough on those caught driving while under the influence of alcohol or drugs (DWI). Even a first DWI can get the driver jail time. But if a person drives while intoxicated in New York and the impairment causes the death of another human being, it is a much more serious crime than a simple DWI. The prosecutor is likely to charge the driver with vehicular manslaughter. Depending on the circumstances, the driver can be charged with first-degree, second-degree or aggravated vehicular manslaughter, with a maximum penalty of up to 25 years in state prison.
DWI Laws in New York
In New York, a person can be charged with driving while intoxicated if they drove while their ability was impaired by alcohol or drugs, or with a blood alcohol content (BAC) of 0.08 percent or higher. While a prosecutor can prove that someone is impaired through the testimony of police and witnesses as to the driver's comportment behind the wheel and during the traffic stop, it is much easier to prove that the driver exceeded the permissible BAC level. This simply requires proof that the person took a chemical test to establish their BAC, and that the results showed a BAC of 0.08 percent or higher while behind the wheel.
A first-time DWI is a misdemeanor, and although the driver could get a jail term as part of their sentence, this is not likely. Rather, they will probably have their license suspended for six months and be ordered to pay a fine. All this changes, however, if that intoxicated driver kills someone as a result of alcohol or drug use. The charge in that case would be vehicular manslaughter, either second degree, first degree or aggravated.
All three crimes are felonies in New York and carry penalties that include time in state prison. Each of the types of vehicular manslaughter has slightly different proof requirements and carries different maximum penalties.
Second-Degree Vehicular Manslaughter
The least severe form of vehicular manslaughter charge is second degree. This charge is defined in the New York Penal Code section 125.12. A driver can be convicted of second-degree vehicular manslaughter if they drove while intoxicated or with a BAC of 0.08 percent or higher and killed another person.
A person can also be charged with vehicle manslaughter in the second degree in two other circumstances: if they operate a snowmobile or all-terrain vehicle while intoxicated and kill someone, or if they drive a large vehicle containing illegal amounts of flammable gas, radioactive materials or explosives while intoxicated, and the material causes the death of someone.
Vehicular manslaughter in the second degree is classified as a class D felony in New York, which carries a maximum prison sentence of seven years. The driver can also be fined up to $5,000 and will have driving privileges suspended or revoked.
First-Degree Vehicular Manslaughter
First-degree vehicular manslaughter is a more serious offense than the second-degree charge. It is found in the New York Penal Code section 125.14.
As is the case with second-degree vehicular manslaughter, a first-degree vehicular manslaughter charge can be brought against a driver who kills someone while driving under the influence of drugs or while intoxicated with alcohol. It can also be brought if the driver causing the death had an elevated BAC. However, to merit the higher charge, the driver must have had a BAC of 0.18 percent, rather than only 0.08 percent, or one of these circumstances must apply to the case:
- The driver lost their license in another state because of a DWI.
- The driver had their driving privileges suspended in another state because they refused to take a chemical test to determine BAC.
- The driver got a DWI either in New York or in another state within the past 10 years.
- The driver caused the death of more than one person in the accident.
- The driver has a prior vehicular manslaughter conviction.
- A child under the age of 15 was a passenger in the driver's car and was killed.
Vehicular manslaughter in the first degree is a Class C felony in New York. The maximum sentence the judge can impose is 15 years in state prison. The maximum fine is the same as for second-degree vehicular manslaughter, up to $5,000. In addition, someone convicted of this crime will have their driving privileges suspended or revoked.
Read More: What Is the New York "Per Se" DWI Law?
Aggravated Vehicular Manslaughter
The most serious type of vehicular manslaughter charge in New York is called aggravated vehicular manslaughter. It is set out in the New York Penal Code section 125.14.
For an offense to qualify as aggravated vehicular manslaughter, the driver must meet the same criteria for first-degree manslaughter. That is, the driver who kills someone must either have had a BAC of 0.18 percent; lost their driving privileges in another state for either a DWI or refusal to take a chemical test; been convicted of a DWI within the past 10 years; had a prior vehicular manslaughter conviction; caused the death of more than one person in the current accident; or caused the death of a child who was a passenger in their car. If one of these circumstances apply, the crime can be charged as aggravated vehicular manslaughter if the driver was also guilty of reckless driving.
Reckless driving is a crime in and of itself, described in New York Vehicle & Traffic Code section 1212. It is the crime of driving "in a manner that unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." It is a misdemeanor in New York. However, if a person is driving recklessly, is intoxicated and kills someone, they can be charged with aggravated vehicular manslaughter, a Class B felony in New York that carries a maximum term in state prison of 25 years.
Requirement of Causation
In any charge of vehicular manslaughter, the driver's intoxication must have caused the death of the other person. If this is not the case, the driver may be guilty of driving while intoxicated or driving under the influence of drugs, but they will not be guilty of vehicular manslaughter in New York.
Causation may be simple to establish in a vehicle accident. For example, if a drunk driver heads the wrong way up a freeway exit ramp and collides head-on with a car properly leaving the freeway on that ramp, the role of intoxication in the crash is clear. But in other cases, it may be less clear. If two cars on a busy freeway sideswipe one another and one flips and rolls, it might be difficult for the prosecutor to prove that the surviving driver's use of alcohol or drugs was the primary cause of the accident.
If a driver can show that the death was not related to the intoxication, they cannot be convicted of vehicular manslaughter. For example, if the second car jumps a red light and careers into an intersection, hitting the intoxicated driver's vehicle, the accident was not likely to be related to the driver's alcohol consumption.
Read More: What Happens at a Probable Cause Hearing?
- Nolo: New York DWI Law
- FindLaw: Penal Code 125.13
- Law Office of Mark Seisel: DWI Blog
- NYS Criminal Laws: Vehicle & Traffic 1192
- New York DMV: Penalties for Alcohol or Drug-related Violations
- FindLaw: New York Penal Code 125.12
- Find Law: New York Penal Code 125.14
- Law Offices of Stephen Bilkis: New York Penal Code 125.13
- Law Offices of Stephen Bilkis: New York Penal Code 125.12
- NYS Criminal Laws: Vehicle & Traffic 1212
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.