Vehicular Assault in New York: First Degree, Second Degree & Penalties

Assault is a familiar term, used to describe physical aggression by one person against another. It can include a punch in the nose, a slap in the face, a knife in the back or a bullet to the head. If someone hits another person with a vehicle or a boat, it can be vehicular assault. In New York, there are three different types of vehicular assault: second-degree, first-degree and aggravated assault. Each is a separate crime with its own elements and penalties.

All three types of vehicular assault in New York involve hurting another person while driving under the influence of drugs or alcohol. However, the lesser offenses involve a blood alcohol concentration (BAC) of 0.08, while the more serious charges involve a BAC of 0.18 percent

While vehicular assault in New York is a crime that involves driving while under the influence of alcohol or drugs, it is not found in the Vehicle & Traffic Code with crimes like driving while intoxicated (DWI) or driving while ability impaired (DWAI.) That is because all types of vehicular assault are much more serious than the DWI offenses. Even the least serious – second-degree vehicular assault – is a Class E felony in New York.

Instead, the different types of vehicular assault are described in the New York Penal Code at Sections 120.03 (second-degree assault), 120.04 (first-degree assault) and 120.04A (aggravated assault). Each of these crimes carries serious penalties, including years in state prison, fines and loss of driving privileges.

​Read More:​ Aggravated DWI in New York: How Does It Differ From a DWI?

All three types of vehicular assault in New York involve hurting another person while driving under the influence of drugs or alcohol. However, the lesser offenses involve a blood alcohol concentration (BAC) of 0.08, while the more serious charges involve a BAC of 0.18 percent. Driving in this context means driving a car or other motor vehicle, a snow machine or ATV, or operating a boat.

Note that the criminal charge is vehicular assault if the victim suffers severe injuries, and vehicular manslaughter if the victim is killed as a result of the incident. If there are minor injuries, the driver will be charged only with a DWI or BWI offense.

​Read More:​ Felony DWI in New York State: What to Expect, Laws & Penalties

Second-degree vehicular assault may be the least grave of the three types of vehicular assault in New York, but it is still a felony, the most serious type of crime. Second-degree vehicular assault occurs when a driver injures another person while driving under the influence of alcohol, drugs or some combination.

For a charge of second-degree vehicular assault, the driver must have been:

1. operating a motor vehicle, vessel, public vessel, snowmobile or ATV,
   
2. while under the influence of alcohol or drugs as prohibited in the Vehicle & Traffic Laws and, as a result,
   
3. caused serious physical injuries to another individual.
   

What are serious physical injuries? The injured person must have been hurt to such an extent that the injuries “create a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted loss or impairment of the function of any organ.” Less serious injuries are not sufficient for a vehicular assault charge. The court is likely to ask questions like:

• Did the victim lose consciousness?
• Was the victim in extreme pain?
• Was there damage to any of the victim's vital organs?
• Did the victim undergo surgery?
  

This crime is a Class E felony in New York. Potential penalties for a conviction of second-degree vehicular assault include up to four years in state prison, five years on probation, plus fines of at least $1,000 up to $5,000. The driver's license would also be revoked.

As with murder, first-degree vehicular assault is more serious than second-degree vehicular assault. This crime looks a lot like second-degree vehicular assault in that it involves operating a motor vehicle or a boat while under the influence of drugs or alcohol. However, in order for an action to qualify as first-degree vehicular assault, at least one of these factors must also be true:

• The driver has a BAC of at least 0.18 percent.
  
• The driver has a suspended license in New York or in another state based on a driving under the influence (DUI) incident.
  
• The driver has been convicted of a DWI offense in New York or a similar crime in another state in the last 10 years.
  
• The driver caused serious injuries to more than one person in this incident.
  
• The driver has previously been convicted of vehicular assault.
• A child who is no older than 15 years was a passenger in the motor vehicle at the time of the incident and was seriously injured as a result.

First-degree vehicular assault is a Class D felony in New York. Penalties for this crime can include a prison sentence of up to seven years, four years of probation, a fine of up to $10,000, and other fees and restitution to the victim of up to $15,000, or even greater in some cases.

​Read More:​ What is Leandra's Law? Penalties for a DUI/DWI in New York

First-degree vehicular assault cases look very much like second-degree vehicular assault cases, except a few additional requirements are elements of the crime. The same is true of aggravated vehicular assault. This, the most serious vehicular assault charge in New York, requires the same elements as first-degree vehicular assault, including driving with a BAC of 0.18 percent or higher, but the driver must also be guilty of the misdemeanor of reckless driving.

Reckless driving is defined in New York Vehicle & Traffic Law Section 1212. To be convicted of this offense, a person must drive "in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." The victim must suffer the same type of serious injury as is required for other vehicular assault cases.

Aggravated vehicular assault is a Class C felony. Anyone convicted of this crime can serve a jail term of up to 15 years in state prison, probation of five years, and the same fines, fees and restitution authorized for first-degree aggravated vehicular assault.

​Read More:​ Vehicular Manslaughter in New York State: DWI Laws & Penalties