Vehicular Assault

Vehicular assault is the name given to series of penal law crimes first published in 1983 by the New York State Legislature expressly to punish drivers who seriously injure others while they are impaired by either alcohol or drugs.

These charges are brought by the District Attorney’s Office in addition to Driving While Intoxicated related (and other) charges and carry stiffer penalties including jail and long term loss of a driver’s license.

In order to be guilty of vehicular assault a person must cause serious physical injury to the other driver or pedestrian whom he strikes.

Serious physical injury is defined under the New York State Penal Law as injury which causes substantial risk of death or which causes death or a serious and protracted disfigurement, protracted loss or impairment of the function of any body organ.

Oftentimes, in a well meaning effort to protect the victim of a DWI accident or in a response to these types of cases frequently appearing in newspapers, the Assistant District Attorney or police will over charge the defendant.

In these instances the ADA will charge the defendant with vehicular assault, or worse, even if the victim’s crimes do not meet the very difficult to meet threshold standards of serious physical injury.

Serious injuries which might at first blush, or in everyday experience, appear to be “serious physical injuries” such as serious cuts, scrapes and even broken bones will not meet the high threshold for serious physical injury under the vehicular assault laws.

In order for the threshold of serious physical injury to be met, and therefore for a crime of vehicular assault to be properly charged, the victim must suffer a long lasting or permanent loss of body function, organ or disfigurement.

A driver will be charged with the Class E Felony of second degree vehicular assault in cases in which he has:

  1. Caused serious physical injury; and
  2. Drove while intoxicated; or
  3. Operated a vehicle containing flammable, radioactive or explosive materials weighing greater than 18,000 pounds; or
  4. Operated an ATV or snowmobile while intoxicated.

A person will be charged with the Class D Felony of first degree vehicular assault when he commits the crime of second degree vehicular assault and:

  1. He has a BAC of greater than .18%; or
  2. He has reason to know he has a suspended or revoked license; or
  3. He has a prior DWI related crime in the last ten years; or
  4. He causes physical injury to more than one person.

Although DWI related crimes are not typically chargeable for driving on “private roads”, that limitation does not apply to vehicular assault related crimes.

The New York State Legislature specifically exempted vehicular assault crimes from this requirement which is typically used as a defense in driving under the influence related cases and trials.

Accordingly you can be charged with vehicular assault and related vehicular crimes even in cases where the injury occurs to a person while you are operating on a private road driveway or parking lot.

The vehicular assault related crimes are strict liability in nature.

This means that a district attorney no longer has to prove intent or knowledge on the part of the driver who injures or kills someone else.

However, it is important to note that even if a defendant’s conduct would otherwise be punishable for vehicular assault (e.g. for injuring someone while impaired by alcohol etc.) the People of the State of New York must still prove that the defendant’s actions were a “direct cause” of the serious physical injury or death which the victim suffered.

It is not enough that the state prove that the defendant was intoxicated. The prosecutor must also prove that the defendant’s intoxication was of such a level that it caused the defendant to operate his car in a reckless manner.

If you have been charged with vehicular assault, please contact Stewart A. McMillan immediately at (914) 358-4326 or on his 24 hour cell phone at (917) 538-5016 or e-mail him at

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