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July 20, 2010

Aggravated Vehicular Assault- Driving While Intoxicated (DWI/DUI)

By Michael H. Joseph

New York criminal defense lawyers who regularly handle DWI cases know that accidents are a common consequence of driving while intoxicated. An accident involving an injury dramatically increases the exposure of that a criminal defendant in New York faces.

In 2007, a new law was enacted in New York to toughen the punishment of New York criminal defendants who injure others. The New York Legislature created the new crime of aggravated vehicular assault. Penal Law § 120.04-a is similar to vehicular assault in the first degree except that it requires the People to prove that the defendant drove recklessly.

Aggravated vehicular assault is a class C felony punishable by an indeterminate prison term of up to 5 to 15 years 1. In addition, another provision was added to article 125 of the Penal Law enacting the offense of aggravated vehicular homicide, a class B violent felony punishable by a maximum determinate sentence of 25 years’ imprisonment. The purpose of this new law was to prevent drunk drivers who maimed or killed another person could rely on his intoxication to mitigate criminal responsibility.

In a recent decision interpreting this law, the Court of appeal recognized that a defendant’s getting intoxicated to be sufficient to establish the reckless disregard elements, must be close in time to the act. In other words, the people must prove that the reckless state of mind occurred close in time to the behavior which caused the injury.

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