Vehicular Assault & Aggravated Vehicular Assault Defense

A DWI Crash With an Injury Is a Felony Case

Vehicular assault is what a DWI charge becomes when someone other than the driver is seriously hurt. The arrest usually happens the same night as any DWI arrest, in a town or village court, but the case is a felony and it is prosecuted in county court: Saratoga County Court in Ballston Spa, Warren County Court in Lake George, Montgomery County Court in Fonda, Fulton County Court in Johnstown, or Washington County Court in Fort Edward. The exposure starts at four years in state prison and, for aggravated vehicular assault, reaches fifteen.

Attorney Andrew DeLuca defends vehicular assault cases across the Capital Region. Before opening his own office in 2010, he spent five years trying Montgomery County’s felony cases as an Assistant Public Defender, and these cases are won or lost on the same three questions every time: whether the injury meets the legal definition, whether the State can prove the intoxication caused the crash, and whether the stop, arrest, and blood or breath evidence hold up.

To talk to Andrew directly, at any time call 518-245-9109

How Sentencing Actually Works for a First Felony

None of the three vehicular assault crimes is a violent felony under Penal Law 70.02, so a first felony offender is sentenced under the indeterminate rules in Penal Law 70.00. A prison sentence is stated as a range: the maximum is capped at 4, 7, or 15 years by felony class, and the minimum is between one year and one-third of that maximum. For the class E and D charges the judge can instead impose a definite local jail sentence of a year or less. For all three, probation of three, four, or five years is legally available, as is a split sentence of up to six months in jail followed by probation. The felony fine is capped at $5,000.

Where a case lands in that range depends on the injury, the BAC, the driving, the record, and the work done before sentencing. A defendant with no record, a contested injury, and documented treatment is in a very different position from one with a prior DWI and a .20 reading, and the plea negotiations in county court reflect that. If the injured person dies, the charge becomes vehicular manslaughter (Penal Law 125.12 and 125.13) or aggravated vehicular homicide (125.14), each one felony class higher; see our page on criminally negligent homicide for how those cases differ.

Your License, the Interlock, and the DWI Charge Underneath

The vehicular assault conviction and the DWI conviction each take your license separately. Under VTL 510(2)(a), a conviction for assault arising out of the operation of a motor vehicle is a mandatory revocation with a six-month minimum before you can reapply, and relicensing after that is in the DMV Commissioner’s discretion. The companion VTL 1192 conviction adds its own minimum revocation under VTL 1193: six months for DWI, DWAI-drugs, or combined impairment; one year for Aggravated DWI at .18 or more; and one year or eighteen months when there is a prior conviction within ten years. The longest period controls, and the DMV’s relicensing review can extend it well past the statutory floor.

When the vehicular assault charge is built on an alcohol-related DWI, VTL 1198 requires the court to order an ignition interlock device as a condition of any probation or conditional discharge sentence, and the DWI conviction itself carries the interlock for at least twelve months, with the restriction ending on proof that the device was installed and maintained for at least six months. A defendant sentenced to state prison rather than probation is a different situation, and drug-only cases under 1192(4) are not covered by the mandatory language. Our ignition interlock page covers the device, the costs, and the rules in detail.

The DWI conviction underneath also carries everything a DWI carries on its own: the fine, the surcharges, the Impaired Driver Program, and the felony DWI exposure on any future arrest. A vehicular assault conviction is itself a predicate under VTL 1193(1)(c), so a DWI arrest within ten years of it is charged as a felony from the start.

How Andrew DeLuca Defends Vehicular Assault Cases

These cases are built from a crash report, hospital records, and a chemical test, and the defense works through each of those in order.

• The injury. Subpoenaed medical records, not the accident report, decide whether the injury is “serious” under 10.00(10). Injuries that resolved without protracted impairment do not support the felony, and that argument is made to the grand jury, on a motion to dismiss, or at trial.
• Causation. Collision reconstruction, dashcam and body-camera video, roadway conditions, and the other vehicle’s speed and lighting all bear on whether your driving caused the injury, independent of whether you had been drinking. The permissive inference is rebutted with facts, and the facts have to be collected early, before skid marks and vehicles are gone.
• The stop, the arrest, and the test. A post-crash blood draw usually happens at the hospital, and the rules for consent, warrants, and court-ordered testing under VTL 1194 are strict. Breath results depend on calibration and observation-period records. Suppressing the chemical test removes the per se charge and often the felony with it.
• The charge level. Each aggravator is a separate factual claim. A .18 reading, a prior conviction, or a “reckless driving” allegation that does not hold up drops the case a felony class, which changes the sentencing range and the plea options.

Many vehicular assault cases in this region resolve by negotiation in county court, and the range of outcomes runs from dismissal of the felony count to a plea to the underlying DWI to a sentence with no state prison time. Which of those is realistic depends on the evidence, and Andrew will tell you which one your case supports after reviewing the records rather than before.

Vehicular Assault Cases in Saratoga County and the Capital Region

Most of these cases start with a crash on the Northway (I-87) or on Route 9, Route 50, or Route 29 through Saratoga County, on the Route 9 and Route 149 corridors around Lake George and Queensbury in Warren County, or on the Thruway and Route 5 through Montgomery County. The arraignment is in the local town, village, or city court; the felony is then presented to a county grand jury and prosecuted in county court. Andrew has tried felony cases in county court since his years as a public defender, and has practiced in these courts privately since 2010. Related pages: Aggravated DWI, Second DWI, Reckless Driving, What Happens After an Arrest, and Felony Defense.