DWI / DUI and Serious Injury in New York

June 22, 2011

A recent article in Long Island’s Riverhead News-Review relates a sad and, sadly, all too common occurrence. Two cars collide. Both drivers are hurt. One of the drivers, according to police investigating the accident, has had too much to drink.

That driver is charged with Driving While Intoxicated (DWI) (and in this case, according to another article in The Long Island Press, with driving without a license, and crossing the divider of a limited access highway). He is given a court-ordered blood test. Later, he must appear in the local criminal court, “where,” the News-Review notes, “he might face additional charges.”

What might those charges be? As the Long Island Press correctly notes, it depends on the results of the blood test. If the test confirms what the police apparently suspect — that the defendant had a blood alcohol content (BAC) of .08 or greater — a number of options will open up for the prosecution.

First, the defendant is currently charged with what lawyers call “common law” DWI [Vehicle and Traffic Law Section 1192(3)]. Intoxication is proven using roadside tests of impairment, such as the one-legged stand and reciting the alphabet backward, along with testimony that the defendant admitted drinking and/or smelled of alcohol. A blood test result of .08 or greater would expose the defendant to an additional misdemeanor charge: driving with a BAC of .08 or greater as measured by a test of blood, breath or urine [Vehicle and Traffic Law Section 1192(3)].

The defendant’s potential exposure goes far beyond these misdemeanor charges, however.

If the prosecution concludes that it can prove at trial that he committed the misdemeanor of Driving While Intoxicated and that he caused a serious physical injury to the other driver while committing that misdemeanor, the defendant could be charged with a felony: Vehicular Assault in the Second Degree [Penal Law Section 120.03(1)]; if convicted, he could be sentenced to 1 1/3 to 4 years in prison.

If the results of the court-ordered blood test reveal a BAC of .18 or greater, the defendant could face a charge of Vehicular Assault in the First Degree [Penal Law Section 120.04(1)]. Essentially, “Vehicular Assault 2nd + .18 BAC = Vehicular Assault 1st.” If convicted, he could be sentenced to a maximum of 2 1/3 to 7 years in prison.

Worse still, if he were convicted of Vehicular Assault in the First Degree, and of the misdemeanor of reckless driving [Vehicle and Traffic Law Section 1212], he would also be guilty of Aggravated Vehicular Assault [Penal Law Section 120.04-a]. He would in that case face a maximum term of 5 to 15 years in prison.

In short, the defendant here could have massive exposure.

For a very thoughtful discussion of the legal issues that arise from a serious accident combined with a DWI/DUI charge, take a look at a recent decision of the New York Court of Appeals, People v. Valencia.

And please note, that all we know about the facts of the case comes from the referenced articles. Furthermore, all anyone knows at this point comes from the police. What the defendant’s side of the story is, no one knows, but he has pled not guilty and, at this point, has been convicted of nothing.

If you or a loved one should be facing a DWI/DUI charge, don’t hesitate to call us for a free consultation at (518) 583-4600.

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