DUI Crash. What are the Defenses. How We Can Help.

A DUI crash can be a felony if it is found that you seriously injured someone when you drove while intoxicated. If it is alleged that you were driving while intoxicated and you crashed your vehicle, and someone was injured, don’t talk to the police. Demand that they let you speak to an attorney. Immediately call a lawyer to help you navigate this situation. We can be reached at 212-233-1233 or 212-233-1233.

You will be brought to the police station and booked. It’s important to remember that you have the right to remain silent and the right to refuse a chemical test until your lawyer appears. Protect your future from a DUI crash by demanding the police letting you speak to a lawyer, getting a lawyer to ensure you have an adequate defense from the start.

DUI Crash Leading to a Felony

New York Penal Law § 120.03 defines vehicular assault in the second degree as a Class E felony, while § 120.04 defines vehicular assault in the first degree as a Class D Felony, and § 120.04-A defines aggravated vehicular assault as a Class C felony.

In vehicular assault in the second degree, aside from causing serious physical injury to another person, you must have been driving while under the influence of alcohol or drugs, as defined by the Vehicle and Traffic Law (VTL). This means you must have a blood alcohol content of at least 0.08%, or if you refused to take a chemical test that would determine your blood alcohol content, then you must have been driving while appearing to be intoxicated, as proven by circumstantial evidence.

In vehicular assault in the first degree, you must have committed vehicular assault in the second degree plus another aggravating circumstance, such as driving with a blood alcohol content of at least 0.18%, driving with a suspended or revoked license due to a prior DUI conviction, had a previous DUI conviction in the past 10 years in any state, caused serious physical injuries to more than 1 person, have a previous vehicular assault-related conviction in any state, or caused serious physical injury to a child passenger below 15 years.

In aggravated vehicular assault, vehicular assault in the first degree was committed with reckless driving. Reckless driving is defined in VTL § 1212 as driving in a manner that unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Examples of reckless driving are crossing the centerline into the path of oncoming traffic at a high rate of speed or driving 30 mph above the speed limit.

In all crimes of vehicular assaults, the driver must have caused serious physical injury to another person. Serious physical injury is defined as an injury so severe that it creates a substantial risk of death or causes death, protracted disfigurement or impairment of health, or loss of a body organ.

Possible Defenses to Vehicular Assault

An experienced lawyer typically has several defenses it can use in DUI crashes, depending on the circumstances of each case. Generally, a lawyer would argue that the breathalyzer test is inaccurate or was not calibrated and thus unreliable, or the injuries were not serious enough. The determination of whether an injury is serious depends on medical records.

As mentioned earlier, you have the right to refuse a chemical test after a DUI crash. However, this refusal can be used against you, unless the officer did not give you the proper warnings about the consequences of your refusal. A lawyer would advise you to refuse a chemical test if you are extremely intoxicated. Why? Because refusing a chemical test will normally charge you with the common law DUI which is similar to the penalty of having 0.08% blood alcohol content. If you believe you have less than 0.18% of alcohol in your blood, then it makes no difference whether you refuse the test or not because the effect is the same. But if you believe you have at least 0.18% of blood alcohol content, this will carry stiffer penalties, and taking the test will give the police a credible way of determining your blood alcohol content for purposes of prosecution. For this reason, it is better to refuse the test.

Some Illustrations of a DUI Crash

For example, you had a couple of beers in a bar. you felt able to drive, so you drove himself home. Unfortunately, you were also sleepy, and you crashed your car into a tree. Can you be charged with vehicular assault? No, because you did not cause serious physical injury to anyone. You could, however, be charged with a regular DUI.

Suppose that you, instead, crashed into another car. Fortunately, both drivers had their seatbelts fastened, and the other driver sustained a minor cut that was easily treated with some bandages. Can you be charged with vehicular assault? You can argue that there is no case for vehicular assault because the other driver was not seriously injured.

Suppose instead that you crashed into a pedestrian. The pedestrian was brought to the hospital and needed to undergo surgery to save a leg. In this case, can you be charged with vehicular assault? Here, serious physical injury was caused to the pedestrian. However, there is still a question of whether you were legally intoxicated at the time of the accident.

Suppose then that the pedestrian suffered serious physical injury, and immediately after the accident, the police administered a breathalyzer test upon You which showed a blood alcohol content of 0.03%. Can you be charged with vehicular assault in the second degree? In this case, you cannot be charged with vehicular assault because a blood alcohol content of 0.03% is not considered legally intoxicated under the New York VTL.

Suppose in that example that You had five gin and tonics, five beers, and five glasses of wine, drove home drunk, and hit a pedestrian, causing the pedestrian serious physical injuries. You refused to take a breathalyzer test until your lawyer arrived. When your lawyer arrived and they determined that you could probably have a blood alcohol content of 0.18%, the lawyer advised him to refuse to take the breathalyzer test. The police now have no evidence of your blood alcohol content. You are now being charged with vehicular assault in the first degree. Is this proper? You can question the charge because there is no proof that you had a blood alcohol content of 0.18% (assuming that none of the other aggravating circumstances are present). If ever, the police can only prove that you were at least legally intoxicated while driving (by testifying regarding the alleged smell of alcohol from your mouth, your alleged bloodshot eyes, and Your refusal to take the test as evidence of your drinking) and your charge can only be vehicular assault in the second degree.

A DUI crash can lead to being charged with a felony. When this happens, it’s important to get a lawyer immediately. There is no need to panic because you could have several defenses available. You need a lawyer who can help you navigate the situation and put your mind more at ease. A lawyer, like us, will help strategize a defense that can dismiss the charge or lower your charge.

Should you need assistance after a DUI crash, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or 212-233-1233 or send us an email at [email protected].