Relates to vehicular assault and vehicular manslaughter

Summary of provisions

Section 1 of the bill would amend the Penal Law by adding new 120.03-a, establishing the crime of Vehicular Assault in the Third Degree, a class E felony. Vehicular Assault in the Third Degree would be committed when a driver seriously injures another and the driver (a) knows that his or her license was suspended or revoked; or (b) the driver was operating his or her vehicle in violation of Title VII ("rules of the road") of the Vehicle & Traffic Law ("VTL") thereby causing the injury and had two or more prior VTL violations in the last 18 months; or (c) is impaired by his or her use of alcohol in violation of VTL § 1192(1). An affirmative defense that the serious physical injury was caused in whole or substantial part by some factor other than the driver's impairment or the manner in which the driver was operating the vehicle would be established.

Section 2 would amend Penal Law § 120.03 to redefine the crime of Vehicular Assault in the Second Degree. The level of the crime would be raised from a class E to a class D felony. Changes also would include eliminating the element of criminal negligence from the crime of Vehicular Assault in the Second Degree when a driver is intoxicated or his or her ability is impaired by alcohol and drugs and he, or she, while operating a vehicle, motor vehicle, vessel, snowmobile or all terrain vehicle, causes serious physical injury to another person. Section 2 also would provide an affirmative defense where such serious physical injury was primarily caused by some factor other than either the driver's intoxication or impairment by alcohol and drugs or the manner in which he or she operated the vehicle while so intoxicated or impaired. The crime would also include commission of the crime of Vehicular Assault in the Third Degree with Criminal Negligence.

Section 3 would amend Penal Law § 120.04 by increasing the penally for the crime of Vehicular Assault in the First Degree from a class D felony to a class C felony, and redefining the crime so as to punish offenders who (a) with intent to evade a police officer after having received a lawful signal to bring the vehicle to a stop, operate a vehicle in violation of the VTL's "rules of the road" and causes serious physical injury; (b) operate a vehicle with a blood alcohol content of or (c) commit the crime of Vehicular Assault in the Second or Third Degrees and have a prior Vehicular Assault, Vehicular Manslaughter or Criminally Negligent Homicide involving a vehicle conviction. This section also includes an affirmative defense where such serious physical injury was primarily caused by some factor other than the driver's intoxication or the manner in which the driver operated the vehicle.

Section 4 would amend the Penal Law by adding new § 125.11, establishing the crime of Vehicular Manslaughter in the Third Degree, a class D felony. Like Vehicular Assault in the Third Degree, Vehicular Manslaughter in the Third Degree would be committed when a driver causes the death of another and the driver (a) knows that his or her license was suspended or revoked; or (b) the driver was operating his or her vehicle in violation of the VTL's "rules of the road," thereby causing the death and had two or more prior VTL violations in the last 18 months; or (c) is impaired by his or her use of alcohol in violation of VTL 51192(1). The section also establishes the affirmative defense that the serious Physical injury was caused in whole or substantial part by some factor other than the driver's impairment or the manner in which the driver was operating the vehicle.

Section 5 would amend Penal Law § 125.12 to redefine the crime of Vehicular Manslaughter in the second Degree. The level of the crime would be raised from a class D to a class C felony. Changes also include adding subdivision 4 regarding suspended licenses. Subdivision 5 adds any violation of Title VII of the Vehicle & Traffic Law other than subdivisions two, three or four of § 1192 and also if the driver has been previously convicted of two or more violations of Title VII of the Vehicle & Traffic Law on at least two separate dates within the immediately preceding eighteen months.

Section 6 of the bill would provide that the bill would take effect immediately.

Justification

An alarming number of pedestrians and others are seriously hurt or killed each year by dangerous drivers operating their vehicles in violation of the VTL's "rules of the road." Many of these dangerous drivers are operating a vehicle despite prior convictions that resulted in the suspension or revocation of their license. While such drivers are sometimes held criminally accountable if there is compelling proof of gross negligence or recklessness, all too often under current law such dangerous behavior and deadly results can only be charged as a simple traffic infraction.

VEHICULAR ASSAULT AND VEHICULAR MANSLAUGHTER REFORMS

Current law fails to adequately address the significant problem of drivers who flagrantly violate the VTL's "rules of the road" by speeding, refusing to obey traffic signals, or by committing other "moving" violations, even when such driving results in the tragedy of a pedestrian injury or death. Prosecutors are unable to charge drivers who seriously injure or kill innocent bystanders under the existing Vehicular Assault and Vehicular Manslaughter crimes, even when the serious injury or death was the direct result of the driver's VTL violation, absent proof of gross negligence. In addition, Prosecutors must have proof of such criminal negligence in order to charge drivers who are not licensed to operate a vehicle (often because their licenses have been revoked or suspended as a result of past misdeeds) with the crimes of Vehicular Assault and Vehicular Manslaughter. This unfortunate reality offends the public conscience and invalidates the underlying objective of licensing drivers, and should be addressed.

Recognizing, however, that a driver's violation of the VTL may not, in all cases, be a direct cause of another person's death or injury, the bill provides an affirmative defense where such serious physical injury or death was primarily caused by some factor other than the defendant's driving.

VEHICULAR ASSAULT AND VEHICULAR MANSLAUGHTER REFORMS - INTOXICATION

In 1983, the Legislature created the felony crimes of Vehicular Assault and Vehicular Manslaughter to provide harsher penalties for intoxicated drivers. These statutes, however, have not achieved that purpose because prosecutors are still required to prove that the driver acted with criminal negligence - a difficult standard to prove since courts have ruled that driving while intoxicated, by itself, does not constitute criminal negligence, The unfortunate result is that drunk or impaired drivers who cause another person's death or serious physical injury cannot be charged with vehicular assault or manslaughter unless they have committed additional traffic infractions like speeding or running a red light.

This deficiency in existing law is best illustrated by example. In Suffolk County, an intoxicated driver crashed into the vehicle of an innocent 31 year-old driver who died as a result of his injuries. Despite the tragic results of this heinous crime, the drunk driver could not be charged with vehicular manslaughter since he did not commit a traffic infraction other than drunk driving. Incredibly, he received only a conditional discharge and a fine. Also in Suffolk County, a drunk driver, who struck and killed an unsuspecting teenage girl as she stood near the side of a road, shamefully could only be charged with a misdemeanor due to the onerous criminal negligent requirement. Current law intolerably enables drunk drivers to escape punishment for victim injuries and deaths. By removing the element of criminal negligence from the crime of Vehicular Assault in the Second Degree and Vehicular Manslaughter in the Second Degree when there is proof of intoxication, the bill provides law enforcement with appropriate tools to effectively prosecute and punish drunk drivers.

Recognizing, however, that a driver's ingestion of alcohol or drugs may not in all cases be a direct cause of another person's death or injury, the bill provides an affirmative defense where such serious physical injury or death was primarily caused by some factor other than the defendant's intoxication or impairment. For example, an intoxicated or impaired driver lawfully parked at the side of the road "sleeping off" the effects of his or her intoxication or impairment conceivably could be struck by another vehicle. In that instance, if the driver who "primarily caused" that accident suffers serious physical injury or death, the intoxicated or impaired individual would be able to assert the affirmative defense and avoid liability for the other driver's injuries or death.

VEHICULAR MANSLAUGHTER REFORMS - EVASION OF A POLICE OFFICER

In addition to working diligently to reduce the number of drunk-driving tragedies, New York State strives to keep its highways and other, thoroughfares free from other unsafe drivers as well. Often, serious injuries and fatalities have occurred due to drivers who display an outrageous disregard for the well-being of others by

traveling in excess of the speed limit and refusing to comply with lawful police orders.

A tragedy in Queens perhaps best illustrates the importance of creating new crimes and enhancing penalties for these motorists who seriously injure or kill. A man led police on a high speed and deadly chase through the streets of a Queens neighborhood. In his wake, he left two elderly women dead and a 63-year-old man in critical condition. Regrettably, under current law this driver can only be charged with a class C felony. Under the bill, a person who leads the police on a high-speed chase that results in the death of another will be charged with Vehicular Manslaughter in the First Degree, a class B felony, thereby exposing such an offender to 25 years in state prison.

The following list of similarly tragic crimes further underscores the need for legislation that adequately addresses the cowardly and deadly acts of those who refuse to adhere to the rules of the road and fail to heed the instructions of law enforcement personnel.

* After leading police on a 110 mile per-hour chase through the streets of a small town in upstate New York, a motorist lost control of his vehicle and plowed into a restaurant and delivery truck killing two 27-year-old men.

* In November of 1996, a motorist, after refusing a State Trooper's instruction to stop his vehicle, led the State Police on a 95 mile per hour chase which resulted in a crash that left a 13-year-old girl dead.

* In 2001, a State Trooper stopped a vehicle for a traffic infraction. As the State Trooper approached the vehicle on foot, the driver sped off and struck a tree, killing his 21- and 22-year-old passengers.

The bill also makes conforming changes to the crime of Vehicular Assault in the First Degree. Under the bill, those who violate the rules of the road while evading pursuing police officers and cause serious physical injury will be subject to swift prosecution for a class C felony.

Prior legislative history

2008: Passed Senate/Assembly Codes Cmte. 2010: S.4168 Reported out of Codes; Advanced to Third Reading 2012: S.1835 Passed Senate

Fiscal implications

It is not anticipated that this legislation will have any significant fiscal impact.

Effective date

This act shall take effect immediately.