S T A T E O F N E W Y O R K
________________________________________________________________________
1194--A
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sens. FLANAGAN, LARKIN, MAZIARZ, RANZENHOFER, SAVINO,
ZELDIN -- read twice and ordered printed, and when printed to be
committed to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the penal law, in relation to vehicular assault and
vehicular manslaughter
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new section 120.03-a
to read as follows:
S 120.03-A VEHICULAR ASSAULT IN THE THIRD DEGREE.
A PERSON IS GUILTY OF VEHICULAR ASSAULT IN THE THIRD DEGREE WHEN HE OR
SHE:
(1) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE, AND KNOWS OR HAS REASON TO KNOW THAT: (A) HIS OR HER LICENSE OR
PRIVILEGE OF OPERATING A MOTOR VEHICLE IN ANOTHER STATE OR HIS OR HER
PRIVILEGE OF OBTAINING A LICENSE TO OPERATE A MOTOR VEHICLE IN ANOTHER
STATE IS SUSPENDED OR REVOKED; (B) HIS OR HER LICENSE OR PRIVILEGE OF
OPERATING A MOTOR VEHICLE IN THE STATE, OR HIS OR HER PRIVILEGE OF
OBTAINING A LICENSE ISSUED BY THE COMMISSIONER OF MOTOR VEHICLES IS
SUSPENDED OR REVOKED; OR (C) HE OR SHE IS NOT DULY LICENSED PURSUANT TO
SECTION FIVE HUNDRED TWO OF THE VEHICLE AND TRAFFIC LAW, OR
(2) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE WHEN: (A) SUCH SERIOUS PHYSICAL INJURY WAS CAUSED IN WHOLE OR
SUBSTANTIAL PART BY THE ACTOR'S VIOLATION OF ANY SECTION OR SECTIONS
CONTAINED WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW, OTHER THAN
SECTION ELEVEN HUNDRED NINETY-TWO OF SUCH TITLE, AND (B) THE ACTOR HAS
PREVIOUSLY BEEN CONVICTED OF TWO OR MORE VIOLATIONS OF ANY SECTION OR
SECTIONS CONTAINED WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW ON
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05663-02-3
S. 1194--A 2
AT LEAST TWO SEPARATE DATES WITHIN THE IMMEDIATELY PRECEDING EIGHTEEN
MONTHS, OR
(3) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE IN VIOLATION OF SUBDIVISION ONE OF SECTION ELEVEN HUNDRED NINE-
TY-TWO OF THE VEHICLE AND TRAFFIC LAW.
IN ANY PROSECUTION UNDER SUBDIVISION THREE OF THIS SECTION, IT SHALL
BE AN AFFIRMATIVE DEFENSE THAT SUCH SERIOUS PHYSICAL INJURY WAS CAUSED
IN WHOLE OR IN SUBSTANTIAL PART BY SOME FACTOR OTHER THAN THE ACTOR'S
IMPAIRMENT BY THE USE OF ALCOHOL OR THE MANNER IN WHICH THE ACTOR OPER-
ATED THE VEHICLE.
VEHICULAR ASSAULT IN THE THIRD DEGREE IS A CLASS E FELONY.
S 2. Section 120.03 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 120.03 Vehicular assault in the second degree.
A person is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of para-
graph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of
the navigation law, and as a result of such intoxication or impairment
by the use of a drug, or by the combined influence of drugs or of alco-
hol and any drug or drugs, operates such motor vehicle, vessel or public
vessel in a manner that causes such serious physical injury to such
other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than [eighteen] TEN thousand pounds which contains flammable gas,
radioactive materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law, and
such flammable gas, radioactive materials or explosives is the cause of
such serious physical injury, and as a result of such impairment by the
use of alcohol, operates such motor vehicle in a manner that causes such
serious physical injury to such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the vehicle and traffic law and in violation of subdivision two, three,
four, or four-a of section eleven hundred ninety-two of the vehicle and
traffic law, and as a result of such intoxication or impairment by the
use of a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, operates such snowmobile or all terrain vehicle in a
manner that causes such serious physical injury to such other person.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
serious physical injury while unlawfully intoxicated or impaired by the
use of alcohol or a drug, then there shall be a rebuttable presumption
that, as a result of such intoxication or impairment by the use of alco-
hol or a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, such person operated the motor vehicle, vessel,
public vessel, snowmobile or all terrain vehicle in a manner that caused
such serious physical injury, as required by this section.
Vehicular assault in the second degree is a class [E] D felony.
S 3. Section 120.04 of the penal law, as amended by chapter 496 of the
laws of 2009, is amended to read as follows:
S 120.04 Vehicular assault in the first degree.
S. 1194--A 3
A person is guilty of vehicular assault in the first degree when he or
she [commits the crime of vehicular assault in the second degree as
defined in section 120.03 of this article, and either:
(1) commits such crime while operating a motor vehicle while such
person has .18 of one per centum or more by weight of alcohol in such
person's blood as shown by chemical analysis of such person's blood,
breath, urine or saliva made pursuant to the provisions of section elev-
en hundred ninety-four of the vehicle and traffic law;
(2) commits such crime while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor
vehicle in another state or his or her privilege of obtaining a license
to operate a motor vehicle in another state is suspended or revoked and
such suspension or revocation is based upon a conviction in such other
state for an offense which would, if committed in this state, constitute
a violation of any of the provisions of section eleven hundred ninety-
two of the vehicle and traffic law; or (b) his or her license or his or
her privilege of operating a motor vehicle in the state or his or her
privilege of obtaining a license issued by the commissioner of motor
vehicles is suspended or revoked and such suspension or revocation is
based upon either a refusal to submit to a chemical test pursuant to
section eleven hundred ninety-four of the vehicle and traffic law or
following a conviction for a violation of any of the provisions of
section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions
of section eleven hundred ninety-two of the vehicle and traffic law
within the preceding ten years, provided that, for the purposes of this
subdivision, a conviction in any other state or jurisdiction for an
offense which, if committed in this state, would constitute a violation
of section eleven hundred ninety-two of the vehicle and traffic law,
shall be treated as a violation of such law;
(4) causes serious physical injury to more than one other person;
(5) has previously been convicted of violating any provision of this
article or article one hundred twenty-five of this title involving the
operation of a motor vehicle, or was convicted in any other state or
jurisdiction of an offense involving the operation of a motor vehicle
which, if committed in this state, would constitute a violation of this
article or article one hundred twenty-five of this title; or
(6) commits such crime while operating a motor vehicle while a child
who is fifteen years of age or less is a passenger in such motor vehicle
and causes serious physical injury to such child.
If it is established that the person operating such motor vehicle
caused such serious physical injury or injuries while unlawfully intoxi-
cated or impaired by the use of alcohol or a drug, or by the combined
influence of drugs or of alcohol and any drug or drugs, then there shall
be a rebuttable presumption that, as a result of such intoxication or
impairment by the use of alcohol or a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs, such person operated the
motor vehicle in a manner that caused such serious physical injury or
injuries, as required by this section and section 120.03 of this arti-
cle]:
(1) WITH KNOWLEDGE THAT HE OR SHE IS BEING PURSUED BY A POLICE OFFI-
CER, OPERATES A MOTOR VEHICLE IN VIOLATION OF ANY SECTION OR SECTIONS
CONTAINED WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW AND THEREBY
CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON, OR
(2) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE IN VIOLATION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE
S. 1194--A 4
AND TRAFFIC LAW WHILE SUCH PERSON HAS .20 OF ONE PER CENTUM OR MORE BY
WEIGHT OF ALCOHOL IN THE PERSON'S BLOOD AS SHOWN BY CHEMICAL ANALYSIS OF
SUCH PERSON'S BLOOD, URINE OR SALIVA, OR
(3) COMMITS THE CRIME OF VEHICULAR ASSAULT IN THE SECOND OR THIRD
DEGREE AND HAS BEEN PREVIOUSLY CONVICTED OF VEHICULAR ASSAULT IN THE
FIRST, SECOND OR THIRD DEGREE; OR VEHICULAR MANSLAUGHTER IN THE FIRST,
SECOND OR THIRD DEGREE; OR CRIMINALLY NEGLIGENT HOMICIDE INVOLVING THE
OPERATION OF A VEHICLE.
IN ANY PROSECUTION UNDER SUBDIVISION ONE OR TWO OF THIS SECTION, IT
SHALL BE AN AFFIRMATIVE DEFENSE THAT SUCH SERIOUS PHYSICAL INJURY WAS
CAUSED IN WHOLE OR IN SUBSTANTIAL PART BY SOME FACTOR OTHER THAN THE
ACTOR'S INTOXICATION OR THE MANNER IN WHICH THE ACTOR OPERATED THE VEHI-
CLE.
Vehicular assault in the first degree is a class [D] C felony.
S 4. The penal law is amended by adding a new section 125.12-a to read
as follows:
S 125.12-A VEHICULAR MANSLAUGHTER IN THE THIRD DEGREE.
A PERSON IS GUILTY OF VEHICULAR MANSLAUGHTER IN THE THIRD DEGREE WHEN
HE OR SHE:
(1) CAUSES THE DEATH OF ANOTHER PERSON BY OPERATION OF A VEHICLE, AND
KNOWS OR HAS REASON TO KNOW THAT: (A) HIS OR HER LICENSE OR PRIVILEGE OF
OPERATING A MOTOR VEHICLE IN ANOTHER STATE OR HIS OR HER PRIVILEGE OF
OBTAINING A LICENSE TO OPERATE A MOTOR VEHICLE IN ANOTHER STATE IS
SUSPENDED OR REVOKED; (B) HIS OR HER LICENSE OR PRIVILEGE OF OPERATING A
MOTOR VEHICLE IN THE STATE, OR HIS OR HER PRIVILEGE OF OBTAINING A
LICENSE ISSUED BY THE COMMISSIONER OF MOTOR VEHICLES IS SUSPENDED OR
REVOKED; OR (C) HE OR SHE IS NOT DULY LICENSED PURSUANT TO SECTION FIVE
HUNDRED TWO OF THE VEHICLE AND TRAFFIC LAW, OR
(2) CAUSES THE DEATH OF ANOTHER PERSON BY OPERATION OF A VEHICLE WHEN:
(A) SUCH SERIOUS PHYSICAL INJURY WAS CAUSED IN WHOLE OR SUBSTANTIAL PART
BY THE ACTOR'S VIOLATION OF ANY SECTION OR SECTIONS CONTAINED WITHIN
TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW, OTHER THAN SECTION ELEVEN
HUNDRED NINETY-TWO OF SUCH TITLE, AND (B) THE ACTOR HAS PREVIOUSLY BEEN
CONVICTED OF TWO OR MORE VIOLATIONS OF ANY SECTION OR SECTIONS CONTAINED
WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW ON AT LEAST TWO SEPA-
RATE DATES WITHIN THE IMMEDIATELY PRECEDING EIGHTEEN MONTHS, OR
(3) CAUSES THE DEATH OF ANOTHER PERSON BY OPERATION OF A VEHICLE IN
VIOLATION OF SUBDIVISION ONE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE
VEHICLE AND TRAFFIC LAW.
IN ANY PROSECUTION UNDER SUBDIVISION THREE OF THIS SECTION, IT SHALL
BE AN AFFIRMATIVE DEFENSE THAT SUCH DEATH WAS CAUSED IN WHOLE OR IN
SUBSTANTIAL PART BY SOME FACTOR OTHER THAN THE ACTOR'S IMPAIRMENT BY THE
USE OF ALCOHOL OR THE MANNER IN WHICH THE ACTOR OPERATED THE VEHICLE.
VEHICULAR MANSLAUGHTER IN THE THIRD DEGREE IS A CLASS D FELONY.
S 5. Section 125.12 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 125.12 Vehicular manslaughter in the second degree.
A person is guilty of vehicular manslaughter in the second degree when
he or she causes the death of another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of para-
graph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of
the navigation law, and as a result of such intoxication or impairment
by the use of a drug, or by the combined influence of drugs or of alco-
S. 1194--A 5
hol and any drug or drugs, operates such motor vehicle, vessel or public
vessel in a manner that causes the death of such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than [eighteen] TEN thousand pounds which contains flammable gas,
radioactive materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law, and
such flammable gas, radioactive materials or explosives is the cause of
such death, and as a result of such impairment by the use of alcohol,
operates such motor vehicle in a manner that causes the death of such
other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the vehicle and traffic law in violation of subdivision two, three,
four, or four-a of section eleven hundred ninety-two of the vehicle and
traffic law, and as a result of such intoxication or impairment by the
use of a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, operates such snowmobile or all terrain vehicle in a
manner that causes the death of such other person[.], OR
(4) COMMITS THE CRIME OF CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN
SECTION 125.10 OF THIS ARTICLE BY OPERATION OF A MOTOR VEHICLE, AND
KNOWS OR HAS REASON TO KNOW THAT: (A) HIS OR HER LICENSE OR HIS OR HER
PRIVILEGE OF OPERATING A MOTOR VEHICLE IN ANOTHER STATE OR HIS OR HER
PRIVILEGE OF OBTAINING A LICENSE TO OPERATE A MOTOR VEHICLE IN ANOTHER
STATE IS SUSPENDED OR REVOKED; (B) HIS OR HER LICENSE OR PRIVILEGE OF
OPERATING A MOTOR VEHICLE IN THE STATE OR HIS OR HER PRIVILEGE OF
OBTAINING A LICENSE ISSUED BY THE COMMISSIONER OF MOTOR VEHICLES IS
SUSPENDED OR REVOKED; OR (C) HE OR SHE IS NOT DULY LICENSED PURSUANT TO
SECTION FIVE HUNDRED TWO OF THE VEHICLE AND TRAFFIC LAW, OR
(5) COMMITS THE CRIME OF CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN
SECTION 125.10 OF THIS ARTICLE BY OPERATION OF A MOTOR VEHICLE WHEN: (A)
SUCH SERIOUS PHYSICAL INJURY WAS CAUSED IN WHOLE OR SUBSTANTIAL PART BY
THE ACTOR'S VIOLATION OF ANY SECTION OR SECTIONS CONTAINED WITHIN TITLE
SEVEN OF THE VEHICLE AND TRAFFIC LAW, OTHER THAN SUBDIVISIONS TWO, THREE
OR FOUR OF SECTION ELEVEN HUNDRED NINETY-TWO OF SUCH TITLE, AND (B) THE
ACTOR HAS PREVIOUSLY BEEN CONVICTED OF TWO OR MORE VIOLATIONS OF ANY
SECTION OR SECTIONS CONTAINED WITHIN TITLE SEVEN OF THE VEHICLE AND
TRAFFIC LAW ON AT LEAST TWO SEPARATE DATES WITHIN THE IMMEDIATELY
PRECEDING EIGHTEEN MONTHS.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
death while unlawfully intoxicated or impaired by the use of alcohol or
a drug, then there shall be a rebuttable presumption that, as a result
of such intoxication or impairment by the use of alcohol or a drug, or
by the combined influence of drugs or of alcohol and any drug or drugs,
such person operated the motor vehicle, vessel, public vessel, snowmo-
bile or all terrain vehicle in a manner that caused such death, as
required by this section.
Vehicular manslaughter in the second degree is a class [D] C felony.
S 6. This act shall take effect immediately.
