S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3533
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 24, 2017
                                ___________
 
 Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 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:
 § 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
 AT  LEAST  TWO  SEPARATE DATES WITHIN THE IMMEDIATELY PRECEDING EIGHTEEN
 MONTHS, OR

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07717-01-7

              

 S. 3533                             2
 
   (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.
   § 2. Section 120.03 of the penal law, as amended by chapter 732 of the
 laws of 2006, is amended to read as follows:
 § 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.
   § 3. Section 120.04 of the penal law, as amended by chapter 496 of the
 laws of 2009, is amended to read as follows:
 § 120.04 Vehicular assault in the first degree.

 S. 3533                             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. 3533                             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.
   § 4. The penal law is amended by adding a new section 125.12-a to read
 as follows:
 § 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.
   § 5. Section 125.12 of the penal law, as amended by chapter 732 of the
 laws of 2006, is amended to read as follows:
 § 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. 3533                             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.
   § 6. This act shall take effect immediately.