senate Bill S1835

Relates to vehicular assault and vehicular manslaughter

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 13 / Jan / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • REFERRED TO CODES
  • 18 / Jun / 2012
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 18 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1271
  • 18 / Jun / 2012
    • PASSED SENATE
  • 18 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 18 / Jun / 2012
    • REFERRED TO CODES

Summary

Establishes the class E felony of vehicular assault in the third degree; lessens the requirements for a violation of vehicular assault in the second degree; expands the offenses of vehicular assault and vehicular manslaughter; and establishes the class D felony of vehicular manslaughter in the third degree.

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Bill Details

Versions:
S1835
Legislative Cycle:
2011-2012
Current Committee:
Assembly Codes
Law Section:
Penal Law
Laws Affected:
Add §§120.03-a & 125.12-a, amd §§120.03, 120.04 & 125.12, Pen L
Versions Introduced in 2009-2010 Legislative Cycle:
S4168, S7081A

Sponsor Memo

BILL NUMBER:S1835

TITLE OF BILL:
An act
to amend the penal law,
in relation to vehicular assault and vehicular
manslaughter

PURPOSE:
To establish new criminal sanctions and
enhance existing
criminal sanctions in order to adequately deter and punish motorists
who injure or kill pedestrians or other drivers as a result of
dangerous and unlawful driving.

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 §1192(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

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

EFFECTIVE DATE:
This act shall take effect immediately.


view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1835

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 13, 2011
                               ___________

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:
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
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.
                                                           LBD06202-01-1

S. 1835                             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.
  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. 1835                             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. 1835                             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. 1835                             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 felony.
  S 6. This act shall take effect immediately.

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