Bill S4150-2013

Makes aggravated vehicular homicide a violent felony offense

Makes aggravated vehicular homicide a violent felony offense; clarifies that aggravated vehicular homicide also applies to boating incidents.

Details

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Actions

  • Jan 8, 2014: REFERRED TO CODES
  • Mar 12, 2013: REFERRED TO CODES

Memo

BILL NUMBER:S4150

TITLE OF BILL: An act to amend the penal law, in relation to aggravated vehicular homicide and violent felony offenses; to amend the navigation law, in relation to the definition of pleasure vessel; and to amend the vehicle and traffic law, in relation to reckless driving

PURPOSE: To make the crimes of Aggravated Vehicular Homicide and Aggravated Vehicular Manslaughter apply to all vehicles and vessels, and to designate Aggravated Vehicular Homicide a violent felony offense

SUMMARY OF PROVISIONS:

Section 1: amends the crime of aggravated vehicular homicide (penal law 125.14) to apply to all vehicles and vessels.

Section 2: amends paragraph (c) of subdivision 6 of section 2 of the navigation law, as amended by chapter 484 of the laws of 2005 to add vessels powered by sail to the definition of "pleasure vessel."

Section 3: amends section 1212 of the vehicle and traffic law, as added by chapter 47 of the laws of 1988, to apply to all vehicles and vessels.

Section 4: amends paragraph (a) of subdivision 1 of section 70.02 of the penal law, as amended by chapter 320 of the laws of 2006 to add aggravated vehicular homicide to the list of designated violent felonies.

Section 5: amends section 134 of the vehicle and traffic law to add "public waterway and waters of the state" to the definition of public highway.

Section 6: amends section 125.13 of the penal law, as amended by chapter 496 of the laws of 2009 to apply to all vehicles and vessels.

Section 7: amends section 125.12 of the penal law, as amended by chapter 732 of the laws of 2006 to apply to all vehicles and vessels.

Section 8: effective date - on the one hundred twentieth day after it shall have become a law.

JUSTIFICATION: The following text, in sum and substance, was provided by the Office of the Suffolk County District Attorney:

Last year, in Suffolk County there was a threefold increase in cases involving boating while intoxicated. Congested waterways, high speed vessels, and often, inexperienced operators under the influence of drugs, alcohol or both, have created this unacceptable crisis.

In the summer of 2011, a Suffolk County family with their children and friends was traveling in a boat, returning from a movie. They were in the Great South Bay and were struck by an intoxicated boater operating without lights. One of the passengers, a student athlete, looking

forward to starting her freshman year in college, lost a kidney, her spleen, and suffered several broken ribs. The intoxicated boat operator was later determined to have approximately one and a half times the legal limit of alcohol in his system, some five hours after the crash. He was later charged with Vehicular Assault and Boating While Intoxicated.

Another noteworthy, but tragic incident occurred on the Great South Bay in June of 2012. A young father was on a fishing vessel with friends on their way to a fishing tournament early in the morning. The fishing vessel was struck by a boat going more than 80 mph. Family and friends watched helplessly as authorities searched the waters with dive teams to rescue the man. His lifeless body was found twelve hours later, another victim of an intoxicated, reckless boater. The operator of the speedboat who caused the death was rescued and suffered non-life threatening injuries.

While the intoxicated operators of the vessels used in these cases were charged with serious felony crimes, the subsequent investigations revealed weaknesses in the current statutory scheme which could seriously impact their prosecution and others similarly situated.

In 2007, the New York State Legislature created a valuable tool for prosecutors to fight drunk driving; the crime of Aggravated Vehicular Homicide (Penal Law section 125.14). This crime requires reckless driving as defined in Vehicle and Traffic Law section 1212 AND the commission of the crime of Vehicular Manslaughter in the Second Degree (Penal Law section 125.12) along with seven other aggravating factors.

While Vehicular Manslaughter in the Second Degree by its terms, applies to both motor vehicles and vessels operating under Section 49-a of the Navigation Law, Aggravated Vehicular Homicide and Vehicular Manslaughter in the First Degree do not. This statutory omission has created a loophole that makes Aggravated Vehicular Homicide and Vehicular Manslaughter in the First Degree inapplicable to vessels. This same loophole exists with respect to snowmobiles and all terrain vehicles. They are included in Vehicular Manslaughter in the Second Degree but in no other vehicular crimes.

Additionally, Vehicle and Traffic Law section 134 should be expanded to include as a public highway a "public waterway or waters of the state as defined in section 49-a of the Navigation Law". This language should also be added to the reckless driving statute, Vehicle and Traffic Law section 1212. These simple amendments will enhance the tools prosecutors may use to continue to fight drunk driving.

Since 2007, the Suffolk County District Attorney's Office has charged 59 defendants with the crime of Aggravated Vehicular Homicide, a class B felony. The DA's Office believes the crime to be so pervasive that they are requesting another deterrent be created, namely, classifying Aggravated Vehicle Homicide as a violent felony. This change would require mandatory state incarceration of a determinate term of between 5 and 25 years rather than the current minimum indeterminate sentence of 1 to 3 years. It is believed that all of the above amendments will be powerful deterrents in the fight to keep our roads and waterways safe from drunk drivers.

LEGISLATIVE HISTORY: New bill

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: This act shall take effect on the one hundred twentieth day after it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 4150 2013-2014 Regular Sessions IN SENATE March 12, 2013 ___________
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 aggravated vehicular homi- cide and violent felony offenses; to amend the navigation law, in relation to the definition of pleasure vessel; and to amend the vehi- cle and traffic law, in relation to reckless driving THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 125.14 of the penal law, as amended by chapter 496 of the laws of 2009, is amended to read as follows: S 125.14 Aggravated vehicular homicide. A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either: (1) commits such crimes 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 OR WHILE OPERATING A VESSEL OR PUBLIC VESSEL 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 FORTY-NINE-A OF THE NAVIGATION LAW; (2) commits such crimes 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 SECTION FORTY-NINE-A OF THE NAVIGATION LAW; or (b) his or her license or his or her privilege of operating a [motor] vehicle in this 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 SECTION FORTY-NINE-A OF THE NAVIGATION 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 OR A VIOLATION OF ANY PROVISIONS OF SECTION FORTY-NINE-A OF THE NAVIGATION LAW; (3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law OR SECTION FORTY-NINE-A OF THE NAVIGATION 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 nine- ty-two of the vehicle and traffic law, OR SECTION FORTY-NINE-A OF THE NAVIGATION LAW shall be treated as a violation of such law; (4) causes the death of more than one other person; (5) causes the death of one person and the serious physical injury of at least one other person; (6) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the opera- tion of a [motor] vehicle, or was convicted in any other state or juris- diction 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 of this title; or (7) 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] vehi- cle and causes the death of such child. If it is established that the person operating such [motor] vehicle caused such death or deaths while unlawfully intoxicated 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 death or deaths, as required by this section and section 125.12 of this article. Aggravated vehicular homicide is a class B felony. S 2. Paragraph (c) of subdivision 6 of section 2 of the navigation law, as amended by chapter 484 of the laws of 2005, is amended to read as follows: (c) "Pleasure vessel" shall mean and include every vessel INCLUDING ANY VESSEL POWERED BY SAIL, not within the classification of public vessel or residential vessel. However, the provisions of this chapter shall not apply to rowboats, canoes and kayaks except as otherwise expressly provided. S 3. Section 1212 of the vehicle and traffic law, as added by chapter 47 of the laws of 1988, is amended to read as follows: S 1212. Reckless driving. Reckless driving shall mean driving or using any motor vehicle, VESSEL OR PUBLIC VESSEL AS DEFINED BY SECTION FORTY- NINE-A OF THE NAVIGATION LAW, motorcycle, SNOWMOBILE, SNOW PLOWS, TRAC- TORS, FARM EQUIPMENT, ALL TERRAIN TYPE VEHICLES, or any other vehicle OR
VESSEL propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway OR NAVIGABLE WATERWAYS, or unreasonably endangers users of the public highway OR NAVIGABLE WATER- WAYS. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor. S 4. Paragraph (a) of subdivision 1 of section 70.02 of the penal law, as amended by chapter 320 of the laws of 2006, is amended to read as follows: (a) Class B violent felony offenses: an attempt to commit the class A-I felonies of murder in the second degree as defined in section 125.25, kidnapping in the first degree as defined in section 135.25, and arson in the first degree as defined in section 150.20; manslaughter in the first degree as defined in section 125.20, aggravated manslaughter in the first degree as defined in section 125.22, rape in the first degree as defined in section 130.35, criminal sexual act in the first degree as defined in section 130.50, aggravated sexual abuse in the first degree as defined in section 130.70, course of sexual conduct against a child in the first degree as defined in section 130.75; assault in the first degree as defined in section 120.10, AGGRAVATED VEHICULAR HOMICIDE AS DEFINED IN SECTION 125.14, kidnapping in the second degree as defined in section 135.20, burglary in the first degree as defined in section 140.30, arson in the second degree as defined in section 150.15, robbery in the first degree as defined in section 160.15, incest in the first degree as defined in section 255.27, crimi- nal possession of a weapon in the first degree as defined in section 265.04, criminal use of a firearm in the first degree as defined in section 265.09, criminal sale of a firearm in the first degree as defined in section 265.13, aggravated assault upon a police officer or a peace officer as defined in section 120.11, gang assault in the first degree as defined in section 120.07, intimidating a victim or witness in the first degree as defined in section 215.17, hindering prosecution of terrorism in the first degree as defined in section 490.35, criminal possession of a chemical weapon or biological weapon in the second degree as defined in section 490.40, and criminal use of a chemical weapon or biological weapon in the third degree as defined in section 490.47. S 5. Section 134 of the vehicle and traffic law is amended to read as follows: S 134. Public highway. Any highway, road, street, avenue, alley, public place, public driveway, PUBLIC WATERWAY OR WATERS OF THE STATE AS DEFINED IN SECTION FORTY-NINE-A OF THE NAVIGATION LAW or any other public way. S 6. Section 125.13 of the penal law, as amended by chapter 496 of the laws of 2009, is amended to read as follows: S 125.13 Vehicular manslaughter in the first degree. A person is guilty of vehicular manslaughter in the first degree when he or she commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 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 OR WHILE OPERATING A VESSEL OR PUBLIC VESSEL 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 FORTY-NINE-A OF THE NAVIGATION 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 SECTION FORTY-NINE-A OF THE NAVIGATION 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 SECTION FORTY-NINE-A OF THE NAVIGATION LAW, or following a conviction for a violation of any of the provisions of section eleven hundred nine- ty-two of the vehicle and traffic law OR A VIOLATION OF ANY PROVISIONS OF SECTION FORTY-NINE-A OF THE NAVIGATION LAW; (3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law OR SECTION FORTY-NINE-A OF THE NAVIGATION 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 nine- ty-two of the vehicle and traffic law OR SECTION FORTY-NINE-A OF THE NAVIGATION LAW, shall be treated as a violation of such law; (4) causes the death of more than one other person; (5) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the opera- tion of a [motor] vehicle, or was convicted in any other state or juris- diction 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 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] vehi- cle and causes the death of such child. If it is established that the person operating such [motor] vehicle caused such death or deaths while unlawfully intoxicated 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 death or deaths, as required by this section and section 125.12 of this article. Vehicular manslaughter in the first degree is a class C felony. S 7. 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- 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 thousand pounds which contains flammable gas, radio- active materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law OR SECTION FORTY-NINE-A OF THE NAVIGATION 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. 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 8. This act shall take effect on the one hundred twentieth day after it shall have become a law.

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