VEHICULAR ASSAULT

It happens when you least expect it and rarely does a person actually mean to hurt anyone when they’re charged with vehicular assault. Unfortunately, however, vehicular assault is a severe crime with real consequences. Prosecutors take these types of charges very seriously and typically charge them as “dangerous” offenses. This means that your car is considered a dangerous instrument under the law, just like a knife or a gun. This also means that you face mandatory prison even if you have no prior criminal record.

Due to the serious nature of these charges, it is necessary to understand the law that surrounds the crime or vehicular assault. It also helps to discuss the details of your case with an attorney with experience handling these types of cases.

Vehicular Assault

What is Vehicular Assault?

Vehicular assault is charged as aggravated vehicular assault because the assault is aggravated (or made worse) by the fact that a dangerous instrument (a vehicle) is used during the assault. Or the assault is aggravated by the fact that the physical injury caused was serious physical injury. Under A.R.S. § 13-1204, there are three primary ways to commit vehicular assault.

  1. Any Physical Injury. A conviction for aggravated vehicular assault requires the prosecution to prove that:
    • You intentionally, knowingly, or recklessly caused any physical injury to another person, and
    • You used a dangerous instrument (a vehicle).
  1. Serious Physical Injury. You can also be convicted for vehicular assault if the prosecution proves that:
    • You intentionally, knowingly, or recklessly caused any physical injury to another person, and
    • You caused serious physical injury.
  1. Fear of Injury. You can also be convicted for aggravated vehicular assault if the prosecution proves that:
    • You intentionally put another person in reasonable apprehension of imminent physical injury, and
    • You used a dangerous instrument (a vehicle).

SIDE NOTE: A DUI with accident but no injury would not constitute vehicular assault because while the conduct was reckless and a dangerous instrument was used (car), there was no physical injury. The person, however, would be charged with DUI and likely face harsher punishments due to the accident.

Understanding Vehicular Assault Terminology and the Law

The law surrounding vehicular assault can be some of the more complicated law to understand. This is because in order to be convicted and sentenced under Arizona’s vehicular assault statute, a series of legal determinations need to be made by the prosecution, the judge and often a jury. The terminology and law surrounding these findings are outlined below.

Intentionally or Knowingly Caused Physical Injury Defined

This way of committing vehicular assault under this theory is pretty straightforward. It is when use a car to hurt someone with the intent to hurt them or knowing that you will them.

  • Example. In a domestic dispute, a verbal argument spills outside. One party is trying to drive away, but the other person is standing in front of the car trying to keep them from leaving. The driver pushes on the gas and hits the person in front of the car.

Recklessly Caused Physical Injury Defined

The law defines recklessly to mean that you are aware of and consciously disregard a substantial and unjustifiable risk that conduct will result in physical injury. The risk must be of such nature and degree that disregarding it is a gross deviation from what a reasonable person would do in the situation.

This means that you are aware of but choose to ignore a dangerous risk that your actions will cause physical injury to another person. And a reasonable person in your shoes would not have ignored such a dangerous risk. Vehicular assault involves the same type of reckless behavior that can result in vehicular manslaughter charges when someone dies, rather than gets injured, in the car accident. For example, driving under the influence (DUI), criminal speeding, aggressive driving, drag racing, or texting while driving.

  • Example. A person takes a larger dosage of prescription pain medicine, such as oxycodone, than the person is prescribed. While under the influence of the oxycodone, the person drives and causes a car accident. The driver of the other car suffers a broken nose from the car accident. The person’s actions abusing their prescription medication and driving can be considered reckless behavior. This person can be convicted of vehicular assault.

Reasonable Apprehension of Imminent Physical Injury Defined

For vehicular assault, this means that, using your car, you intended to scare another person with the fear of immediate physical injury.

  • Example. A driver sees a person jaywalking. This driver gets annoyed when pedestrians jaywalk and decides to teach this pedestrian a lesson. The driver speeds up and drives their car directly toward the pedestrian and stops the car just before hitting him. The pedestrian sees the car coming and fears getting hit. Even though the pedestrian was never physically hurt, the driver intentionally scared the pedestrian with the threat of immediate physical injury from being hit by a car.

SIDE NOTE: There has to be evidence of the victim’s apprehension of fear or that the victim knew of the danger. So, in the example above, if the pedestrian has headphones on and for whatever reason never notices the car speeding toward him and stopping just short of hitting him. Under these circumstances, the driver has not committed an assault. The pedestrian was unaware of the driver’s actions and was not afraid of the driver hitting him.

Physical Injury Defined

Physical injury means the impairment of a physical condition. Depending on the prosecutor, you could be charged with vehicular assault even when the injury is minor, such as a cut or a bruise. However, prosecutors tend to charge vehicular assault when the injuries are more significant.

  • Common Injuries in Vehicular Assault Cases. Broken bones and anything that requires surgery.
  • Uncommon Injuries in Vehicular Assault Cases. Normally, prosecutors will not charge vehicular assault based on only soft tissue injuries, such as whiplash. But if the soft tissue injury is significant, such as traumatic brain injury, then a charge could be possible.

Serious Physical Injury Defined

Serious physical injury includes physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health, or loss or protracted impairment of the function of any bodily organ or limb.

  • Examples. Broken bones or dislocations that require more time to heal than the healing time of a normal fracture; an amputated foot, leg, or arm; eye damage that causes double vision and surgery.

Dangerous Instrument Defined

A dangerous instrument is anything that is readily capable of causing death or serious physical injury under the circumstances in which it is used. A car is considered a dangerous instrument when used under circumstances that are readily capable of causing death or serious physical injury.

  • Example. when you drive a car under the influence of alcohol or at criminal speeds, you transform a car from an instrument of transportation to an instrument that can cause death or serious physical injury.

Aggravated vehicular Assault

Charges Under Serious Physical Injury vs Dangerous Instrument

When there is serious physical injury it is up to the prosecutor to charge the vehicular assault under the law requiring serious physical injury or the law requiring use of a dangerous instrument. You will definitely see the crime charged both ways.

Often, the prosecutor will choose to charge the crime under the law requiring the use of a dangerous instrument. This is because sometimes whether an injury is serious under the law is not as clear cut and needs a lot of expert testimony from the victim’s doctor. Unfortunately, it can often get worse:

  • Injury as an Aggravating factor. Instead, what the prosecutor will often do is charge the crime under the law requiring the use of a dangerous instrument and allege the serious physical injury as an aggravating factor. If a person is found guilty of the vehicular assault, then the prosecution presents evidence that the victim had serious physical injury. If the jury finds that the prosecutor has proven the aggravating factor of serious physical injury, then a defendant can receive a harsher punishment. The prosecutor still has to prove the serious physical injury beyond a reasonable doubt, but by then the prosecution has already gotten a conviction for the vehicular assault.

Vehicular Assault Penalties

In Arizona, vehicular assault penalties are serious as the crime is charged as a Class 3 Dangerous Felony. When determining the vehicular assault penalties, the sentencing judge first starts by considering the presumptive term of 7.5 years in prison.

  • 5 years in prison and go up to a maximum sentence of 15 years in prison.

SIDE NOTE: Arizona charges vehicular assault as a dangerous felony. An offense is a dangerous offense if it involved the use of a dangerous instrument. As described above, a car is a dangerous instrument when it is used in way that it is readily capable of causing death or serious physical injury. If the prosecution proves that your car was a dangerous instrument, then you face mandatory prison as a sentence. This means that even if you have never before committed a crime, you cannot be placed on probation and must be sentenced to prison.

If you have no prior criminal record and the prosecution does not charge the crime as a Dangerous Offense (or is unable to prove that the offense was Dangerous), then you could be sentenced to:

  • Probation, with anywhere from 0 days in jail to 12 months in jail; or
  • From 2 to 8.75 years in prison, with a presumptive term of 3.5 years in prison.

Other Vehicular Assault Penalties

In addition to the penalties imposed by the court, if convicted of vehicular assault, you can also expect:

  • Professional License Issues. Mandatory reporting of a charge of vehicular assault is common for most professional licenses. A conviction will normally mean suspension or revocation of a professional license.
  • Background Check.   Because vehicular assault is both a felony and a dangerous offense, those convicted of the crimes will normally face significant issues in instances of background checks. Prohibitions on employment opportunities, renting and mortgaging property and travel are commonplace.
  • Driver License Revocation. If you are convicted of vehicular assault, then MVD will revoke your driver license for 3 years. A.R.S. §§ 28-3304, 28-3315. After this 3-year revocation period has ended, you must apply to have your driving privileges reinstated. Your driving privileges are not automatically reinstated after the 3 years. You must complete a Revocation Application (also referred to as an Investigation Packet) with MVD and pay a reinstatement fee. Also, you must have fulfilled any other court or MVD conditions, such as payment of fines and restitution and completion of traffic survival school.

Defenses to Vehicular Assault

Various defenses can apply to your case. What defenses to raise depends on the facts of your specific case and how you were charged. Common defenses to Vehicular Assault include:

  • Poor Investigation. The most common defense for all types of cases is to attack the quality and reliability of the evidence used against you.
    • Did the police leave important facts out of their reports?
    • Was accident reconstruction done? If not, why not?
    • If accident reconstruction was done, then was it done properly?
    • Did the police mark and consider all appropriate roadway evidence?
    • If the prosecution is using DUI evidence against you, then how reliable were their testing procedures and were their test results inaccurate?
    • If there are eyewitnesses, who did the police choose to interview? Who did they not interview?
  • Not the Cause of the Injury. The main defense to vehicular assault is that your actions did not cause the injuries. For example, you argue that it was not your speeding or DUI that caused the accident. Instead, maybe your drunk passenger pulled on your steering wheel causing you to swerve or maybe the other car caused the accident by running a red lights or failing to yield.
  • Superseding Intervening Cause. If the other cause of the injury was unforeseeable and out of the ordinary, then the other cause could be called a superseding intervening event.
    • Example. The passenger side airbag goes off in your car due to a mechanical defect and startles you, causing you to hit another car. Your defense is that the airbag caused the accident and not your reckless actions. If there was a superseding intervening event, then the judge gives an extra jury instruction about the prosecution having to prove beyond a reasonable doubt that a superseding intervening event did not cause the injury.
  • Not Reckless. Another common defense is to attack the evidence being used to show that you acted recklessly. For example, maybe the police’s accident reconstruction is faulty, or the crime lab did not properly test your blood alcohol concentration. You can also argue that your behavior did not rise to the level of recklessness—that a reasonable person could have done the same thing in your shoes. This was an accident, not a crime.
  • Car Not a Dangerous Instrument. Depending on your actions, you may also be able to argue that your actions did not transform your car into a dangerous instrument.
  • Not Serious Physical Injury. For this defense, you argue that the injury does not rise to the level of a serious physical injury as described by law. Most often, you argue that even though the injury was substantial, it was only a temporary injury or an ordinary fracture. This will drop the crime down from a Class 3 Felony to a Class 4 Felony, with less serious penalties.

DUI with Injury vs Vehicular Assault

Any DUI with injury or DUI with great bodily injury could be charged as Vehicular Assault. You can expect that a DUI with great bodily injury is going to be charged as Vehicular Assault. A DUI with great bodily injury will be charged as Aggravated Assault based on either causing serious physical injury or using a car as a dangerous instrument.

On the other hand, whether a DUI with injury is charged as Vehicular Assault depends on the nature of the injury, who the prosecutor is, and what county the prosecutor is in. A DUI with injury will be charged as Aggravated Assault based on using a car as a dangerous instrument.

dui with injury

Attorneys Experienced in Handling Vehicular Assault Cases

Vehicular assault is a serious charge that involves a lot of technical issues. The attorneys at Feldman & Royle have extensive experience defending clients charged with all manner of vehicular crimes and have successfully defending many vehicle assault cases both in plea negations and at trial. We can help you navigate the complex issues involved in these types of charges and develop the best defense strategy for your case. Call now for a free consultation.

Frequently Asked Questions (FAQs)

What is vehicular assault?

  • Vehicular assault is a crime charged when a person, using a car, intentionally, knowingly, or recklessly causes someone else to get injured. It is also when a person uses a car to intentionally scare someone with the threat of harm. Vehicular Assault is most commonly charged based on an allegation that a person was driving under the influence of alcohol or drugs and caused an accident that hurt someone else.

What is the penalty for vehicular assault?

  • After trial, the penalty for vehicular assault is typically prison—from 5 to 15 years in prison. Even if a person has no criminal record, prison is usually mandatory because prosecutors charge Vehicular Assault as a dangerous offense. This means that they allege that a person’s car was used as a dangerous instrument, which legally takes probation off the table.

What class felony is vehicular assault?

  • Vehicular assault is a Class 3 Felony. And it is normally charged as a Class 3 Dangerous Felony. This means that the prosecutor alleges the car to be a dangerous instrument and makes prison the only possible sentence.

Is aggravated vehicular assault a felony?

  • Yes, aggravated vehicular assault is a felony. What makes the misdemeanor assault become a felony is that the assault is aggravated (or made worse) by the fact that either:
    1. The injury caused was a serious physical injury, or
    2. A dangerous instrument (a vehicle) was used.