Vehicular Assault

Recklessness is the core of the offense. It requires more than just speeding. It typically involves a combination of dangerous behaviors that manifest an extreme indifference to the value of human life. 

Factors often cited include:

• Driving at excessive speeds in a pedestrian zone
• Texting or distracted driving while weaving through traffic
• Running red lights or stop signs without attempting to brake
• Driving a vehicle known to be mechanically unsafe

We scrutinize the totality of the circumstances. If the road conditions were poor or if the signage was obscured, we argue that the driver’s actions were a reaction to the environment rather than a reckless choice. We aim to downgrade the conduct from criminal recklessness to ordinary negligence which supports a lesser charge or a civil infraction.

In vehicular assault cases the car itself is legally classified as a deadly weapon. This classification allows prosecutors to seek enhanced penalties similar to those used in gun crimes.

However, we argue that a vehicle is primarily a mode of transportation and not a weapon by design. To prove it was used as a weapon, the state must show that the driver used it in a manner capable of causing death or serious injury. We challenge this by showing that the driver attempted to avoid the collision (such as braking or swerving). Evidence of evasive maneuvers contradicts the theory that the vehicle was being weaponized against the victim.

The prosecution must prove a direct link between the reckless driving and the injury. This is known as proximate cause. If an intervening event occurred (such as the victim jaywalking or another car running a light), the chain of causation may be broken.

We employ accident reconstruction experts to analyze the physics of the crash. If we can demonstrate that the accident would have occurred regardless of the defendant’s speed or conduct due to the victim’s own actions, the vehicular assault charge cannot stand. We fight to prove that the injury was an unfortunate result of an unavoidable accident rather than a criminal act.

The foundation of a DUI-based vehicular assault charge is the blood or breath test. 

• We scrutinize the collection and analysis of these samples.
• Was the blood drawn within the statutory time limit?
• Was the breathalyzer machine properly calibrated and maintained?
• Did the phlebotomist follow sanitary protocols to prevent fermentation?
• Was the chain of custody preserved perfectly?

If we can suppress the chemical test results or cast doubt on their accuracy, the presumption of recklessness evaporates. We use forensic toxicologists to testify about rising blood alcohol defense (arguing that the driver was under the limit at the time of driving but over the limit at the time of testing).

Being drunk is not a crime of violence; causing injury is. The prosecution often assumes that if a drunk driver is involved in a crash, it must be their fault. We reject this assumption.

We investigate the other party’s behavior. If the victim ran a stop sign and hit our client, the fact that our client was intoxicated is irrelevant to the cause of the injury. We argue that a sober person would not have been able to avoid the collision either. By decoupling the intoxication from the accident, we can defeat the assault charge even if a DUI conviction remains.

Prosecutors often try to estimate the driver’s blood alcohol content (BAC) at the time of the crash based on a test taken hours later. This process is called retrograde extrapolation.

It is scientifically controversial and prone to error. It relies on assumptions about when the driver stopped drinking and their metabolic rate. We cross-examine the state’s experts to expose the speculative nature of these calculations. We argue that without a scientifically reliable BAC at the time of driving, the state cannot prove the aggravating factor necessary for the assault charge.

We retain industry-leading accident reconstructionists to model the crash. They analyze skid marks, debris fields and vehicle crush depth to determine the true dynamics of the collision.

Police reports are often based on estimates. Our experts use physics and photogrammetry to calculate precise speeds and distances. Often, we find that the police overestimated our client’s speed or failed to account for a visibility obstruction. This scientific rebuttal provides the jury with an alternative explanation for the crash that aligns with the physical evidence.

The Event Data Recorder (EDR) or black box is a critical piece of evidence. It provides a snapshot of the vehicle’s status in the five seconds prior to airbag deployment.

We extract this data to verify the driver’s actions. If the EDR shows that our client applied the brakes 1.5 seconds before impact, it refutes the prosecution’s claim of reckless indifference. It shows a conscious attempt to avoid harm. However, this data is fragile. If the car is repaired or crushed, the data is lost. We send preservation letters immediately to prevent spoliation.

We scour the area for video evidence. This includes traffic cameras, security cameras from nearby businesses and Ring doorbells. Video evidence is the ultimate impartial witness.

We also analyze telematics data from cell phones and GPS systems. This can prove whether the driver was texting at the time of the crash or using a navigation app hands-free. Proving that the phone was locked and not in use creates a powerful defense against distracted driving allegations.

We review the victim’s medical records with our own forensic medical experts. We look for evidence that the injuries are temporary or not life-threatening.

• A clean break of a bone that heals fully may not constitute serious bodily injury in some jurisdictions.
• Soft tissue injuries (whiplash) rarely meet the statutory threshold.
• Scars that are not visible or disfiguring may not qualify.

We argue that while the injuries are unfortunate, they do not meet the strict legal definition required for a felony assault conviction. Reducing the injury classification can drop the charge to a misdemeanor or a lesser felony with significantly reduced penalties.

In many states, a finding of Great Bodily Injury (GBI) adds a mandatory consecutive prison term (often 3 to 5 years) to the underlying sentence. It also classifies the crime as a violent felony which restricts the accrual of good time credits in prison.

We fight these enhancements aggressively. We argue that the GBI enhancement should be stricken if the injury was not the direct result of the defendant’s specific reckless act. We also negotiate to have the GBI enhancement dismissed in exchange for a plea to the underlying charge (saving the client years of actual time in custody).

The emotional weight of the victim’s suffering plays a large role in sentencing. Judges listen to victim impact statements. We prepare our clients to handle this phase with dignity and remorse (without admitting legal liability if the case is ongoing).

Restitution for medical bills can be astronomical. We scrutinize the restitution request to ensure it is limited to economic damages directly caused by the accident. We challenge requests for future speculative earnings or pain and suffering payments which belong in civil court (not criminal court).

The law recognizes that a person confronted with a sudden and unexpected peril (not of their own making) is not expected to exercise the same judgment as one who has time to deliberate.

If a child ran into the road or a tire blew out, our client’s swerve into oncoming traffic was a reaction to an emergency (not an act of recklessness). We assert the sudden emergency defense to instruct the jury that they must judge the driver’s actions based on the split-second crisis they faced. This lowers the standard of care and excuses conduct that might otherwise look negligent.

Sometimes the vehicle is to blame. Brake failure, stuck accelerators or steering malfunctions can cause catastrophic accidents. These failures leave no skid marks and can look like intentional speeding.

We inspect the vehicle’s maintenance history and the wreckage. If we find a defect, we argue that the accident was caused by a mechanical failure that the driver could not have predicted or prevented. This negates the mental state required for the crime. We prove that the driver was a passenger in a runaway vehicle rather than a reckless operator.

The police must follow the Fourth Amendment even at a crash scene. They cannot search a vehicle or seize a phone without a warrant or probable cause. They cannot force a blood draw without a warrant in most non-emergency situations.

We file motions to suppress evidence obtained illegally. If the officer searched the car without a warrant and found open containers, we move to exclude that evidence. If the blood draw was coerced, we move to suppress the toxicology results. Successfully suppressing key evidence often forces the prosecution to dismiss the charges or offer a favorable plea deal.