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What Are The Common Defenses Available In A Vehicular Homicide Case?


It is very similar to a DWI case; the prosecution has to prove that you were operating the vehicle, that you were operating the vehicle while intoxicated, that you were operating the vehicle and were responsible for an accident and, as a result of that accident, the passenger or another person was seriously injured.  Within that, you go through a step-by-step DWI analysis of the case. Interestingly enough, there are defenses available to you in an assault by auto or a vehicular homicide case, that are not available in a DWI case in the municipal court.

One defense, and probably the most important, is called retrograde extrapolation, and what happens is, you may get pulled over and, for whatever reason, it may take 40 minutes or an hour to get to the station, so they can take the Alco-test or to take blood; there may be a problem with the first machine, so you have to go to a second police station, which means it may be an hour and a half after being pulled over and then you get a 0.08, which is right on the borderline or maybe even a little higher. The question then becomes, were you actually an 0.06 at the time, and did the passage of time cause your level of intoxication to go up, perhaps because you had a drink just before leaving the bar” If so, you would have not been at the level of intoxication that violates the statute.

The prosecution may try to claim that you may have been at a 0.11 but that hour and a half gave you a chance to sober up, but in a standard DWI case, they cannot argue it.  The only questions are, when you took the test, were you intoxicated beyond the per se level of 0.08 and was it within a reasonable time of the stop?  In an assault by auto or vehicular homicide case, the retrograde extrapolation defense is available, and you can prove through expert testimony that at the time of the event that you had a different BAC, but you are not permitted to argue that in a garden variety DWI case.

If you can show that the BAC at the time of the stop would have been lower, below the statutory level, or you can argue that something else affected your BAC, like diabetes or Atkins diet; something that would have inflated your blood alcohol above a 0.08 in a traffic case, it’s simply were you above a 0.08 within a reasonable time of the stop.  With the more serious charges, you have additional defenses.

What Are the Potential Penalties For Vehicular Homicide or Auto-Assault in New Jersey?

A vehicular manslaughter case is ordinarily charged as a second degree crime that carries a prison sentence of 5-10 years and a fine of up to $150,000, although it can also be charged as a first degree crime, which can bring up to 20 years in jail; a great example of this is Amy Locane, an actress who was on Melrose Place and who was tried in Somerville in 2013.

She ended up receiving a sentence of five years in jail, but the family was actually incensed that she only received that amount of time. She was eligible for parole after two and a half years, but that wasn’t Somerville; the case involved a famous person and she still went to jail at the end of her case. These are cases in which we try to do our best to keep the client out of jail, no matter who they are, but if someone is killed as a result of their intoxication, they will go to jail.

Are These Considered as Felony Charges?

In New Jersey, we don’t use the term felony, which confuses people sometimes, but we have disorderly person’s offenses and then we have criminal indictable charges like these, which is the same as a felony. Assault by auto and vehicular homicide cases are chargeable as felonies and pretty high felonies with a presumption of incarceration.

For more information on Defenses In Vehicular Homicide Cases, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (908) 210-9755 today.

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