Sentencing and the Severe Potential Penalties Associated With Aggravated Vehicular Assault
If you have been charged with Aggravated Vehicular Assault in Ohio, you need an attorney who can help fight the accusations that have been made against you or work to mitigate the potential consequences you face at sentencing.
What Is Aggravated Vehicular Assault?
Under Ohio Revised Code (O.R.C.) section 2903.08, Ohio’s aggravated vehicular assault statute reads:
No person, while operating or participating in the operation of a motor vehicle, motor snowmobile, locomotive, watercraft, or aircraft, shall cause serious physical harm to another person or another’s unborn…[a]s the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code or a substantially equivalent municipal ordinance.
This means if an individual is driving impaired, and as a result causes serious physical harm to another, the individual will be charged with aggravated vehicular assault. It is important to note that there is a difference in the law between “physical harm” and “serious physical harm.” Please be sure to speak with a competent and experienced criminal defense attorney to determine whether you have an argument that the harm caused did not rise to the level of serious physical harm.
Sentencing Guidelines and Mandatory Minimum Sentences for Aggravated Vehicular Assault
Aggravated vehicular assault is a third-degree felony and carries with it a mandatory minimum one year prison term and a potential range of prison between 1-5 years – any time imposed is mandatory time. The judge is required to suspend the defendant’s driver’s license for at least 2 years and could suspend the license for 10 years.
Aggravated vehicular assault is elevated from a third-degree felony to a second-degree felony if any of the following apply:
- At the time of the offense, the individual was driving under a suspended driver’s license.
- The individual had previously been convicted of or pled guilty to a violation of aggravated vehicular assault or vehicular assault.
- The individual had previously been convicted of or pled guilty to any traffic-related homicide, manslaughter, or assault offense.
- The individual had previously been convicted of or pled guilty to three or more DUIs.
- The individual had previously been convicted of or pled guilty to a second or subsequent felony DUI.
A second-degree felony is more serious than a third-degree felony. As such, the consequences and mandatory minimum sentencing requirements associated with a second-degree felony aggravated vehicular assault include a mandatory 2 years in prison (up to maximum 8 year prison term) and a mandatory 2 year license suspension. However, if the offender previously has been convicted of or pleaded guilty to vehicular assault or aggravated vehicular assault, any traffic-related homicide, manslaughter, or assault offense, or any traffic-related murder, felonious assault, or attempted murder offense, the individual faces a mandatory minimum 3 year driver’s license suspension and a maximum lifetime driver’s license suspension.
What Must the State Prove in Order to Convict an Individual of Aggravated Vehicular Assault?
For an individual to be found guilty of aggravated vehicular assault, the state must prove beyond a reasonable doubt the individual operated a motor vehicle while under the influence of drugs or alcohol, and as a result caused serious physical harm to another person. In simple terms, this is an OVI resulting in serious physical harm to another person. (Ohio calls all DUI cases “OVI.”)
First, the state must show the individual operated his or her vehicle. Under Ohio law, operation does not mean driving; rather, it means ‘to cause movement.’ While ‘causing movement’ obviously includes driving, driving is not necessary to cause movement. This is hardly ever an issue as nearly every DUI and aggravated vehicular assault charge is associated with the defendant’s driving.
Second, the state must prove the individual was “under the influence.” Under Ohio law, this means the individual consumed alcohol or used some drug that negatively affected the individual’s actions, reaction, or mental processes and stripped the individual of the clear thinking he or she would have possessed at the time had he or she not consumed alcohol or used drugs.
The state can prove the individual is “under the influence” in one of two ways: First, it can show this through circumstantial evidence — for example, the individual’s lack of control of the vehicle; the individual’s poor judgment; the individual’s statements that he or she consumed alcohol or took drugs (whether prescribed or unprescribed); the odor of alcohol coming from the individual; the individual’s slurred speech; the individual’s bloodshot eyes; the individual’s unsteadiness on his or her feet; or the individual’s poor performance of the field sobriety tests. Alternatively, the state can prove the individual was “under the influence” by submitting to a chemical test (blood, breath, or urine) and testing over the legal limit. If this is the case, regardless of whether the individual meets the above definition of being “under the influence,” the law assumes an individual is “under the influence” if the individual tests over the legal limit.
A skilled criminal defense lawyer can spot important facts in the case that may justify filing a motion to suppress (discussed below). On an aggravated vehicular assault charge, an experienced criminal defense lawyer will file a motion to suppress chemical test results to see if the state has properly complied with regulations and rules of law. If the state did not, the test results are compromised, not credible, and should be excluded.
The last thing the state must show is that serious physical harm resulted from the individual’s operating a vehicle while under the influence. Thus, the state must show not only physical harm, but serious physical harm. What is “serious physical harm?” Under Ohio law, the definition of “serious physical harm” is surprisingly broad. It includes:
- Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
- Any physical harm that carries a substantial risk of death;
- Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
- Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
- Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
The state must prove the alleged victim’s injuries fall within one of the above categories. Typically, the state will call a doctor on the stand to show the injuries fall into one of the above categories. The question of whether serious physical harm occurred is a question for the jury. The defense is entitled to put on evidence at trial showing that the harm was not serious physical harm.
Motions to Suppress
Experienced lawyers will always explore the option of filing a motion to suppress evidence in alcohol-related traffic offenses. A motion to suppress filing and subsequent hearing will allow your criminal defense attorney to cross-examine government witnesses to determine whether constitutional rights were violated or regulations and rules of law were not followed. There are many legal grounds to justify filing a motion to suppress. In an aggravated vehicular assault case, if filed, motions to suppress are usually filed to show the arresting officer either: (1) stopped the individual without probable cause to believe a crime was being committed; (2) searched the individual without probable cause to believe a crime was committed; (3) arrested the individual without probable cause to believe he or she committed a crime; or (4) administered a standard field sobriety test or chemical test improperly.
A motion to suppress hearing is not a trial, but it is like a trial in that it can be case-determinative.
Experienced and Successful Criminal Defense Lawyers
Aggravated vehicular assault carries severe consequences. If you or someone you know has been charged with aggravated vehicular assault, it is important to hire a skilled and experienced criminal defense attorney who understands the complex factual and legal issues associated with the case.
If you have any questions, please contact a criminal defense attorney at Rittgers Rittgers & Nakajima. We have offices in Lebanon, Cincinnati, and West Chester, Ohio.