Case Initiation on Vehicular Crime Cases

In a Serious New York Vehicular Crime Case, the first thing Thomas Anelli and the Vehicular Team will advise the accused is not to make any statements to law enforcement or to speak about the accident with anyone. Further, in serious injury and death cases Mr. Anelli generally advises his clients not to submit to any tests for intoxication or impairment by alcohol or drugs.

Once Mr. Anelli has accepted the case, he will send notification that he is the accused’s lawyer and that his client has been instructed not to make to any statements or to meet with the investigating police agency, the County’s District Attorney’s Office where the crime was allegedly committed, or the jail custodian or other corrections personnel if the accused is being held. The Vehicular Team will then send a letter to the judge of the the local criminal court with copies of all correspondence so that the local criminal court judge is aware that the individual is represented by Nave DWI Defense Attorneys no court proceedings are to be held without a member of the Team present with the accused.

Mr. Anelli will also be give the client a letter directing him or her to refuse to answer any questions, so that the client has the letter to show to any individual that may still attempt to speak with him or her. The accused is directed not to make any statements, even if they only contain information that would seem to be beneficial (so-called exculpatory statements); because the client does not know what, if any, evidence the prosecution has against him or her.


Cases involving death or serious injury are charged as felony offenses. Because of this they will ultimately be moved to the county court in the county where the accident occurred. Before that happens, however, the accused will be arraigned in the local town or village court that is the site of the accident. This it is the local court judge, prior to the case being indicted and moved to the County Court, who is first charged with the responsibility to set bail. Unfortunately, the local court judge usually relies upon the District Attorney’s recommendation in setting the bail.

Because of this, the amount of bail is usually set before Mr. Anelli and the Vehicular Team are retained. If bail has not been set, Mr. Anelli will request the local court judge set it at once. Nave DWI Defense Attorneys will quickly determine whether or not bail has been set by immediately contacting the authorities at the jail where the client is being held.

If Mr. Anelli feels the bail set is reasonable, he generally arranges with the client to have it posted in the manner and form prescribed. The Vehicular Team will assist the client and the client’s family or friends in doing this. However, when Mr. Anelli believes that the amount of bail set is excessive, he will apply for a Bail Hearing before the judge then presiding over his client’s case.

The Preliminary or Felony hearing

At the lower court level in a Vehicular Homicide case the client is usually given what is called a preliminary or felony hearing. This hearing, which must occur within three days of arraignment when the client is in custody, is to determine whether probable cause exists to believe a felony has been committed. Upon Mr. Anelli’s request for a felony hearing, the prosecution in some instances “rushes” the indictment and indicts the defendant, thus avoiding the discovery of vital information the felony hearing often provides to Mr. Anelli and the Team. In general, the Team never waives a preliminary hearing for this very reason; it frequently provides a wealth of information to the Team useful in the defense of the accused at a very early stage in the case.

The prosecution is aware of how the experienced lawyers at Nave DWI Defense Attorneys can utilize the information. Because of this, the prosecution will generally present as little evidence as possible at a felony hearing, and generally do so by producing a single witness. This is most often one of the arresting officers. It should be noted that, in many cases, the prosecution is able to demonstrate probable cause that a felony has been committed by using only one law enforcement witness.

That said Mr. Anelli extensively cross-examines each and every witness produced by the prosecution. Each witness is questioned in minute detail about the facts establishing the essential elements of the case against the client. Mr. Anelli’s inquiries generally include, but are not limited to, the speed of the clients’ vehicle, observable indicia of the client’s impairment or intoxication, the administration of (and the client’s performance on) the standardized field sobriety tests, and what, if any, action of the decedent may have caused the accident. Each and every factor upon which liability could hinge concerning the accident is carefully explored.

Police officers who investigate accident cases often remember the facts of each case better at hearings than at trial. For this reason Mr. Anelli always has the testimony of the witnesses at hearings transcribed so the officers are unable to vary their testimony at trial. In instances where police officers attempt to change their story to better coincide with the prosecution’s case strategy at trial, Mr. Anelli effectively uses these statements on cross-examination to impeach the officer with his prior inconsistent statements.

Mr. Anelli has never had a client testify at a felony/preliminary hearing for the purpose of having the client contradict the prosecution’s witness. In his opinion, little good can come of this. At the felony/preliminary hearing the judge is not called upon to resolve differences in testimony between the client and the arresting officer, because this is reserved for the jury at trial. If the people can demonstrate probable cause for a felony arrest, the defendant is “bound over” and held in custody or on bail until the client’s case is tried. Conversely, if the People fail to demonstrate probable cause for a felony arrest, the defendant will be entitled to a dismissal.


As soon as Mr. Anelli obtains a copy of the initial accident reports, the MV-104A or the MV-104D (in death cases) he reviews these reports with the client and discusses any discrepancies between the client’s accounts of what happened and the story as contained in the accident reports. Mr. Anelli will then engage the assistance of an investigator to obtain signed statements from the individuals whose names and addresses appear in the reports as witnesses or participants.

When the client’s liability insurer is called upon to defend a civil suit arising out of the accident, Mr. Anelli requests that the client authorize the attorney for the liability insurance carrier to speak with Mr. Anelli so Mr. Anelli can collaborate with the attorneys for the insurer.

Mr. Anelli will generally advise his vehicular homicide clients not to participate in any depositions in the civil case because the client’s answers in the civil deposition can be used against the client at the criminal trial. Mr. Anelli will advise the client to refuse to testify in the deposition on the ground that his answers may incriminate him or her in the pending criminal action.

It should be noted that the client’s refusal to participate in civil depositions may cause a loss of the civil suit, even if the client has refused to testify because his answers might incriminate him. That having been said, it is important to focus on the liability in the criminal case, which often includes the possibility of many years of incarceration in a state prison.

The Prosecution

Generally, police respond quickly to vehicular homicide cases. In most cities and towns with ample police personnel, police will arrive at the scene of an automobile accident shortly after its occurrence. Police findings are generally reported to the prosecutor quickly in vehicular homicide cases, and the prosecutor may even visit the scene during the evidence gathering process.

In vehicular homicide cases there are pieces of evidence that must be recorded and preserved before they disappear. Where the accused is charged with driving while intoxicated, the police must obtain a chemical test of the accused’s blood quickly, because the weight of such evidence diminishes over time. Often in death or serious injury cases, the prosecutor will obtain a scientific determination of the driver’s sobriety even if there seems to be little evidence that the driver was intoxicated.

The District Attorney’s accident reconstruction expert will generally be permitted to testify in vehicular homicide prosecutions that, in his opinion, the collision at issue could not have happened in any way other than that to which he has testified.

An expert’s reconstruction process, and the scientific process upon which it relies, can be explained by experts in a way that lay jurors would not be able to determine or understand themselves, without some specialized experience or knowledge. For this reason, Mr. Anelli and attorney members of his team have completed some of the same training that police experts have in the areas of accident reconstruction and forensic toxicology. This allows Mr. Anelli and the Team to effectively cross-examine prosecution witnesses against their clients, and to adequately prepare and cooperate with expert witnesses on behalf of the accused.

The Client’s Statement

The investigating officer will interrogate the accused in a highway fatality as soon as possible after the accident. At the start of such interrogation, the accused must be fully informed of his right to counsel and his right to remain silent. Too often, recorded oral confessions or signed statements are given by defendants who have been told the consequences they face will be substantially lighter if they cooperate and give up their rights to counsel and to remain silent. This happens when the client is under the most severe stress of his or her life, having just been told another motorist in the accident is seriously injured or deceased.

In light of these stressful conditions, individuals charged with a serious vehicular crime are anxious to tell their story, and it is legal for a prosecutor or investigating officer to make himself available to an accused who is willing to talk, provided the accused has been advised of his right to counsel, his right to remain silent, and that anything he says may be used against him.

Often these types of statements, taken at this stressful time, can be the difference between conviction and acquittal. Because of the chaotic surroundings that most often accompany a scene of a fatal accident, Mr. Anelli and the Team will carefully analyze all circumstances under which any statement was given by the client. The Team will hold the prosecutor to his burden of proving the voluntariness of these statements, and of verifying that the accused knowingly waived his right to counsel and talked to the police. All legal and good faith challenges to each and every statement will be raised by the Team, not just at trial, but at every stage of the proceeding.

The Client’s Intoxication

If Mr. Anelli is called in quickly after the accident (within a few hours) he will order an independent test of the client’s blood to determine if his client was intoxicated at the time of the accident. The results of a blood-alcohol test performed at Mr. Anelli’s request, if unfavorable, can generally be kept from the prosecution as attorney work-product. This is an accepted and legal defense, because the rules of evidence protect “attorney work product” from disclosure to the opposing side.

Mr. Anelli will make certain a qualified expert performs the test. This independent test (if the results are favorable) will assist Mr. Anelli and eth Team at trial in proving the client’s innocence, and the expert’s conclusions can be strengthened by the expert’s personal observations of the accused (only a few hours after the accident).

In the event the test results are not clearly beneficial (demonstrating the client was sober at the time of the accident), the expert’s favorable observations may be used to offset otherwise questionable blood-alcohol content.

The Vehicles in the Accident

Mr. Anelli will immediately have his client’s vehicle examined for possible mechanical defects, and will preserve the evidence of defect with photographs and expert reports. He will also make notes, measurements and photographs that will memorialize and record the damage to the client’s vehicle. This information and documentation will be used in conjunction with expert accident reconstruction to determine factors such as the vehicle’s speed, braking abilities and the point of impact of the collision.

Initial Interview with the Client

The Team’s training and experience and the time Mr. Anelli takes to thoroughly interview his client are foundational to the preparation of a successful defense. Ideally, this interview and eth Team’s involvement begin as soon after the accident as possible. In the interview process, Mr. Anelli diligently walks the client through everything that happened before, during, and after the accident, uncovering every detail upon which liability can hinge. During the initial session, Mr. Anelli will encourage the client to discuss everything concerning the accident, whether or not the client feels it is relevant, and the Team takes extensive notes memorializing everything the client says. The aim of Mr. Anelli and the Team at this stage of the case is to note each and every fact that lends itself to the legal defenses that must be explored and implemented.

Extensive experience and training allow Mr. Anelli to draw the client’s particular attention to critical points of the case throughout the initial interview. Some items explored include; where the client was immediately before the accident, where the client was driving to, what the client had to eat or drink, noting particularly any alcohol, recreational, over-the counter or prescription drugs the client had in his or her system, and at what time and in what amount alcohol or other substances were ingested.

By way of example, topics addressed by Mr. Anelli and the Team at the initial interview of a client in a vehicular homicide case include:

  1. Name and address of the client;
  2. Telephone number and other means of direct communication;
  3. Age of the client;
  4. Marital status of the client;
  5. Prior arrests of the client;
  6. Prior convictions of the client; 

  7. Date and time of accident in question;
  8. Location of accident;
  9. Destination of the client at the time of accident;
  10. Time the client was due at the intended destination; 

  11. The client’s activities during the 24-hour period prior to the accident;
  12. The precise amount, type, and time of consumption of alcoholic beverages consumed by the accused during the 24-hour period prior to the accident,
  13. The precise amount, type, and time of consumption of all recreational, over the counter, or prescribed drugs or medication consumed by the client during the 24-hour period prior to the accident,
  14. What (if any) physical disability, medications, alcohol, or recreational drugs the client ingested that may have affected his ability to drive, or his performance on any tests the client was given;
  15. Names, addresses, and relationship of all the persons whom the client dealt with during the 24-hours period prior to the accident.
  16. Specific details of the manner in which the accident occurred, from the client’s perspective;
  17. The client’s recollection of the roadway conditions and weather conditions present at or near the scene of the accident (this will be photographed and otherwise documented by the Team);
  18. The client’s recollection of the lighting systems present at or near the scene of the accident (this will be photographed and otherwise documented by the Team);
  19. The client’s recollection of any and all traffic control signals and the layout of the roadway at and near the scene of the accident (this will be diagramed, photographed and otherwise documented by the Team);
  20. The client’s recollections of any distinguishing marks or features of the client’s vehicle and of any other vehicles involved in the accident, noting particular make, model, location, and possible mechanical defects of any automobiles involved the accident (this will be photographed and otherwise documented by the Team);
  21. The client’s recollection of the standard field sobriety tests the client performed together with any physical disability or medication that may have affected his or her performance on any such test;
  22. The client’s recollections of any other test the client performed or were administered to the client at the accident scene, the police station or hospital;
  23. Whether or not the client was asked to take a preliminary breath test at the accident scene, and whether a blood, breath or urine test was taken, at what time, at what location, by whom, and in what manner;
  24. The client’s recollection of the clients injuries from the accident (these will be photographed and documented by the Team);
  25. The client’s recollection of his or her driving record, in New York or in any other jurisdiction, noting particularly any matters that will affect or aggravate the client’s liability (the Team will acquire from the DMV and review with the client a copy of his or her New York State “Abstract of Driving record”).

The Charges Against the Client

The prosecutor will decide what charge or charges will be leveled against the client. The prosecutor will generally determine what he or she feels are the appropriate charges after reviewing the case with the arresting and investigating police personnel. These charges may become greater, or lesser, upon further factual or scientific investigation.

Death Cases in New York State

In New York State, all crimes that involve, “conduct which causes the death of a person” are covered in Section 125.00 of the Penal Law. Thus all offenses in Penal Law section 125 are similar in that all result in the same ultimate harm: death.

In determining the severity of punishment for each offense, a major factor that is considered is “the offender’s culpability for that harm.” The term culpability refers to how deserving of blame a person is, in other words, what is the degree of “wrongness” that can be ascribed to the act of the accused in bringing about the death. In the law, the greater the culpability (blame), the greater the punishment, especially in regards to offenses where the ultimate harm is the same.

Of particular note to those charged with Vehicular Homicide, are the revisions to the Penal Law enacted in 2005 under the title “Vasean’s Law.” The effect of these revisions is that it is much easier for a prosecutor to charge a driver with this serious felony offense. Indeed, the intent of the Legislature was that any motorist who was driving while intoxicated and was involved in an accident involving a death could be charged based solely on his or her intoxication. It would not matter if a sober person in the exact same situation would not have been able to avoid the accident. Nor would it matter that the motorist had no prior criminal record whatsoever. He or she would now face years in state prison based solely on the fact that he or she was intoxicated when the accident occurred.

These revisions in New York Law have made it all the more imperative that an individual charged with Vehicular Homicide be represented by Mr. Anelli and his Team. The Team has researched the statute and the surrounding court decisions extensively. Hundreds of hours of legal research have been devoted to understanding and challenging these new laws so that each client of Nave DWI Defense Attorneys is provided a cutting edge defense that incorporates up to the minute research of each case throughout New York that may touch upon the revised laws in even the slightest way.

We are confident that Thomas Anelli and his team bring to this issue the latest and deepest understanding of what you as a prospective client charged with these serious crimes face, and what needs to be done at every stage of the proceeding to challenge the charges against you and win for you the most favorable outcome.