A person can be charged with vehicular manslaughter in the 1st degree, in violation of N.Y. penal law section 125.13 if the defendant commits vehicular manslaughter in the 2nd degree as defined below and has one of the following aggravating factors:

  1. a blood alcohol content of.18 or higher.
  2. while their driver’s license is suspended or revoked because of a prior alcohol or drug related driving offense or a refusal to submit to a chemical test.
  3. has previously been convicted of DWAI, DWI or Driving while ability impaired by drugs within the preceding ten years;
  4. causes the death of more than 1 person.
  5. a prior manslaughter conviction or a prior conviction of vehicular assault (link to page)
  6. commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child.