S T A T E   O F   N E W   Y O R K
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                                  5804

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 20, 2009
                               ___________

Introduced  by M. of A. PRETLOW -- Multi-Sponsored by -- M. of A. CLARK,
  DINOWITZ, GALEF, GLICK, HIKIND, HOOPER, HOYT, SEMINERIO --  read  once
  and referred to the Committee on Transportation

AN ACT to amend the vehicle and traffic law, in relation to the criminal
  penalties for operating a motor vehicle under the influence of alcohol
  or  drugs  and  providing  for impoundment of the vehicle driven while
  under the influence of alcohol or drugs

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Paragraphs (a) and (b) of subdivision 1 of section 1193 of
the vehicle and traffic law, paragraph (a) as amended by chapter  75  of
the laws of 1994 and paragraph (b) as amended by chapter 669 of the laws
of 2007, are amended to read as follows:
  (a)  Driving while ability impaired. A violation of subdivision one of
section eleven hundred ninety-two of this article  shall  be  a  traffic
infraction  and  shall  be  punishable  by a fine of not less than three
hundred dollars nor more than five hundred dollars or by imprisonment in
a penitentiary or county jail for not  more  than  fifteen  days  OR  BY
IMPOUNDMENT  OF THE VEHICLE USED IN THE OFFENSE FOR A PERIOD OF NOT MORE
THAN FIFTEEN DAYS, or by both such fine and imprisonment OR BY BOTH SUCH
FINE AND IMPOUNDMENT.  A person who operates a vehicle in  violation  of
such  subdivision  after  having  been  convicted  of a violation of any
subdivision of section eleven hundred ninety-two of this article  within
the  preceding  five  years shall be punished by a fine of not less than
five hundred dollars nor more than seven hundred fifty  dollars,  or  by
imprisonment  of  not  more than thirty days in a penitentiary or county
jail OR BY IMPOUNDMENT OF THE VEHICLE USED IN THE OFFENSE FOR  A  PERIOD
OF NOT MORE THAN THIRTY DAYS or by both such fine and imprisonment OR BY
BOTH  SUCH  FINE  AND  IMPOUNDMENT.   A person who operates a vehicle in
violation of such subdivision after having been convicted  two  or  more
times  of a violation of any subdivision of section eleven hundred nine-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07974-01-9
              

A. 5804                             2

ty-two of this article within the preceding ten years shall be guilty of
a misdemeanor, and shall be punished by a fine of not  less  than  seven
hundred  fifty  dollars  nor  more  than  fifteen hundred dollars, or by
imprisonment  of not more than one hundred eighty days in a penitentiary
or county jail OR BY IMPOUNDMENT OF THE VEHICLE USED IN THE OFFENSE  FOR
A PERIOD OF NOT MORE THAN NINETY DAYS or by both such fine and imprison-
ment OR BY BOTH SUCH FINE AND IMPOUNDMENT.
  (b)  Driving  while  intoxicated or while ability impaired by drugs or
while ability impaired by the combined influence of drugs or of  alcohol
and any drug or drugs; aggravated driving while intoxicated; misdemeanor
offenses.  A  violation  of  subdivision  two,  three, four or four-a of
section eleven hundred ninety-two of this article shall be a misdemeanor
and shall be punishable by a fine of not less than five hundred  dollars
nor more than one thousand dollars, or by imprisonment in a penitentiary
or county jail for not more than one year OR BY IMPOUNDMENT OF THE VEHI-
CLE  USED  IN  THE OFFENSE FOR A PERIOD OF NOT MORE THAN ONE YEAR, or by
both such fine and imprisonment OR BY BOTH SUCH FINE AND IMPOUNDMENT.  A
violation  of  subdivision two-a of section eleven hundred ninety-two of
this article shall be a misdemeanor and shall be punishable by a fine of
not less than one thousand dollars  nor  more  than  two  thousand  five
hundred  dollars or by imprisonment in a penitentiary or county jail for
not more than one year, or by both such fine and imprisonment. In  addi-
tion  to  the imposition of any fine or period of imprisonment set forth
in this paragraph, the court shall require that any person who has  been
convicted  of a violation of subdivision two-a of section eleven hundred
ninety-two of  this  article  and  who  is  sentenced  to  a  period  of
probation, to install and maintain, as a condition of such probation and
in  accordance with section eleven hundred ninety-eight of this article,
a functioning ignition interlock device in any vehicle owned or operated
by the person during the term of such probation; provided, however,  the
court  may  not authorize the operation of a motor vehicle by any person
whose license or privilege to operate a motor vehicle has  been  revoked
pursuant to the provisions of this section.
  S  2.  Subdivision 1 of section 1193 of the vehicle and traffic law is
amended by adding a new paragraph (g) to read as follows:
  (G) NO SENTENCE OF IMPOUNDMENT MAY BE IMPOSED PURSUANT TO THIS  SUBDI-
VISION UNTIL THE OWNER OF THE MOTOR VEHICLE USED IN THE OFFENSE HAS BEEN
NOTIFIED THAT IMPOUNDMENT MAY BE ORDERED AND THEY ARE GIVEN A REASONABLE
OPPORTUNITY  TO  DEMONSTRATE WHY SUCH SENTENCE SHOULD NOT BE IMPOSED. IN
EXERCISING ITS SENTENCING DISCRETION IN ANY CASE WHERE THE OWNER OF  THE
MOTOR  VEHICLE USED IN THE OFFENSE IS NOT THE DEFENDANT, THE COURT SHALL
CONSIDER (1) THE DUE DILIGENCE EXERCISED BY THE  OWNER  TO  PREVENT  THE
UNLAWFUL  USE  OF  THE MOTOR VEHICLE BY THE DEFENDANT, AND (2) THE UNDUE
HARDSHIP TO THE OWNER IN THE EVENT OF A SENTENCE OF IMPOUNDMENT.
  S 3. The vehicle and traffic law is amended by adding  a  new  section
1193-a to read as follows:
  S  1193-A.  IMPOUNDMENT AND REDEMPTION OF VEHICLES. 1. WHEN A SENTENCE
OF IMPOUNDMENT IS IMPOSED BY THE COURT PURSUANT TO  SUBDIVISION  ONE  OF
SECTION  ELEVEN  HUNDRED  NINETY-THREE  OF THIS ARTICLE, THE OWNER SHALL
SURRENDER THE VEHICLE USED IN THE OFFENSE TO AN  OFFICER  OF  THE  LOCAL
AUTHORITY, WHO SHALL REMOVE OR ARRANGE FOR THE REMOVAL OF THE VEHICLE TO
A  GARAGE,  AUTOMOBILE  POUND,  OR  OTHER PLACE OF SAFETY WHERE IT SHALL
REMAIN IMPOUNDED FOR THE TIME IMPOSED BY THE SENTENCING COURT. THE VEHI-
CLE SHALL BE ENTERED INTO THE  NEW  YORK  STATEWIDE  POLICE  INFORMATION
NETWORK AS AN IMPOUNDED VEHICLE.

A. 5804                             3

  2.  A  MOTOR VEHICLE SO IMPOUNDED SHALL BE IN THE CUSTODY OF THE LOCAL
AUTHORITY AND SHALL NOT BE RELEASED UNTIL:
  (A) THE EXPIRATION OF THE IMPOUNDMENT PERIOD IMPOSED BY THE SENTENCING
COURT.
  (B) PAYMENT HAS BEEN MADE FOR THE REASONABLE COSTS OF REMOVAL, STORAGE
AND PROCESSING OF THE MOTOR VEHICLE. THE REGISTERED OWNER OF THE VEHICLE
SHALL  BE  RESPONSIBLE FOR SUCH PAYMENT PROVIDED, HOWEVER, THAT IF HE OR
SHE WAS NOT THE OPERATOR AT THE TIME OF THE OFFENSE HE OR SHE SHALL HAVE
A CAUSE OF ACTION AGAINST SUCH OPERATOR TO RECOVER SUCH COSTS.
  (C) WHERE THE MOTOR VEHICLE WAS OPERATED BY A PERSON WHO AT  THE  TIME
OF  THE  OFFENSE  WAS  THE OWNER THEREOF, SATISFACTORY EVIDENCE THAT THE
REGISTERED OWNER OR OTHER PERSON SEEKING TO REDEEM  THE  VEHICLE  HAS  A
LICENSE OR PRIVILEGE TO OPERATE A MOTOR VEHICLE IN THIS STATE.
  3.  IF  FIFTEEN  DAYS  HAVE ELAPSED FROM THE EXPIRATION OF THE TERM OF
IMPOUNDMENT IMPOSED BY THE SENTENCING COURT, AND THE MOTOR  VEHICLE  HAS
NOT BEEN RELEASED PURSUANT TO SUBDIVISION TWO OF THIS SECTION, THE LOCAL
AUTHORITY SHALL MAKE INQUIRY IN THE MANNER PRESCRIBED BY THE COMMISSION-
ER  AS  TO THE NAME AND ADDRESS OF THE OWNER AND ANY LIENHOLDER AND UPON
RECEIPT OF SUCH INFORMATION SHALL NOTIFY THE OWNER AND  THE  LIENHOLDER,
IF  ANY,  AT  HIS  OR  HER  LAST KNOWN ADDRESS BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, THAT IF THE VEHICLE  IS  NOT  RETRIEVED  PURSUANT  TO
SUBDIVISION  TWO  OF  THIS  SECTION WITHIN THIRTY DAYS FROM THE DATE THE
NOTICE IS GIVEN, IT WILL BE FORFEITED. IF THE VEHICLE WAS REGISTERED  IN
NEW YORK STATE THE LAST KNOWN ADDRESS SHALL BE THAT ADDRESS ON FILE WITH
THE  COMMISSIONER. IF THE VEHICLE WAS REGISTERED OUT-OF-STATE OR WAS NOT
REGISTERED, NOTIFICATION SHALL BE MADE IN THE MANNER PRESCRIBED  BY  THE
COMMISSIONER.
  4.  A MOTOR VEHICLE THAT HAS BEEN IMPOUNDED AND NOT RETRIEVED PURSUANT
TO THE FOREGOING PROVISIONS OF THIS SECTION SHALL BE  FORFEITED  TO  THE
LOCAL  AUTHORITY  UPON  EXPIRATION  OF THE PERIOD OF NOTICE SET FORTH IN
SUBDIVISION THREE OF THIS SECTION. A PROCEEDING TO DECREE  SUCH  FORFEI-
TURE AND TO RECOVER TOWING AND STORAGE COSTS, IF ANY, TO THE EXTENT SUCH
COSTS EXCEED THE FAIR MARKET VALUE OF THE VEHICLE, MAY BE BROUGHT BY THE
LOCAL  AUTHORITY  IN  THE COURT IN WHICH THE DEFENDANT WAS SENTENCED FOR
THE CRIME OF DRIVING WHILE ABILITY IMPAIRED OR DRIVING WHILE INTOXICATED
BY PETITION FOR AN ORDER  DECREEING  FORFEITURE  OF  THE  MOTOR  VEHICLE
ACCOMPANIED  BY  AN AFFIDAVIT ATTESTING TO FACTS SHOWING THAT FORFEITURE
IS WARRANTED. IF THE IDENTITY AND ADDRESS OF THE OWNER AND/OR LIENHOLDER
IS KNOWN TO THE LOCAL AUTHORITY, TEN DAYS NOTICE SHALL BE GIVEN TO  SUCH
PARTY,  WHO  SHALL  HAVE  AN OPPORTUNITY TO APPEAR AND BE HEARD PRIOR TO
ENTRY OF AN ORDER DECREEING FORFEITURE.   WHERE THE COURT  IS  SATISFIED
THAT  FORFEITURE OF A MOTOR VEHICLE IS WARRANTED IN ACCORDANCE WITH THIS
SECTION, IT SHALL ENTER AN ORDER DECREEING THE FORFEITURE OF SUCH  VEHI-
CLE.  PROVIDED,  HOWEVER,  THAT  THE COURT AT ANY TIME PRIOR TO ENTRY OF
SUCH ORDER MAY AUTHORIZE RELEASE  OF  THE  VEHICLE  IN  ACCORDANCE  WITH
SUBDIVISION TWO OF THIS SECTION UPON A SHOWING OF GOOD CAUSE FOR FAILURE
TO  RETRIEVE  SAME  PRIOR  TO  COMMENCEMENT  OF THE PROCEEDING TO DECREE
FORFEITURE, BUT IF THE COURT ORDERS RELEASE  OF  THE  MOTOR  VEHICLE  AS
HEREIN PROVIDED AND THE VEHICLE IS NOT REDEEMED WITHIN TEN DAYS FROM THE
DATE  OF  SUCH ORDER, THE VEHICLE SHALL BE DEEMED TO HAVE BEEN ABANDONED
AND THE COURT, UPON APPLICATION OF THE LOCAL AUTHORITY,  MUST  ENTER  AN
ORDER DECREEING ITS FORFEITURE.
  5. A MOTOR VEHICLE FORFEITED IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION SHALL BE AND BECOME THE PROPERTY OF THE LOCAL AUTHORITY, SUBJECT
HOWEVER  TO  ANY  LIEN THAT WAS RECORDED PRIOR TO THE IMPOUNDMENT OF THE
VEHICLE.

A. 5804                             4

  6. FOR THE PURPOSES OF THIS SECTION, THE TERM "LOCAL AUTHORITY"  MEANS
THE  MUNICIPALITY  IN WHICH THE MOTOR VEHICLE WAS SEIZED; EXCEPT THAT IF
THE MOTOR VEHICLE WAS SEIZED ON PROPERTY OF THE NEW YORK  STATE  THRUWAY
AUTHORITY  OR  PROPERTY  UNDER  THE JURISDICTION OF THE OFFICE OF PARKS,
RECREATION  AND HISTORIC PRESERVATION, THE DEPARTMENT OF TRANSPORTATION,
OR A PUBLIC AUTHORITY OR COMMISSION, THE TERM  "LOCAL  AUTHORITY"  MEANS
SUCH  AUTHORITY, OFFICE, DEPARTMENT, OR COMMISSION. A COUNTY MAY PROVIDE
BY LOCAL LAW THAT THE COUNTY MAY ACT AS THE AGENT FOR A LOCAL  AUTHORITY
UNDER THIS SECTION.
  7.  WHEN  A  VEHICLE  HAS BEEN IMPOUNDED PURSUANT TO THIS SECTION, THE
LOCAL AUTHORITY OR ANY PERSON HAVING CUSTODY OF THE VEHICLE  SHALL  MAKE
THE  VEHICLE  AVAILABLE OR GRANT ACCESS TO IT TO ANY OWNER OR ANY PERSON
DESIGNATED OR AUTHORIZED BY SUCH OWNER FOR THE  PURPOSE  OF  (A)  TAKING
POSSESSION  OF  ANY  PERSONAL  PROPERTY FOUND WITHIN THE VEHICLE AND (B)
OBTAINING PROOF OF REGISTRATION, FINANCIAL SECURITY, TITLE OR DOCUMENTA-
TION IN SUPPORT THEREOF.
  8. UPON APPLICATION BY THE DEFENDANT, THE SENTENCING COURT MAY FASHION
AN ALTERNATIVE METHOD OF DISABLING AND/OR SECURING THE CAR FROM  USE  BY
THE DEFENDANT FOR THE DURATION OF THE IMPOUNDMENT PERIOD.
  9.  ANY PERSON WHO KNOWINGLY FAILS TO SURRENDER A VEHICLE FOR IMPOUND-
MENT PURSUANT TO THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR  PUNISHA-
BLE  BY  A  FINE OF NOT LESS THAN FIVE HUNDRED DOLLARS NOR MORE THAN ONE
THOUSAND DOLLARS, OR BY IMPRISONMENT IN A PENITENTIARY  OR  COUNTY  JAIL
FOR NOT MORE THAN ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT.
  S  4.  This  act  shall  take  effect  immediately  and shall apply to
proceedings commenced on and after such effective date.