BILL NUMBER:A10917

TITLE OF BILL:  An act to amend the vehicle and traffic law, in relation
to  the  definitions  of the terms "impaired" and "intoxication" for the
purposes of such law

PURPOSE: To codify accepted legal definitions and include alteration  of
physical or mental abilities by known or unknown substances.

SUMMARY OF PROVISIONS: Section 119-b defines impaired in conformity with
the  language of the New York State Court of Appeals ruling in People v.
Cruz, 48 N.Y.2nd 419, (1979).  Section  119-d  defines  intoxication  in
conformity  with  the  language  of  the New York State Court of Appeals
ruling in People v. Cruz, 48 N.Y.2nd 419, (1979) and expands such  defi-
nition  to encompass situations described in the New York State Court of
Appeals ruling in People v. Litto, 8 N.Y.3rd 692, (2007).

JUSTIFICATION: All too often, intoxicated  drivers  who  are  under  the
influence of a substance that has not been placed upon the New York Sate
Public  Health  Law  Schedule  3306 or a substance that cannot be deter-
mined, escape prosecution. Clearly dangerous drivers can  frustrate  the
prosecution  of  their  own  acts by the simple legislatively sanctioned
expedient of refusing a chemical test of their blood breath  and  urine.
If  the driver has no contraband and makes no admissions, the intoxicat-
ing substance ingested will not be known to law enforcement, a condition
precedent to prosecution under  our  current  laws.  Additionally,  some
              

clearly  dangerous  drivers  who  ingest  substances  or combinations of
substances not listed in the Public Health Law  may  not  be  prosecuted
under our current laws.

In January of 2004, after becoming intoxicated from ingesting an aerosol
spray  can  of  "Dust-off',  Vincent Litto veered into oncoming traffic,
killing 18-year-old Kristian Roggio Litto and injuring James Sienna, and
two others.

The defendant was indicted for the crimes of Manslaughter 2~,  Vehicular
Manslaughter  2~,  Criminally  Negligent Homicide, Reckless Endangerment
2~, Reckless Driving, Operating a Motor Vehicle while in an  Intoxicated
Condition;  Assault  2~  (4  counts);  Assault 3~ (4 counts). In June of
2007, the Court of Appeals  of  the  State  of  New  York  affirmed  the
dismissal  of  Vehicular  Manslaughter  2~ and Operating a Motor Vehicle
while in an Intoxicated Condition because Difluoroethane,  the  chemical
propellant  in Dust-Off, is not among substances listed in Public Health
Law 3306.

Chief Judge Judith Kaye wrote that she is mindful that, with the Court's
ruling, there may be circumstances  where  impaired  drivers  can  avoid
punishment  under the law. "If defendant did what the prosecution charg-
es, then his conduct was reprehensible -- his  voluntary  inhalation  of
hydrocarbon  while  driving  resulted  in the death of a young woman and
serious injuries to others," the chief judge wrote. "Perhaps gaps  exist
in  the  law and the prosecution should not have to rely on the 12 other

counts charged. However, a determination by this Court that intoxication
in Vehicle and Traffic Law section  1192(3)  includes  the  use  of  any
substance would improperly override the legislative policy judgment"

There are numerous instances where individuals are arrested because they
were driving while- they were dramatically intoxicated by a drug, to the
point  of  falling  down  and becoming unconscious but because Under the
facts of each individual case, the substance was not identified.

In response to this problem a number of states have enacted  legislation
that allow for the prosecution of a driver who has ingested intoxicating
substances.

LEGISLATIVE HISTORY: 2008 Passed the Senate

FISCAL IMPLICATIONS: None

EFFECTIVE  DATE: This act shall take effect on the first day of November
next succeeding the date on which it shall have become a law.