S T A T E   O F   N E W   Y O R K
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                                  4235

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 2, 2009
                               ___________

Introduced  by  M.  of A. ORTIZ, HOOPER, MAYERSOHN, SEMINERIO, COLTON --
  read once and referred to the Committee on Transportation

AN ACT to amend the vehicle and traffic law, in relation to reducing the
  blood alcohol level threshold for determination  of  intoxication  and
  repealing provisions of such law relating thereto

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

  Section 1.  Subdivision 2 of section 1192 of the vehicle  and  traffic
law,  as amended by chapter 3 of the laws of 2002, is amended to read as
follows:
  2. Driving while intoxicated; per se. No person shall operate a  motor
vehicle  while  such  person has [.08] .06  of one per centum or more by
weight of alcohol in the person's blood as shown by chemical analysis of
such person's blood, breath, urine  or  saliva,  made  pursuant  to  the
provisions of section eleven hundred ninety-four of this article.
  S  2.  Subdivision 6 of section 1192 of the vehicle and traffic law is
REPEALED.
  S 3. Section 1192-a of the vehicle and traffic law, as added by  chap-
ter 196 of the laws of 1996, is amended to read as follows:
  S 1192-a. Operating  a  motor  vehicle  after having consumed alcohol;
under the age of twenty-one; per se. No person under the age of  twenty-
one  shall  operate  a  motor  vehicle  after having consumed alcohol as
defined in this section. For purposes of this section,  a  person  under
the  age  of  twenty-one is deemed to have consumed alcohol only if such
person has .02 of one per centum or more but not more than [.07] .06  of
one  per  centum by weight of alcohol in the person's blood, as shown by
chemical analysis of such person's blood, breath, urine or saliva,  made
pursuant to the provisions of section eleven hundred ninety-four of this
article.  Any  person  who operates a motor vehicle in violation of this
section, and who is not charged with a violation of any  subdivision  of
section  eleven  hundred  ninety-two  of this article arising out of the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07802-02-9
              

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same incident shall be referred to the department for action in  accord-
ance with the provisions of section eleven hundred ninety-four-a of this
article.  Except  as  otherwise  provided in subdivision five of section
eleven  hundred ninety-two of this article, this section shall not apply
to a person who operates a commercial motor vehicle. Notwithstanding any
provision of law to the contrary, a finding that a person under the  age
of  twenty-one operated a motor vehicle after having consumed alcohol in
violation of this section is not a judgment of conviction for a crime or
any other offense.
  S 4. Subparagraph 7 of paragraph (e) of subdivision 2 of section  1193
of  the  vehicle and traffic law, as added by chapter 312 of the laws of
1994, clauses a and a-1 as amended by chapter 732 of the laws  of  2006,
clause b as separately amended by chapters 3 and 571 of the laws of 2002
and  clauses  d  and e as amended by chapter 251 of the laws of 2007, is
amended to read as follows:
  (7) Suspension pending prosecution; excessive blood  alcohol  content.
a.  Except as provided in clause a-1 of this subparagraph, a court shall
suspend a driver's license, pending prosecution, of any  person  charged
with  a  violation of subdivision two, two-a, three or four-a of section
eleven hundred ninety-two of this article who, at the time of arrest, is
alleged to have had [.08] .06 of one percent or more by weight of  alco-
hol  in  such  driver's  blood  as  shown by chemical analysis of blood,
breath, urine or saliva, made pursuant to subdivision two  or  three  of
section eleven hundred ninety-four of this article.
  a-1.  A  court  shall  suspend  a class DJ or MJ learner's permit or a
class DJ or MJ driver's license, pending prosecution, of any person  who
has  been charged with a violation of subdivision one, two, two-a and/or
three of section eleven hundred ninety-two of this article.
  b. The suspension occurring under clause a of this subparagraph  shall
occur  no  later  than at the conclusion of all proceedings required for
the arraignment and the suspension occurring under clause  a-1  of  this
subparagraph shall occur immediately after the holder's first appearance
before  the  court  on the charge which shall, whenever possible, be the
next regularly scheduled session of the court after the arrest or at the
conclusion of all proceedings required for  the  arraignment;  provided,
however,  that  if  the  results  of  any  test administered pursuant to
section eleven hundred ninety-four of this  article  are  not  available
within  such time period, the complainant police officer or other public
servant shall transmit such results to the court at the time they become
available, and the court shall, as soon  as  practicable  following  the
receipt  of such results and in compliance with the requirements of this
subparagraph, suspend such license. In order for  the  court  to  impose
such  suspension it must find that the accusatory instrument conforms to
the requirements of section 100.40 of the  criminal  procedure  law  and
there  exists  reasonable  cause  to  believe either that (a) the holder
operated a motor vehicle while such holder had [.08] .06  of one percent
or more by weight of alcohol in his or her blood as was shown by  chemi-
cal  analysis  of  such  person's  blood,  breath, urine or saliva, made
pursuant to the provisions of section eleven hundred ninety-four of this
article or (b) the person was the holder of a class DJ or  MJ  learner's
permit or a class DJ or MJ driver's license and operated a motor vehicle
while  such holder was in violation of subdivision one, two and/or three
of section eleven hundred ninety-two of this article.  At  the  time  of
such  license  suspension the holder shall be entitled to an opportunity
to make a statement regarding these two issues and to  present  evidence
tending to rebut the court's findings.

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  c.  Nothing  contained  in  this  subparagraph  shall  be construed to
prohibit or limit a court from imposing  any  other  suspension  pending
prosecution required or permitted by law.
  d.  Notwithstanding  any  contrary  provision  of this chapter, if any
suspension occurring under this subparagraph has been in  effect  for  a
period  of  thirty days, the holder may be issued a conditional license,
in accordance with section eleven hundred ninety-six  of  this  article,
provided  the  holder  of  such license is otherwise eligible to receive
such conditional license. A conditional license issued pursuant to  this
subparagraph  shall not be valid for the operation of a commercial motor
vehicle. The commissioner shall prescribe by regulation  the  procedures
for the issuance of such conditional license.
  e.  If  the  court  finds that the suspension imposed pursuant to this
subparagraph will result in extreme hardship, the court must issue  such
suspension, but may grant a hardship privilege, which shall be issued on
a  form prescribed by the commissioner. For the purposes of this clause,
"extreme hardship" shall mean the inability to obtain alternative  means
of  travel to or from the licensee's employment, or to or from necessary
medical treatment for the licensee or a member of the licensee's  house-
hold,  or  if  the  licensee  is  a matriculating student enrolled in an
accredited  school,  college  or  university  travel  to  or  from  such
licensee's school, college or university if such travel is necessary for
the  completion  of the educational degree or certificate. The burden of
proving extreme hardship shall be on the licensee who may present  mate-
rial  and  relevant  evidence.  A finding of extreme hardship may not be
based solely upon the testimony of  the  licensee.  In  no  event  shall
arraignment  be  adjourned or otherwise delayed more than three business
days solely for the purpose of allowing the licensee to present evidence
of extreme hardship. The court shall  set  forth  upon  the  record,  or
otherwise  set forth in writing, the factual basis for such finding. The
hardship privilege shall permit the operation  of  a  vehicle  only  for
travel  to  or  from  the licensee's employment, or to or from necessary
medical treatment for the licensee or a member of the licensee's  house-
hold,  or  if  the  licensee  is  a matriculating student enrolled in an
accredited  school,  college  or  university  travel  to  or  from  such
licensee's school, college or university if such travel is necessary for
the  completion  of  the  educational  degree or certificate. A hardship
privilege shall not be valid for the operation  of  a  commercial  motor
vehicle.
  S 5. Paragraph (b) of subdivision 2 of section 1195 of the vehicle and
traffic  law,  as amended by chapter 153 of the laws of 2003, is amended
to read as follows:
  (b) Evidence that there was more than .05 of one per centum  but  less
than  [.07]  .06 of one per centum by weight of alcohol in such person's
blood shall be prima facie evidence that  such  person  was  not  in  an
intoxicated condition, but such evidence shall be relevant evidence, but
shall not be given prima facie effect, in determining whether the abili-
ty  of  such  person  to  operate  a  motor  vehicle was impaired by the
consumption of alcohol; and
  S 6. Paragraph (c) of subdivision 2 of section 1195 of the vehicle and
traffic law is REPEALED.
  S 7. This act shall take effect immediately;  provided,  however  that
the  amendment  to  subparagraph  7 of paragraph (e) of subdivision 2 of
section 1193 of the vehicle and traffic law made by section four of this
act shall not affect the repeal of such subparagraph and shall be deemed
repealed therewith.