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

                                  2498

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 20, 2009
                               ___________

Introduced  by Sens. VOLKER, DeFRANCISCO, DIAZ, GRIFFO, HANNON, O. JOHN-
  SON, LIBOUS, MORAHAN, PADAVAN,  SEWARD,  STACHOWSKI,  WINNER  --  read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Transportation

AN ACT to amend the vehicle and traffic law, in  relation  to  mandatory
  testing  in the event of a motor vehicle collision resulting in injury
  or death

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

  Section  1. Subparagraphs 1 and 2 of paragraph (a) of subdivision 2 of
section 1194 of the vehicle and traffic law, as amended by  chapter  196
of  the laws of 1996, are amended and a new subparagraph 2-a is added to
read as follows:
  (1) having reasonable grounds to believe  such  person  to  have  been
operating  in  violation  of  any  subdivision of section eleven hundred
ninety-two of this article and within two hours after  such  person  has
been  placed  under  arrest for any such violation; or having reasonable
grounds to believe such person to have been operating  in  violation  of
section eleven hundred ninety-two-a of this article and within two hours
after the stop of such person for any such violation, OR
  (2) within two hours after a breath test, as provided in paragraph (b)
of  subdivision  one  of  this  section, indicates that alcohol has been
consumed by such person and in accordance with the rules and regulations
established by the police force of which the officer is a member[;], OR
  (2-A) HAVING REASONABLE GROUNDS TO BELIEVE SUCH PERSON  TO  HAVE  BEEN
OPERATING A MOTOR VEHICLE IN A MANNER THAT CAUSES SERIOUS PHYSICAL INJU-
RY  AS  DEFINED  IN  SECTION 10.00 OF THE PENAL LAW TO, OR THE DEATH OF,
ANOTHER PERSON AND WITHIN TWO HOURS AFTER SUCH OPERATION WHICH  RESULTED
IN SUCH SERIOUS PHYSICAL INJURY OR DEATH, OR
  S  2. Subdivision 3 of section 1194 of the vehicle and traffic law, as
added by chapter 47 of the laws of 1988, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05205-01-9
              

S. 2498                             2

  3. Compulsory chemical tests. (a) [Court] MANDATORY AND COURT  ordered
chemical  tests.    Notwithstanding the provisions of subdivision two of
this section, no person who operates a motor vehicle in this  state  may
refuse  to  submit  to  a chemical test of one or more of the following:
breath, blood, urine or saliva, for the purpose of determining the alco-
holic  and/or  drug content of the blood when (I) a court order for such
chemical test has been issued in accordance with the provisions of  this
subdivision  OR  (II)  SUCH  PERSON OPERATED A MOTOR VEHICLE IN A MANNER
THAT CAUSES THE DEATH OF ANOTHER PERSON.
  (b) [When] COURT ORDERED CHEMICAL TESTS,  WHEN  authorized.  Upon  (I)
refusal by any person to submit to a chemical test or any portion there-
of  [as  described above] REQUESTED BY A POLICE OFFICER, PURSUANT TO THE
PROVISIONS OF SUBPARAGRAPH TWO-A OF PARAGRAPH (A) OF SUBDIVISION TWO  OF
THIS  SECTION,  HAVING  REASONABLE  CAUSE TO BELIEVE SUCH PERSON TO HAVE
BEEN OPERATING A MOTOR VEHICLE IN A MANNER THAT CAUSED SERIOUS  PHYSICAL
INJURY  TO  ANOTHER  PERSON, OR (II) THE INABILITY OF ANY PERSON TO GIVE
CONSENT TO A CHEMICAL TEST OR ANY PORTION THEREOF REQUESTED BY A  POLICE
OFFICER,  PURSUANT  TO THE PROVISIONS OF SUBPARAGRAPH TWO-A OF PARAGRAPH
(A) OF SUBDIVISION TWO OF  THIS  SECTION,  HAVING  REASONABLE  CAUSE  TO
BELIEVE  SUCH  PERSON TO HAVE BEEN OPERATING A MOTOR VEHICLE IN A MANNER
THAT CAUSED SERIOUS PHYSICAL INJURY TO, OR THE DEATH OF, ANOTHER PERSON,
the test shall not be given unless a police officer or a district attor-
ney, as defined in subdivision thirty-two of section 1.20 of the  crimi-
nal procedure law, requests and obtains a court order to compel a person
to  submit to a chemical test to determine the alcoholic or drug content
of the person's blood upon a finding  of  reasonable  cause  to  believe
that:
  (1)  (A)  such  person  was the operator of a motor vehicle and in the
course of such operation a person other than the  operator  [was  killed
or]  suffered serious physical injury as defined in section 10.00 of the
penal law; and
  [(2) a. either such person operated the vehicle in  violation  of  any
subdivision of section eleven hundred ninety-two of this article, or
  b.  a  breath test administered by a police officer in accordance with
paragraph (b) of subdivision one of this section indicates that  alcohol
has been consumed by such person; and
  (3) such person has been placed under lawful arrest; and
  (4)]  (B)  such person has refused to submit to a chemical test or any
portion thereof, requested in accordance with the provisions of SUBPARA-
GRAPH TWO-A OF paragraph (a) of subdivision two of this section  or  [is
unable to give consent to such a test]
  (2)  (A)  SUCH  PERSON  WAS THE OPERATOR OF A MOTOR VEHICLE AND IN THE
COURSE OF SUCH OPERATION A PERSON OTHER THAN THE OPERATOR WAS KILLED  OR
SUFFERED  SERIOUS  PHYSICAL  INJURY  AS  DEFINED IN SECTION 10.00 OF THE
PENAL LAW; AND
  (B) SUCH PERSON WAS UNABLE TO GIVE CONSENT TO SUCH A TEST.
  (c) Reasonable cause; definition. For the purpose of this  subdivision
"reasonable  cause"  shall  be  determined  by  viewing  the totality of
circumstances surrounding the incident which, when taken together, indi-
cate that the operator was  [driving  in  violation  of  section  eleven
hundred  ninety-two of this article. Such circumstances may include, but
are not limited to: evidence that the operator  was  operating  a  motor
vehicle  in  violation  of  any  provision  of this article or any other
moving violation at the time of the incident; any visible indication  of
alcohol or drug consumption or impairment by the operator; the existence
of  an  open container containing an alcoholic beverage in or around the

S. 2498                             3

vehicle driven by the  operator;  any  other  evidence  surrounding  the
circumstances of the incident which indicates that the operator has been
operating  a  motor vehicle while impaired by the consumption of alcohol
or  drugs  or intoxicated at the time of the incident] OPERATING A MOTOR
VEHICLE AND IN THE COURSE OF SUCH OPERATION  A  PERSON  OTHER  THAN  THE
OPERATOR  WAS  KILLED  OR SUFFERED SERIOUS PHYSICAL INJURY AS DEFINED IN
SECTION 10.00 OF THE PENAL LAW.
  (d) Court order; procedure. (1) An application for a  court  order  to
compel submission to a chemical test or any portion thereof, may be made
to any supreme court justice, county court judge or district court judge
in the judicial district in which the incident occurred, or if the inci-
dent  occurred  in the city of New York before any supreme court justice
or judge of the criminal court of the city of New York. Such application
may be communicated by telephone, radio or  other  means  of  electronic
communication, or in person.
  (2)  The  applicant  must provide identification by name and title and
must state the purpose of the communication. Upon being advised that  an
application for a court order to compel submission to a chemical test is
being made, the court shall place under oath the applicant and any other
person  providing  information in support of the application as provided
in subparagraph three of this paragraph. After being sworn the applicant
must state that the person from whom the chemical test was requested was
the operator of a motor vehicle and in the course of  such  operation  a
person,  other than the operator, has been [killed or] seriously injured
[and, based upon the totality  of  circumstances,  there  is  reasonable
cause  to  believe  that  such  person  was operating a motor vehicle in
violation of any subdivision of section  eleven  hundred  ninety-two  of
this  article]  and,  after being placed under lawful arrest such person
refused to submit to a  chemical  test  or  any  portion  thereof[,]  in
accordance  with  the  provisions  of  this section or is unable to give
consent to such a test or any portion thereof. The applicant  must  make
specific allegations of fact to support such statement. Any other person
properly identified, may present sworn allegations of fact in support of
the applicant's statement.
  (3)  Upon  being advised that an oral application for a court order to
compel a person to submit to a chemical test is being made, a  judge  or
justice  shall  place  under  oath  the  applicant  and any other person
providing information in support of the application. Such oath or  oaths
and all of the remaining communication must be recorded, either by means
of  a  voice recording device or verbatim stenographic or verbatim long-
hand notes. If a voice recording device is used or a stenographic record
made, the judge must have the record transcribed, certify to the accura-
cy of the transcription and file the original record  and  transcription
with  the  court  within  seventy-two hours of the issuance of the court
order. If the longhand notes are taken, the judge shall subscribe a copy
and file it with the court within twenty-four hours of the  issuance  of
the order.
  (4)  If  the court is satisfied that the requirements for the issuance
of a court order pursuant to the provisions of  paragraph  (b)  of  this
subdivision  have  been  met,  it may grant the application and issue an
order requiring the accused to submit to a chemical  test  to  determine
the  alcoholic  and/or  drug content of his blood and ordering the with-
drawal of a blood sample in accordance with the provisions of  paragraph
(a)  of subdivision four of this section. When a judge or justice deter-
mines to issue an order to compel submission to a chemical test based on
an oral application, the applicant therefor shall prepare the  order  in

S. 2498                             4

accordance  with the instructions of the judge or justice.  In all cases
the order shall include the name of the issuing judge  or  justice,  the
name  of the applicant, and the date and time it was issued.  It must be
signed  by the judge or justice if issued in person, or by the applicant
if issued orally.
  (5) Any false statement by an applicant or any other person in support
of an application for a court order shall subject  such  person  to  the
offenses  for  perjury set forth in article two hundred ten of the penal
law.
  (6) The chief administrator of the courts shall establish  a  schedule
to provide that a sufficient number of judges or justices will be avail-
able  in  each  judicial  district  to  hear oral applications for court
orders as permitted by this section.
  (e) Administration of compulsory chemical test. An order issued pursu-
ant to the provisions of this subdivision shall require that a  chemical
test  to  determine  the alcoholic and/or drug content of the operator's
blood must be administered. The provisions of paragraphs  (a),  (b)  and
(c) of subdivision four of this section shall be applicable to any chem-
ical test administered pursuant to this section.
  S 3. This act shall take effect on the first of November next succeed-
ing  the  date  on  which it shall have become a law, and shall apply to
violations committed on and after such date.