NY State Senate Bill 2009-S8233

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Jun 17, 2010	referred to rules

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2009-S8233 (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Vehicle and Traffic Law
Laws Affected:: Amd §§114-a, 509-cc, 1192 - 1195, 1198, rel §119-b to be §119-c, add §§119-b & 120-a, V & T L

2009-S8233 (ACTIVE) - Summary

Relates to driving while intoxicated; defines the terms impaired and intoxication.

2009-S8233 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S8233

TITLE OF BILL:

An act
to amend the vehicle and traffic law,
in relation to driving
while intoxicated

PURPOSE:

This bill would (1) add new definitions to the Vehicle and Traffic
Law; (2) lower the threshold blood alcohol level for purposes of
driving while intoxicated (DWI) or driving while ability impaired
(DWAI) if the driver was operating a school bus, and permanently
disqualify a person from driving a school bus if such person has been
convicted of these offenses while driving a school bus (3) require a
sentencing court to order a person adjudicated a youthful offender
for a DWI offense to install an ignition interlock device; (4)
increase the mandatory incarceration term for a person convicted of
two or more DWI offenses in a ten year period; (5) authorize the
collection of blood from certain DWI suspects pending court approval;
and (6) make it a class A misdemeanor to install an ignition
interlock device in a manner that allows the driver to bypass the
device and start the car.

SUMMARY OF PROVISIONS:

Section one of the bill would amend the definition of "drug" in
Vehicle and Traffic Law (VTL) §114-a to include any substance that
may cause a driver to be impaired or intoxicated.

Sections two and three of the bill would add new sections § 119-b and
§ 120-a to the VTL, respectively, to provide definitions of the terms
"impaired" and "intoxicated."

Sections four, five, six and seven of the bill would amend Vehicle and
Traffic Law (VTL) §509-cc to provide that a person who has been
convicted of a DWI or DWAI offense while driving a school bus would
be permanently disqualified from being a school bus driver.

Section eight of the bill would add new subdivisions (5-a) and (6-a) to
VTL § 1192, which would prohibit, as a DWAI, the operation of a
school bus if the driver has a blood alcohol concentration
(BAC) of .02 or more but less than .06. This section
would also prohibit, as a
DWI, the operation of a school bus if the driver has a BAC of .06 or
more.

Section nine of the bill would amend VTL §§1193(1)(b)(ii) and
1193(1)(c)(iii) to require that where a person is adjudicated a

youthful offender for a DWI offense, the court shall order the
offender to install and maintain an ignition interlock device.

Section ten of the bill would amend VTL §§ 1193(1)(d)(1-a) and
1193(1)(d)(4-a) to specify the class and category of each violation
for operating a school bus at the lower blood alcohol concentration
set forth in section eight of the bill.

Section eleven of the bill would amend VTL § 1193( 1-a) to increase
the mandatory sentence of incarceration from five days to thirty days
upon a second conviction for a DWI offense within a ten year period,
a:nd to increase the mandatory sentence of incarceration from ten
days to ninety days for three or more DWI convictions within a ten
year period. In addition, the period of community service that may be
substituted for incarceration on a second offense is increased from
thirty days to sixty days and is eliminated upon a third conviction.
This section of the bill also extends the look-back period during
which multiple convictions trigger a mandatory jail sentence or
community service is increased from five years to ten years.

Sections twelve and thirteen of the bill would amend VTL §1194(3) and
(4) and VTL § 1195(3) to authorize a police officer or district
attorney to direct a person to submit to a chemical test if there is
reasonable cause to believe that such person was operating a motor
vehicle in violation of VTL § 1192, another person was killed or
injured, a breath test indicated the presence of alcohol, and the
driver has been arrested. The person compelled to submit to the
chemical test may move to suppress the evidence pursuant to Criminal
Procedure Law §710.20.

Section fourteen of the bill would amend VTL §1198(1) and (2) to
clarify that a court must require a person adjudicated a youthful
offender for a DWI offense to install and maintain an ignition
interlock device. It would also amend VTL § 1198(9) to create a new
crime in cases where a person installs an ignition interlock device
in a manner that allows for the device to be bypassed. The bill would
further provide that a violation of VTL § 1198(9) is a class
A misdemeanor punishable by the provisions of Articles 60, 65 and 70
of the Penal Law.

Section fifteen of the bill would amend Vehicle and Traffic Law (VTL)
§1198(7)(c) to provide that operating a vehicle without an ignition
interlock device when such a device has been ordered by a court is a
class A misdemeanor punishable by the provisions of Articles 60, 65
and 70 of the Penal Law.

Section sixteen of the bill would provide for an effective date of
August 15, 2010, provided that the amendments to VTL § 1193(1)(b
)(ii) made by section 9 and the amendments to VTL §1198(1) and (2)
made by section 14 would take effect on the same date and in the same
manner as the amendments to such subparagraph and subdivisions in
Chapter 496 of the Laws of 2009 take effect; provided that sections

1-11, 14 and 15 of this bill would apply to violations committed on
or after the effective date.

EXISTING LAW:

Currently, intoxication by a drug can be the basis for a VTL § 1192
offense only if the drug is listed in Public Health Law §3306. This
list does not include many substances that have the ability to
intoxicate and impair drivers. The terms "impaired" and "intoxicated"
are not defined.

A school bus driver must now have a blood alcohol concentration
than .05 or greater to be considered impaired. A person convicted
of a DWI
offense while driving a school bus is disqualified from being a
school bus driver for only five years from the date of the conviction.

The mandatory jailor community service sentence for a person convicted
of two DWI offenses in a five-year period is currently five days
in jail or thirty days of community service. The mandatory jailor
community service sentence for a person convicted of more than two
DWI offenses in a five-year period is ten days in jail or sixty days
of community service.

Currently, where a person arrested for a DWI offense which caused a
death or injury refuses to comply with a request for a blood sample,
a court order compelling the person to comply with the request must
be obtained before a blood sample may be taken, delaying the taking
of the sample and the likelihood that the evidence will dissipate.

LEGISLATIVE HISTORY:

This is a new bill.

STATEMENT IN SUPPORT:

Driving while intoxicated is a serious offense that takes the lives of
many New Yorkers each year. While New York currently has strong DWI
laws, there remains more to be done to combat this problem.

First, a tragic loophole now exists in New York Law which can allow a
drunk driver who injures or kills another to delay the testing of his
or her blood for alcohol until the alcohol has dissipated. When a
person who is suspected of driving "drunk and has killed or seriously
injured another refuses to take a chemical test, the police or
District Attorney must apply for a court order to compel the test.
This procedure takes time, during which alcohol consumed by the
driver continues to metabolize and dissipate. By the time the court
order is obtained and the test taken, there may be no remaining blood
alcohol concentration even though the driver clearly exhibited signs
of intoxication on arrest. There have been cases in which drivers

with knowledge of the law have used that knowledge to cause a delay in
order to attempt to escape criminal liability. A person may be
visibly impaired, have slurred speech, and reek of alcohol, but if he
or she refuses a breathalyzer .test and it takes a few hours to
obtain a court order, the test may show no alcohol in his or her
system. Blood alcohol content usually disappeared within seven
hours. In no other criminal proceeding is a suspect allowed to cause
delays while criminal evidence is destroyed. This bill balances the
need to obtain evidence of a person's blood alcohol concentration in
a timely manner while preserving the defendant's right to challenge
the admissibility of the chemical test after the evidence is
collected by filing a motion to suppress pursuant to New York
Criminal Procedure Law. The United States Supreme Court has held that
taking of blood from a DWI suspect without a warrant is not an
unreasonable seizure (see Schmerber v.
California, 384 U.S. 757
(1966)).

Second, the use of an ignition interlock following a conviction for
driving while intoxicated has been shown to significantly reduce
repeat DWI offenses, leading to greater public safety. Use of such
devices was made mandatory following DWI convictions by Chapter 496
of the Laws of 2009 ("Leandra's Law"). Experience has shown, however,
that some DWI offenders will attempt to continue to drive while
intoxicated by tampering with or circumventing the device. Such
circumvention may include paying an installer to install the device
in a manner that allows the vehicle to start even though the driver
did not use the device or used it improperly. Under current law, the
DWI offender who circumvents an interlock device is subject to
prosecution under current law, but the corrupt installer is not. This
bill would close that loophole by making it a crime to install an
ignition interlock device in a manner that allows the device to be
bypassed.

Third, current law does not explicitly provide that a person
adjudicated a youthful offender for a DWI offense must install and
maintain an ignition interlock device.
However, it is as important, if not more important, that a youthful
offender be subject to the interlock requirement, both to increase
public safety and to prevent youthful offenders from becoming DWI
recidivists. This bill makes clear that a court must require the
installation of an interlock device for persons adjudicated youthful
offenders for a DWI offense.

Fourth, current law does not sufficiently sanction individuals who
endanger children by driving a school bus while impaired or
intoxicated. Driving a school bus after consuming alcohol is an
invitation to a tragedy. Parents should feel secure that their
children will be safe when riding on a school bus. However, under
current law a school bus driver can drink enough to have a blood
alcohol level of .04% without legal consequences. No amount of
alcohol consumption should be tolerated by a person driving a school

bus. This bill lowers the blood alcohol concentration allowed for
school bus drivers to .02%. The bill also would permanently
disqualify a person from driving a school bus if he or she has been
convicted of operating a school bus while impaired or intoxicated.

Fifth, under current law, a person may be convicted of multiple DWI
offenses without ever serving a period of incarceration. Currently a
person convicted of two DWI offenses within five years must serve a
five-day sentence of incarceration or perform 30 days of community
service, and a person who has committed more than two DWI offenses in
a five-year period must serve a ten-day sentence of incarceration or
perform 60 days of community service. By increasing the minimum
sentence of incarceration to
thirty days and ninety days respectively, increasing the look-back
period to ten years, increasing the optional period of community
service for second offenders to sixty days, and eliminating the
community service option for a person convicted of three or more DWI
offenses, this bill would allow courts to impose a higher sentence of
incarceration and enhance public safety by removing persistent DWl
offenders from the road for a period of time.

Finally, the VTL defines a "drug" as a substance listed in PHL §3306.
However, the use of non-PHL .3306 substances for a temporary high,
including common household items such as aerosols, herbal
concoctions, and glue, is increasingly common.
These substances may cause a driver to be impaired to a greater extent
than alcohol or drugs regulated by the Public Health Law (PHI,). This
bill would amend the definition of a drug for purposes of DWI offenses
to include any substance which may cause a driver to be impaired or
intoxicated, even if it is not listed in PHL . 3306, and would allow a
court to impose the appropriate sanction on a person who abuses such
substances and then drives while impaired.

FISCAL IMPACT:

This bill would have no impact on State finances.

EFFECTIVE DATE:

This bill would become effective August 15,2010, provided that the
amendments to VTL § 1193(1 )(b )(ii) made by section 9 and the
amendments to VTL § 1198(1) and (2) made by section 14 would take
effect on the same date and in the same manner as the amendments to
such subparagraph and subdivisions in Chapter 496 of the Laws of2009
take effect; provided that sections 1-11, 14 and 15 of this bill
would apply to violations committed on or after the effective date.

2009-S8233 (ACTIVE) - Bill Text download pdf

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

                                  8233

                            I N  S E N A T E

                              June 17, 2010
                               ___________

Introduced  by Sens. DILAN, FUSCHILLO -- (at request of the Governor) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Rules

AN  ACT  to  amend  the  vehicle and traffic law, in relation to driving
  while intoxicated

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

  Section  1.  Section 114-a of the vehicle and traffic law, as added by
chapter 163 of the laws of 1973, is amended to read as follows:
  S 114-a. Drug. The term "drug" when used in this  chapter,  means  and
includes any substance listed in section thirty-three hundred six of the
public  health  law AND, WHEN USED IN ARTICLE THIRTY-ONE OF THIS CHAPTER
SHALL INCLUDE ANY SUBSTANCE WHICH MAY CAUSE A DRIVER TO BE  IMPAIRED  OR
INTOXICATED.
  S  2.  Section  119-b  of  the  vehicle  and traffic law is relettered
section 119-c and a new section 119-b is added to read as follows:
  S 119-B. IMPAIRED. IMPAIRMENT IS REACHED WHEN A DRIVER HAS VOLUNTARILY
CONSUMED OR INGESTED A SUBSTANCE OR COMBINATION  OF  SUBSTANCES  TO  THE
EXTENT  THAT  THE  DRIVER  HAS IMPAIRED, TO ANY EXTENT, THE PHYSICAL AND
MENTAL ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPER-
ATE A VEHICLE IN A REASONABLE AND PRUDENT MANNER.
  S 3. The vehicle and traffic law is amended by adding  a  new  section
120-a to read as follows:
  S  120-A. INTOXICATION. INTOXICATION IS A GREATER DEGREE OF IMPAIRMENT
WHICH IS REACHED WHEN A DRIVER HAS VOLUNTARILY CONSUMED  OR  INGESTED  A
SUBSTANCE  OR COMBINATION OF SUBSTANCES TO THE EXTENT THAT THE DRIVER IS
INCAPABLE OF EMPLOYING THE PHYSICAL AND MENTAL ABILITIES WHICH A  DRIVER
IS EXPECTED TO POSSESS IN ORDER TO OPERATE A VEHICLE IN A REASONABLE AND
PRUDENT MANNER.
  S  4.  Paragraph (a) of subdivision 1 of section 509-cc of the vehicle
and traffic law is amended by adding a new subparagraph (iv) to read  as
follows:
  (IV)  HAS  BEEN  CONVICTED  OF ANY VIOLATION OF SECTION ELEVEN HUNDRED
NINETY-TWO OF THIS CHAPTER OR AN OFFENSE COMMITTED  OUTSIDE  THIS  STATE
WHICH  WOULD CONSTITUTE A VIOLATION OF SECTION ELEVEN HUNDRED NINETY-TWO
OF THIS CHAPTER, AND THE OFFENSE WAS  COMMITTED  WHILE  THE  DRIVER  WAS
DRIVING A SCHOOL BUS; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12224-03-0

S. 8233                             2

  S  5.  Subparagraph  (ii) of paragraph (b) of subdivision 1 of section
509-cc of the vehicle and traffic law, as added by chapter  675  of  the
laws of 1985, is amended to read as follows:
  (ii)  has  been  convicted  of any violation of section eleven hundred
ninety-two of this chapter or an offense committed  outside  this  state
which  would constitute a violation of section eleven hundred ninety-two
of this chapter, and the offense was  committed  while  the  driver  was
driving  a bus THAT IS NOT A SCHOOL BUS in the employ of a motor carrier
or in the furtherance of a commercial enterprise in  interstate,  intra-
state or foreign commerce;
  S 6. Subdivision 2 of section 509-cc of the vehicle and traffic law is
amended by adding a new paragraph (b-1) to read as follows:
  (B-1)  PERMANENTLY, IF THAT PERSON HAS BEEN CONVICTED OF ANY VIOLATION
OF SECTION ELEVEN HUNDRED NINETY-TWO  OF  THIS  CHAPTER  OR  AN  OFFENSE
COMMITTED  OUTSIDE  THIS  STATE  WHICH  WOULD  CONSTITUTE A VIOLATION OF
SECTION ELEVEN HUNDRED NINETY-TWO OF THIS CHAPTER, AND THE  OFFENSE  WAS
COMMITTED WHILE THE DRIVER WAS DRIVING A SCHOOL BUS.
  S  7.  Subparagraph  (ii) of paragraph (c) of subdivision 2 of section
509-cc of the vehicle and traffic law, as added by chapter  675  of  the
laws of 1985, is amended to read as follows:
  (ii)  has  been convicted of a violation of any subdivision of section
eleven hundred ninety-two  of  this  chapter  or  an  offense  committed
outside  of  this  state  which  would constitute a violation of section
eleven hundred ninety-two of this chapter, and the offense was committed
while the driver was driving a bus THAT IS  NOT  A  SCHOOL  BUS  in  the
employ  of  a motor carrier or in the furtherance of a commercial enter-
prise in interstate, intrastate or foreign commerce;
  S 8. Section 1192 of the vehicle and traffic law is amended by  adding
two new subdivisions 5-a and 6-a to read as follows:
  5-A. SCHOOL BUSES; PER SE - LEVEL I. NOTWITHSTANDING THE PROVISIONS OF
SECTION  ELEVEN  HUNDRED  NINETY-FIVE  OF  THIS ARTICLE, NO PERSON SHALL
OPERATE A SCHOOL BUS AS DEFINED IN SECTION ONE HUNDRED FORTY-TWO OF THIS
CHAPTER WHILE SUCH PERSON HAS .02 OF ONE PER CENTUM OR MORE BUT NOT MORE
THAN .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 NINE-
TY-FOUR OF THIS ARTICLE; PROVIDED, HOWEVER, NOTHING  CONTAINED  IN  THIS
SUBDIVISION  SHALL PROHIBIT THE IMPOSITION OF A CHARGE OF A VIOLATION OF
SUBDIVISION  ONE  OF  THIS  SECTION,  OR  OF  SECTION   ELEVEN   HUNDRED
NINETY-TWO-A  OF THIS ARTICLE WHERE A PERSON UNDER THE AGE OF TWENTY-ONE
OPERATES A COMMERCIAL MOTOR VEHICLE WHERE A 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,  INDI-
CATES THAT SUCH OPERATOR HAS .02 OF ONE PER CENTUM OR MORE BUT LESS THAN
.04 OF ONE PER CENTUM BY WEIGHT OF ALCOHOL IN SUCH OPERATOR'S BLOOD.
  6-A.  SCHOOL  BUSES; PER SE - LEVEL II. NOTWITHSTANDING THE PROVISIONS
OF SECTION ELEVEN HUNDRED NINETY-FIVE OF THIS ARTICLE, NO  PERSON  SHALL
OPERATE A SCHOOL BUS AS DEFINED IN SECTION ONE HUNDRED FORTY-TWO OF THIS
CHAPTER  WHILE  SUCH PERSON HAS MORE THAN .06 OF ONE PER CENTUM BUT LESS
THAN .08 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 NINE-
TY-FOUR OF THIS ARTICLE; PROVIDED, HOWEVER, NOTHING  CONTAINED  IN  THIS
SUBDIVISION  SHALL PROHIBIT THE IMPOSITION OF A CHARGE OF A VIOLATION OF
SUBDIVISION ONE OF THIS SECTION.

S. 8233                             3

  S 9. Subparagraph (ii) of paragraph  (b)  and  subparagraph  (iii)  of
paragraph  (c) of subdivision 1 of section 1193 of the vehicle and traf-
fic law, as amended by chapter 496 of the laws of 2009, are  amended  to
read as follows:
  (ii)  In addition to the imposition of any fine or period of imprison-
ment set forth in this paragraph, the court  shall  also  sentence  such
person  convicted  of OR ADJUDICATED A YOUTHFUL OFFENDER FOR a violation
of subdivision two, two-a or three of section eleven hundred  ninety-two
of  this article to a period of probation or conditional discharge, as a
condition of which it shall order such person to install  and  maintain,
in accordance with the provisions of section eleven hundred ninety-eight
of this article, an ignition interlock device in any motor vehicle owned
or  operated  by such person during the term of such probation or condi-
tional discharge imposed for such violation of  section  eleven  hundred
ninety-two  of  this  article  and in no event for less than six months.
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.
  (iii) In addition to the imposition of any fine or period of imprison-
ment set forth in this paragraph, the court  shall  also  sentence  such
person  convicted  of OR ADJUDICATED A YOUTHFUL OFFENDER FOR a violation
of subdivision two, two-a or three of section eleven hundred  ninety-two
of  this article to a period of probation or conditional discharge, as a
condition of which it shall order such person to install  and  maintain,
in accordance with the provisions of section eleven hundred ninety-eight
of this article, an ignition interlock device in any motor vehicle owned
or  operated  by such person during the term of such probation or condi-
tional discharge imposed for such violation of  section  eleven  hundred
ninety-two of this article and in no event for a period of less than six
months.  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 10. Subparagraphs 1-a and 4-a of paragraph (d) of subdivision  1  of
section  1193 of the vehicle and traffic law, as added by chapter 732 of
the laws of 2006, are amended to read as follows:
  (1-a) A violation of subdivision  one  OR  FIVE-A  of  section  eleven
hundred  ninety-two  of this article wherein the violator is operating a
school bus as defined in section one hundred forty-two of  this  chapter
[and  such  school bus is carrying at least one student passenger] shall
be a misdemeanor punishable by a fine of  not  less  than  five  hundred
dollars  nor  more than fifteen hundred dollars or by a period of impri-
sonment as provided in the penal law, or by both such fine and imprison-
ment.
  (4-a) A violation of subdivision two, three,  four,  [or]  four-a,  OR
SIX-A  of  section eleven hundred ninety-two of this article wherein the
violator is operating a school bus as defined  in  section  one  hundred
forty-two  of this chapter [and such school bus is carrying at least one
student passenger] shall be a class E felony punishable by a fine of not
less than one thousand dollars nor more than five thousand  dollars,  or
by  a  period  of  imprisonment as provided in the penal law, or by both
such fine and imprisonment. A violation of subdivision two-a of  section
eleven  hundred ninety-two of this article wherein the violator is oper-
ating a school bus as defined in section one hundred forty-two  of  this
chapter  and  such school bus is carrying at least one student passenger
shall be a class D felony punishable by a fine  of  not  less  than  two

S. 8233                             4

thousand  dollars  nor more than ten thousand dollars, or by a period of
imprisonment as provided in the penal law, or  by  both  such  fine  and
imprisonment.
  S  11.  Paragraphs (a), (b) and (c) of subdivision 1-a of section 1193
of the vehicle and traffic law, paragraphs (a) and (b) as added by chap-
ter 691 of the laws of 2002 and paragraph (c) as amended by chapter  669
of the laws of 2007, are amended to read as follows:
  (a)  Except  as  provided  for in paragraph (b) of this subdivision, a
person who operates a vehicle in  violation  of  subdivision  two  [or],
TWO-A,  three,  FOUR  OR  FOUR-A of section eleven hundred ninety-two of
this article after having been convicted of a violation  of  subdivision
two  [or],  TWO-A,  three,  FOUR  OR  FOUR-A  of such section within the
preceding [five] TEN years shall, in addition  to  any  other  penalties
which  may  be  imposed  pursuant to subdivision one of this section, be
sentenced to a term of imprisonment of [five]  THIRTY  days  or,  as  an
alternative  to such imprisonment, be required to perform [thirty] SIXTY
days of service for a public or not-for-profit corporation, association,
institution or agency as set forth in paragraph (h) of  subdivision  two
of  section 65.10 of the penal law as a condition of sentencing for such
violation. Notwithstanding the provisions of this paragraph, a  sentence
of  a term of imprisonment of [five] THIRTY days or more pursuant to the
provisions of subdivision one of this section shall be deemed to  be  in
compliance with this subdivision.
  (b)  A  person  who operates a vehicle in violation of subdivision two
[or], TWO-A, three, FOUR OR FOUR-A of section eleven hundred  ninety-two
of  this article after having been convicted on two or more occasions of
a violation of any of such subdivisions within the preceding [five]  TEN
years  shall,  in  addition  to any other penalties which may be imposed
pursuant to subdivision one of this section, be sentenced to a  term  of
imprisonment  of [ten] NINETY days [or, as an alternative to such impri-
sonment, be required to perform sixty days of service for  a  public  or
not-for-profit  corporation,  association,  institution or agency as set
forth in paragraph (h) of subdivision two of section 65.10 of the  penal
law  as  a  condition of sentencing for such violation]. Notwithstanding
the provisions of this paragraph, a sentence of a term  of  imprisonment
of  [ten]  NINETY days or more pursuant to the provisions of subdivision
one of this section shall be deemed to be in compliance with this subdi-
vision.
  (c) A court sentencing a person, WHO HAS BEEN CONVICTED OF OPERATING A
VEHICLE IN VIOLATION OF SUBDIVISION  TWO,  TWO-A,  THREE  OR  FOUR-A  OF
SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE, pursuant to paragraph
(a)  or  (b) of this subdivision shall: (i) order the installation of an
ignition interlock device approved pursuant to  section  eleven  hundred
ninety-eight  of  this article in any motor vehicle owned or operated by
the person so sentenced. Such devices shall remain installed during  any
period  of  license  revocation required to be imposed pursuant to para-
graph (b) of subdivision two of this section, and, upon the  termination
of such revocation period, for an additional period as determined by the
court;  and  (ii)  order  that  such person receive an assessment of the
degree of their alcohol or substance abuse and  dependency  pursuant  to
the provisions of section eleven hundred ninety-eight-a of this article.
Where  such  assessment  indicates the need for treatment, such court is
authorized to impose treatment as a condition of  such  sentence  except
that  such  court shall impose treatment as a condition of a sentence of
probation or conditional discharge pursuant to the provisions of  subdi-
vision  three  of section eleven hundred ninety-eight-a of this article.

S. 8233                             5

Any person ordered to install an ignition interlock device  pursuant  to
this  paragraph shall be subject to the provisions of subdivisions four,
five, seven, eight and nine of section eleven  hundred  ninety-eight  of
this article.
  S  12. Subdivisions 3 and 4 of section 1194 of the vehicle and traffic
law, as added by chapter 47 of the laws of 1988, subparagraph 1 of para-
graph (a) of subdivision 4 as amended by chapter  406  of  the  laws  of
1988, are amended to read as follows:
  3.  Compulsory  chemical  tests.  (a)  [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  alcoholic  and/or  drug
content of the blood [when a court order for such chemical test has been
issued  in  accordance with the provisions of this subdivision] WHEN THE
CONDITIONS SET FORTH IN PARAGRAPH (B) OF THIS SUBDIVISION HAVE BEEN MET.
  (b) When authorized. [Upon refusal by any person to submit to a chemi-
cal test or any portion thereof as described above, the test  shall  not
be  given  unless]  WHEN  a  police  officer  or a district attorney, as
defined in subdivision thirty-two of section 1.20 of the criminal proce-
dure 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] HAS reasonable  cause  to  believe
that[:
  (1)  such]  A  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) such person has refused to  submit  to  a  chemical  test  or  any
portion  thereof,  requested  in accordance with the provisions of para-
graph (a) of subdivision two of  this  section  or  is  unable  to  give
consent  to  such  a  test] SUCH POLICE OFFICER OR DISTRICT ATTORNEY MAY
DIRECT THAT SUCH PERSON SUBMIT TO A CHEMICAL 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
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.
  [(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

S. 8233                             6

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
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.

S. 8233                             7

  (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.]
  4. Testing procedures. (a) Persons authorized to withdraw blood; immu-
nity; testimony. (1) At the request of a police officer  OR  A  DISTRICT
ATTORNEY,  AS  DEFINED  IN SUBDIVISION THIRTY-TWO OF SECTION 1.20 OF THE
CRIMINAL PROCEDURE LAW, the following persons may withdraw blood for the
purpose of determining the alcoholic or  drug  content  therein:  (i)  a
physician,  a  registered professional nurse or a registered physician's
assistant; or (ii) under the supervision  and  at  the  direction  of  a
physician:  a  medical  laboratory technician or medical technologist as
classified by civil  service;  a  phlebotomist;  an  advanced  emergency
medical  technician  as  certified  by  the  department  of health; or a
medical laboratory technician or  medical  technologist  employed  by  a
clinical  laboratory  approved  under  title five of article five of the
public health law. This limitation shall not apply to the  taking  of  a
urine, saliva or breath specimen.
  (2)  No person entitled to withdraw blood pursuant to subparagraph one
of this paragraph or  hospital  employing  such  person,  and  no  other
employer of such person shall be sued or held liable for any act done or
omitted  in  the  course of withdrawing blood at the request of a police
officer pursuant to this section.
  (3) Any person who may have a cause of action arising from  the  with-
drawal  of  blood  as  aforesaid, for which no personal liability exists
under subparagraph two of  this  paragraph,  may  maintain  such  action
against  the  state if any person entitled to withdraw blood pursuant to
THIS paragraph [(a) hereof] acted at the request  of  a  police  officer
employed  by the state, or against the appropriate political subdivision
of the state if such person acted at the request  of  a  police  officer
employed  by  a  political  subdivision of the state. No action shall be
maintained pursuant to this subparagraph unless notice of claim is  duly
filed or served in compliance with law.
  (4)  Notwithstanding  the  foregoing  provisions  of this paragraph an
action may be maintained by the state or a political subdivision thereof
against a person entitled to withdraw blood pursuant to subparagraph one
of this paragraph or hospital employing such person  for  whose  act  or
omission  the  state  or  the political subdivision has been held liable
under this paragraph  to  recover  damages,  not  exceeding  the  amount
awarded  to  the  claimant, that may have been sustained by the state or
the political subdivision by reason of gross negligence or bad faith  on
the part of such person.
  (5)  The  testimony  of any person other than a physician, entitled to
withdraw blood pursuant  to  subparagraph  one  of  this  paragraph,  in
respect  to  any  such  withdrawal  of  blood made by such person may be
received in evidence with the same weight, force and effect as  if  such
withdrawal of blood were made by a physician.
  (6)  The provisions of subparagraphs two, three and four of this para-
graph shall also apply with regard to any person employed by a  hospital
as security personnel for any act done or omitted in the course of with-

S. 8233                             8

drawing  blood  at  the request of a police officer [pursuant to a court
order] OR A DISTRICT ATTORNEY, AS DEFINED IN SUBDIVISION  THIRTY-TWO  OF
SECTION  1.20 OF THE CRIMINAL PROCEDURE LAW, in accordance with subdivi-
sion three of this section.
  (b)  Right to additional test. The person tested shall be permitted to
choose a physician to administer a chemical test in addition to the  one
administered at the direction of the police officer.
  (c)  Rules  and  regulations. The department of health shall issue and
file rules and regulations approving satisfactory techniques or  methods
of  conducting  chemical  analyses of a person's blood, urine, breath or
saliva and to ascertain the qualifications and competence of individuals
to conduct and supervise chemical analyses of a person's  blood,  urine,
breath  or saliva. If the analyses were made by an individual possessing
a permit issued by the department of health, this shall  be  presumptive
evidence that the examination was properly given. The provisions of this
paragraph  do  not  prohibit the introduction as evidence of an analysis
made by an individual other than a person possessing a permit issued  by
the department of health.
  S 13. Subdivision 3 of section 1195 of the vehicle and traffic law, as
added by chapter 47 of the laws of 1988, is amended to read as follows:
  3.  Suppression.  A  defendant  who  has been compelled to submit to a
chemical test pursuant to the provisions of subdivision three of section
eleven hundred ninety-four of this article may move for the  suppression
of  such  evidence  in  accordance with article seven hundred ten of the
criminal procedure law on the grounds that the [order was  obtained  and
the] test WAS administered in violation of the provisions of such subdi-
vision or any other applicable law.
  S 14. Subdivisions 1, 2 and 9 of section 1198 of the vehicle and traf-
fic  law,  as amended by chapter 496 of the laws of 2009, are amended to
read as follows:
  1. Applicability. The provisions of this section shall apply  through-
out  the  state to each person required, AS A RESULT OF A CONVICTION FOR
OR ADJUDICATION AS A YOUTHFUL OFFENDER FOR A  VIOLATION  OF  SUBDIVISION
TWO,  TWO-A  OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTI-
CLE, or otherwise ordered by a court as  a  condition  of  probation  or
conditional  discharge  to  install  and  operate  an ignition interlock
device in any vehicle which he or she owns or operates.
  2. Requirements. (a) In addition to any other penalties prescribed  by
law,  the  court shall require that any person who has been convicted of
OR ADJUDICATED A YOUTHFUL OFFENDER FOR a violation of  subdivision  two,
two-a  or three of section eleven hundred ninety-two of this article, or
any crime defined by this chapter or the penal law of which an  alcohol-
related  violation of any provision of section eleven hundred ninety-two
of this article is an essential element, to install and maintain,  as  a
condition  of probation or conditional discharge, a functioning ignition
interlock device in accordance with the provisions of this section  and,
as applicable, in accordance with the provisions of subdivisions one and
one-a  of section eleven hundred ninety-three of this article; 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 except as provided herein. For any such individual subject
to a sentence of probation OR CONDITIONAL  DISCHARGE,  installation  and
maintenance  of  such  ignition interlock device shall be a condition of
probation OR CONDITIONAL DISCHARGE.
  (b) Nothing contained in this section shall  prohibit  a  court,  upon
application  by a probation department, from modifying the conditions of

S. 8233                             9

probation of any person convicted of any violation set  forth  in  para-
graph  (a)  of  this  subdivision  prior  to  the effective date of this
section, to require the installation and maintenance  of  a  functioning
ignition  interlock  device, and such person shall thereafter be subject
to the provisions of this section.
  (c) Nothing contained in this  section  shall  authorize  a  court  to
sentence  any  person  to a period of probation or conditional discharge
for the purpose of subjecting such person  to  the  provisions  of  this
section,  unless such person would have otherwise been so eligible for a
sentence of probation or conditional discharge.
  9. Circumvention of interlock device.  (a)  No  person  whose  driving
privilege  is restricted pursuant to this article or the penal law shall
request, solicit or allow any other person  to  blow  into  an  ignition
interlock  device, or to start a motor vehicle equipped with the device,
for the purpose of providing the person so restricted with  an  operable
motor vehicle.
  (b)  No person shall blow into an ignition interlock device or start a
motor vehicle equipped with the device for the purpose of  providing  an
operable  motor  vehicle  to  a  person  whose  driving  privilege is so
restricted.
  (c) No person shall tamper with or circumvent  an  otherwise  operable
ignition interlock device.
  (d)  No  person  subject  to a court ordered ignition interlock device
shall operate a motor vehicle without such device.
  (e) NO PERSON SHALL INSTALL AN IGNITION INTERLOCK DEVICE IN ANY MANNER
WHICH ALLOWS A PERSON WHOSE DRIVING PRIVILEGE IS RESTRICTED PURSUANT  TO
THIS  ARTICLE  OR THE PENAL LAW TO START THE VEHICLE IN WHICH THE DEVICE
IS INSTALLED WITHOUT PROPERLY USING THE DEVICE.
  (F) In addition to any other provisions of law, any  person  convicted
of  a  violation  of  paragraph  (a), (b), (c), [or] (d), OR (E) of this
subdivision shall be guilty of a  Class  A  misdemeanor  FOR  WHICH  ANY
SENTENCE AUTHORIZED BY ARTICLE SIXTY, SIXTY-FIVE OR SEVENTY OF THE PENAL
LAW MAY BE IMPOSED.
  S  15.  Paragraph  (c) of subdivision 7 of section 1198 of the vehicle
and traffic law, as amended by chapter 669  of  the  laws  of  2007,  is
amended to read as follows:
  (c)  A  violation of paragraph (a) [or] OF THIS SUBDIVISION SHALL BE A
CLASS A MISDEMEANOR FOR WHICH ANY SENTENCE AUTHORIZED BY ARTICLE  SIXTY,
SIXTY-FIVE OR SEVENTY OF THE PENAL LAW MAY BE IMPOSED AND A VIOLATION OF
PARAGRAPH (b) of this subdivision shall be a misdemeanor.
  S  16.  This act shall take effect August 15, 2010; provided, however,
that the amendments to subparagraph (ii) of paragraph (b) of subdivision
1 of section 1193 of the vehicle and traffic law made by section nine of
this act and the amendments to subdivisions 1 and 2 of section  1198  of
the  vehicle  and traffic law made by section fourteen of this act shall
take effect on the same date and in the same manner  as  the  amendments
made to such subparagraph and subdivisions, respectively, by chapter 496
of  the  laws  of 2009 take effect; provided, however, that sections one
through eleven, fourteen and fifteen of this act shall apply to offenses
committed on or after such effective date; provided, further,  that  the
amendments  to  section  1198  of  the  vehicle  and traffic law made by
sections fourteen and fifteen of this act shall not affect the repeal of
such section and shall be deemed repealed therewith.

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Senate Bill S8233

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

co-Sponsors

2009-S8233 (ACTIVE) - Details

2009-S8233 (ACTIVE) - Summary

2009-S8233 (ACTIVE) - Sponsor Memo

2009-S8233 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S8233

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Sponsored By

Martin Malavé Dilan

Archive: Last Bill Status - In Senate Committee Rules Committee

co-Sponsors

Charles J. Fuschillo Jr.

2009-S8233 (ACTIVE) - Details

2009-S8233 (ACTIVE) - Summary

2009-S8233 (ACTIVE) - Sponsor Memo

2009-S8233 (ACTIVE) - Bill Text download pdf

Comments