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

                                  2535

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 19, 2011
                               ___________

Introduced  by  M. of A. MENG -- read once and referred to the Committee
  on Transportation

AN ACT to amend the vehicle and  traffic  law  and  the  penal  law,  in
  relation to operating a vehicle while fatigued; in relation to vehicu-
  lar assault and vehicular manslaughter; and providing for the mandato-
  ry  suspension  of  a  driver's license upon conviction of operating a
  vehicle while fatigued

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

  Section  1.  The  vehicle  and  traffic law is amended by adding a new
section 1212-a to read as follows:
  S 1212-A. OPERATING A VEHICLE WHILE FATIGUED.  (A) A PERSON IS  GUILTY
OF  OPERATING A VEHICLE WHILE FATIGUED WHEN HE OR SHE OPERATES ANY VEHI-
CLE WHILE HIS OR HER ABILITY TO DRIVE IS IMPAIRED BY FATIGUE.  PROOF  OF
FATIGUED OPERATION SHALL INCLUDE, BUT NOT BE LIMITED TO:
  (1) EVIDENCE THAT THE DEFENDANT FELL ASLEEP WHILE DRIVING;
  (2)  EVIDENCE  THAT  THE DEFENDANT WAS AWARE OR SHOULD REASONABLY HAVE
BEEN EXPECTED TO BE AWARE THAT HE OR SHE  HAS  BEEN  WITHOUT  SLEEP  FOR
TWENTY-FOUR OR MORE CONSECUTIVE HOURS.
  EVIDENCE  OF SUCH LACK OF SLEEP AS SET FORTH IN THIS SUBDIVISION SHALL
CREATE A REBUTTABLE PRESUMPTION THAT SUCH PERSON'S ABILITY TO DRIVE  WAS
IMPAIRED BY FATIGUE.
  (B)  FOR THE PURPOSES OF THIS SECTION, THE TERM "VEHICLE" SHALL MEAN A
MOTOR VEHICLE, MOTORCYCLE, VESSEL, PUBLIC VESSEL,  SNOWMOBILE,  ALL-TER-
RAIN  VEHICLE  OR  ANY  OTHER  VEHICLE PROPELLED BY ANY POWER OTHER THAN
MUSCULAR POWER.
  (C) THIS SECTION SHALL NOT APPLY TO EMERGENCY PERSONNEL ENGAGED IN THE
RESPONSE TO  A  CATASTROPHIC  EVENT  WHICH  AFFECTS  PUBLIC  SAFETY;  OR
MEDICAL,  FIRE  OR AMBULANCE PERSONNEL RESPONDING TO CERTAIN EMERGENCIES
OR CALLS FOR ASSISTANCE; OR PERSONS IMPAIRED BY  FATIGUE  UNDER  CIRCUM-
STANCES  IN  WHICH  A  REASONABLE  PERSON WOULD NOT HAVE ANTICIPATED THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05515-01-1
              

A. 2535                             2

ONSET OF FATIGUE NOR HAD A REASONABLE OPPORTUNITY TO DISCONTINUE  OPERA-
TION OF HIS OR HER VEHICLE.
  (D)  EVERY  PERSON VIOLATING THIS SECTION SHALL BE GUILTY OF A CLASS A
MISDEMEANOR. A FIRST VIOLATION OF THIS SECTION SHALL  BE  SUBJECT  TO  A
FINE  NOT  TO  EXCEED  FIVE HUNDRED DOLLARS; ANY SUBSEQUENT VIOLATION OF
THIS SECTION SHALL BE SUBJECT TO A  FINE  NOT  TO  EXCEED  ONE  THOUSAND
DOLLARS   AND  MANDATORY  LICENSE  SUSPENSION  IN  ACCORDANCE  WITH  THE
PROVISIONS OF SECTION FIVE HUNDRED TEN OF THIS CHAPTER.
  S 2. Paragraph b of subdivision 2 of section 510 of  the  vehicle  and
traffic  law  is  amended  by adding a new subparagraph (xvi) to read as
follows:
  (XVI) FOR A PERIOD OF SIX MONTHS WHERE THE HOLDER IS  CONVICTED  OF  A
VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THIS CHAPTER.
  S  3. Subparagraph 2 of paragraph (a) of subdivision 2 of section 1193
of the vehicle and traffic law, as amended by chapter 196 of the laws of
1996, is amended and a new subparagraph 3 is added to read as follows:
  (2) Persons under the age of twenty-one; driving after having consumed
alcohol. Six months, where the holder has been found to have operated  a
motor  vehicle  after  having  consumed  alcohol in violation of section
eleven hundred ninety-two-a of this article where such person was  under
the age of twenty-one at the time of commission of such violation[.];
  (3)  PERSONS  UNDER  THE  AGE OF TWENTY-ONE; OPERATING A VEHICLE WHILE
FATIGUED. SIX MONTHS, WHERE THE HOLDER HAS BEEN FOUND TO HAVE OPERATED A
VEHICLE WHILE FATIGUED IN VIOLATION OF SECTION TWELVE  HUNDRED  TWELVE-A
OF THIS CHAPTER WHERE SUCH PERSON WAS UNDER THE AGE OF TWENTY-ONE AT THE
TIME OF COMMISSION OF SUCH VIOLATION.
  S 4. Section 120.03 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 120.03 Vehicular assault in the second degree.
  A  person  is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
  (1) operates a motor vehicle in violation of subdivision  two,  three,
four  or  four-a of section eleven hundred ninety-two of the vehicle and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW or operates a vessel  or  public
vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two
of  section  forty-nine-a of the navigation law, and as a result of such
intoxication or impairment by the use of a  drug,  or  by  the  combined
influence  of  drugs or of alcohol and any drug or drugs, OR BY FATIGUE,
operates such motor vehicle, vessel or public vessel in  a  manner  that
causes such serious physical injury to such other person, or
  (2)  operates  a  motor  vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas,  radio-
active  materials  or  explosives  in  violation  of  subdivision one of
section eleven hundred ninety-two of the  vehicle  and  traffic  law  OR
OPERATES  A  VEHICLE  IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF
THE VEHICLE AND TRAFFIC LAW, and such flammable gas, radioactive materi-
als or explosives is the cause of such serious physical injury, and as a
result of such impairment by the use of alcohol, OR BY FATIGUE, operates
such motor vehicle in a manner that causes such serious physical  injury
to such other person, or
  (3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision  one  of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in  para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the  vehicle and traffic law and in violation of subdivision two, three,

A. 2535                             3

four, or four-a of section eleven hundred ninety-two of the vehicle  and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and as a result of such intoxi-
cation  or impairment by the use of a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs, OR  BY  FATIGUE,  operates
such  snowmobile  or  all  terrain  vehicle in a manner that causes such
serious physical injury to such other person.
  If it is established that the person  operating  such  motor  vehicle,
vessel,  public  vessel,  snowmobile  or all terrain vehicle caused such
serious physical injury while: (A) unlawfully intoxicated or impaired by
the use of alcohol or a drug[,]; OR (B) UNLAWFULLY IMPAIRED  BY  FATIGUE
then  there  shall be a rebuttable presumption that, as a result of such
intoxication or impairment by the use of alcohol or a drug,  or  by  the
combined  influence  of drugs or of alcohol and any drug or drugs, OR BY
FATIGUE, such person operated the motor vehicle, vessel, public  vessel,
snowmobile  or  all terrain vehicle in a manner that caused such serious
physical injury, as required by this section.
  Vehicular assault in the second degree is a class E felony.
  S 5. The second undesignated paragraph of section 120.04 of the  penal
law,  as  amended by chapter 496 of the laws of 2009, is amended to read
as follows:
  If it is established that the  person  operating  such  motor  vehicle
caused  such  serious  physical injury or injuries while: (A) unlawfully
intoxicated or impaired by the use of alcohol  or  a  drug,  or  by  the
combined  influence  of drugs or of alcohol and any drug or drugs[,]; OR
(B) UNLAWFULLY IMPAIRED BY FATIGUE then  there  shall  be  a  rebuttable
presumption  that, as a result of such intoxication or impairment by the
use of alcohol or a drug, or by the combined influence of  drugs  or  of
alcohol  and  any drug or drugs, OR BY FATIGUE, such person operated the
motor vehicle in a manner that caused such serious  physical  injury  or
injuries,  as  required by this section and section 120.03 of this arti-
cle.
  S 6. Section 125.12 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 125.12 Vehicular manslaughter in the second degree.
  A person is guilty of vehicular manslaughter in the second degree when
he or she causes the death of another person, and either:
  (1) operates a motor vehicle in violation of subdivision  two,  three,
four  or  four-a of section eleven hundred ninety-two of the vehicle and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW or operates a vessel  or  public
vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two
of  section  forty-nine-a of the navigation law, and as a result of such
intoxication or impairment by the use of a  drug,  or  by  the  combined
influence of drugs or of alcohol and any drug or drugs OR FATIGUE, oper-
ates such motor vehicle, vessel or public vessel in a manner that causes
the death of such other person, or
  (2)  operates  a  motor  vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas,  radio-
active  materials  or  explosives  in  violation  of  subdivision one of
section eleven hundred ninety-two of the  vehicle  and  traffic  law  OR
OPERATES  A  VEHICLE  IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF
THE VEHICLE AND TRAFFIC LAW, and such flammable gas, radioactive materi-
als or explosives is the cause of such death, and as a  result  of  such
impairment  by  the  use  of alcohol, OR BY FATIGUE, operates such motor
vehicle in a manner that causes the death of such other person, or

A. 2535                             4

  (3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation  and  historic
preservation  law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the  vehicle  and  traffic  law  in violation of subdivision two, three,
four, or four-a of section eleven hundred ninety-two of the vehicle  and
traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED
TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and as a result of such intoxi-
cation  or impairment by the use of a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs OR FATIGUE,  operates  such
snowmobile  or  all terrain vehicle in a manner that causes the death of
such other person.
  If it is established that the person  operating  such  motor  vehicle,
vessel,  public  vessel,  snowmobile  or all terrain vehicle caused such
death while: (A) unlawfully intoxicated or impaired by the use of  alco-
hol or a drug[,]; OR (B) UNLAWFULLY IMPAIRED BY FATIGUE then there shall
be  a  rebuttable  presumption that, as a result of such intoxication or
impairment by the use of alcohol or a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, such person
operated the motor vehicle, vessel, public  vessel,  snowmobile  or  all
terrain  vehicle in a manner that caused such death, as required by this
section.
  Vehicular manslaughter in the second degree is a class D felony.
  S 7. The second undesignated paragraph of section 125.13 of the  penal
law,  as  amended by chapter 496 of the laws of 2009, is amended to read
as follows:
  If it is established that the  person  operating  such  motor  vehicle
caused  such  death  or  deaths  while:  (A)  unlawfully  intoxicated or
impaired by the use of alcohol or a drug, or by the  combined  influence
of  drugs  or  of  alcohol  and  any drug or drugs[,]; OR (B) UNLAWFULLY
IMPAIRED BY FATIGUE then there shall be a rebuttable  presumption  that,
as  a result of such intoxication or impairment by the use of alcohol or
a drug, or by the combined influence of drugs or of alcohol and any drug
or drugs, OR BY FATIGUE such person operated  the  motor  vehicle  in  a
manner that caused such death or deaths, as required by this section and
section 125.12 of this article.
  S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law.