S T A T E   O F   N E W   Y O R K
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                                  5349

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 16, 2011
                               ___________

Introduced  by  M.  of  A.  WEISENBERG  -- read once and referred to the
  Committee on Codes

AN ACT to amend the vehicle and  traffic  law  and  the  penal  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. Paragraph (c) of subdivision 1 of section 1193 of the vehi-
cle and traffic law is amended by adding a new subparagraph (iv) to read
as follows:
  (IV) IN CALCULATING THE TEN YEAR PERIOD UNDER ITEM (I) OF CLAUSE B  OF
SUBPARAGRAPH  THREE OF PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION,
ANY PERIOD OF TIME DURING WHICH THE  PERSON  WAS  INCARCERATED  FOR  ANY
REASON  BETWEEN  THE  TIME  OF  COMMISSION  OF THE PREVIOUS VIOLATION OF
SUBDIVISION TWO, TWO-A, THREE, FOUR OR FOUR-A OF SECTION ELEVEN  HUNDRED
NINETY-TWO  OF  THIS  ARTICLE  OR  OF VEHICULAR ASSAULT IN THE SECOND OR
FIRST DEGREE, AS DEFINED, RESPECTIVELY, IN SECTIONS  120.03  AND  120.04
AND  AGGRAVATED VEHICULAR ASSAULT AS DEFINED IN SECTION 120.04-A  OF THE
PENAL LAW OR OF VEHICULAR MANSLAUGHTER IN THE SECOND OR FIRST DEGREE, AS
DEFINED, RESPECTIVELY, IN SECTIONS  125.12  AND  125.13  AND  AGGRAVATED
VEHICULAR  HOMICIDE  AS  DEFINED  IN SECTION 125.14 OF SUCH LAW, AND THE
TIME OF COMMISSION OF THE PRESENT OFFENSE SHALL BE EXCLUDED AND SUCH TEN
YEAR PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO  THE  TIME
SERVED UNDER SUCH INCARCERATION.
  S  2.  Subdivision 1-a of section 1193 of the vehicle and traffic law,
as added by chapter 691 of the laws of 2002, paragraph (c) as amended by
chapter 669 of the laws of 2007, paragraph (d) as added by  chapter  732
of the laws of 2006, is amended to read as follows:
  1-a.  Additional  penalties. (a) Except as provided for in [paragraph]
PARAGRAPHS (A-1), (b) AND (B-1) of this subdivision, a person who  oper-
ates  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04584-03-1
              

A. 5349                             2

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] NOT LESS THAN THIRTY days [or, as an  alternative
to  such imprisonment, be required to perform thirty 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. NOTHING CONTAINED  IN  THIS  PARAGRAPH  SHALL  BE
CONSTRUED  TO  LIMIT  OR  PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDI-
TIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR REVOCATION OR SCREENING
OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW.
  (A-1) A PERSON WHO OPERATES A  VEHICLE  IN  VIOLATION  OF  SUBDIVISION
TWO-A  OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AFTER HAVING
BEEN CONVICTED OF A VIOLATION OF SUCH SUBDIVISION WITHIN  THE  PRECEDING
TEN  YEARS  SHALL,  IN  ADDITION  TO  ANY PENALTIES WHICH MAY BE IMPOSED
PURSUANT TO SUBDIVISION ONE OF THIS SECTION, BE SENTENCED TO A  TERM  OF
IMPRISONMENT  OF  NOT  LESS  THAN  ONE  HUNDRED  EIGHTY  DAYS.   NOTHING
CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT  OR  PROHIBIT  A
COURT  FROM  IMPOSING  ANY  OTHER ADDITIONAL PENALTY, CONDITION, LICENSE
SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION  OF  ANY
KIND REQUIRED OR PERMITTED BY LAW.
  (b)  [A]  EXCEPT AS PROVIDED IN PARAGRAPH (B-1) 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 on two or more occasions  of  a
violation  of  [any of such subdivisions] SUBDIVISION TWO, 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  imprison-
ment  of  [ten] NOT LESS THAN NINETY days [or, as an alternative to such
imprisonment, 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.  NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT
OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDITIONAL  PENALTY,  CONDI-
TION,  LICENSE  SUSPENSION  OR  REVOCATION OR SCREENING OR ASSESSMENT OF
SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW.
  (B-1) A PERSON WHO OPERATES A  VEHICLE  IN  VIOLATION  OF  SUBDIVISION
TWO-A  OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AFTER HAVING
BEEN CONVICTED OF TWO OR MORE VIOLATIONS OF SUCH SUBDIVISION WITHIN  THE
PRECEDING  TEN  YEARS  SHALL,  IN ADDITION TO ANY PENALTIES WHICH MAY BE
IMPOSED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, BE SENTENCED  TO  A
TERM  OF  IMPRISONMENT  OF  NOT LESS THAN ONE YEAR. NOTHING CONTAINED IN
THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT  OR  PROHIBIT  A  COURT  FROM
IMPOSING  ANY OTHER ADDITIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR
REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY  KIND  REQUIRED
OR PERMITTED BY LAW.

A. 5349                             3

  (c)  A court sentencing a person WHO HAS BEEN CONVICTED OF OPERATING A
VEHICLE IN VIOLATION OF SUBDIVISION TWO, TWO-A, THREE OR AN  ALCOHOL-RE-
LATED  VIOLATION OF SUBDIVISION FOUR-A OF SECTION ELEVEN HUNDRED NINETY-
TWO OF THIS ARTICLE pursuant to paragraph (a) [or], (A-1), (b) OR  (B-1)
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.
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. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO
LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY  OTHER  ADDITIONAL  PENALTY,
CONDITION,  LICENSE  SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT
OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW.
  (d) Confidentiality of records. The provisions of subdivision  six  of
section eleven hundred ninety-eight-a of this article shall apply to the
records  and content of all assessments and treatment conducted pursuant
to this subdivision.
  (E) IN CALCULATING THE TEN YEAR PERIOD UNDER  PARAGRAPHS  (A),  (A-1),
(B)  AND  (B-1) OF THIS SUBDIVISION, ANY PERIOD OF TIME DURING WHICH THE
PERSON WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF
THE PREVIOUS VIOLATION OF SUBDIVISION TWO, TWO-A, THREE, FOUR OR  FOUR-A
OF SECTION ELEVEN HUNDRED AND NINETY-TWO OF THIS ARTICLE AND THE TIME OF
COMMISSION  OF  THE  PRESENT OFFENSE SHALL BE EXCLUDED AND SUCH TEN YEAR
PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED
UNDER SUCH INCARCERATION.
  S 3. Paragraph (a) of subdivision 1 of section 70.06 of the penal law,
as amended by chapter 410 of the laws of 1979, is  amended  to  read  as
follows:
  (a)  A second felony offender is a person, other than a second violent
felony offender as defined in section 70.04, who stands convicted  of  a
felony  [defined  in this chapter], other than a class A-I felony, after
having previously  been  subjected  to  one  or  more  predicate  felony
convictions as defined in paragraph (b) of this subdivision.
  S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.