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

                                  2597

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 26, 2011
                               ___________

Introduced  by Sens. FUSCHILLO, BONACIC, DILAN, HUNTLEY, JOHNSON, KLEIN,
  LARKIN, NOZZOLIO, SALAND, STAVISKY -- 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 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

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

S. 2597                             2

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] 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

S. 2597                             3

REVOCATION  OR  SCREENING OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED
OR PERMITTED BY LAW.
  (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.