S T A T E O F N E W Y O R K
________________________________________________________________________
5345
2013-2014 Regular Sessions
I N S E N A T E
May 16, 2013
___________
Introduced by Sen. FUSCHILLO -- 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 saliva swabs
and chemical tests in certain cases
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 1, 2 and 3 of section 1194 of the vehicle and
traffic law, as added by chapter 47 of the laws of 1988, paragraphs (a)
and (b) of subdivision 2 as amended by chapter 196 of the laws of 1996,
subparagraphs 1 and 2 of paragraph (d) of subdivision 2 as amended by
chapter 732 of the laws of 2006 and item (iii) of clause c of subpara-
graph 1 of paragraph (d) of subdivision 2 as amended by section 37 of
part LL of chapter 56 of the laws of 2010, are amended to read as
follows:
1. Arrest and field testing. (a) Arrest. Notwithstanding the
provisions of section 140.10 of the criminal procedure law, a police
officer may, without a warrant, arrest a person, in case of a violation
of subdivision one of section eleven hundred ninety-two of this article,
if such violation is coupled with an accident or collision in which such
person is involved, which in fact has been committed, though not in the
police officer's presence, when the officer has reasonable cause to
believe that the violation was committed by such person.
(b) Field testing. Every person operating a motor vehicle which has
been involved in an accident or which is operated in violation of any of
the provisions of this chapter shall, at the request of a police offi-
cer, submit to a breath test AND/OR SALIVA SWAB to be administered by
the police officer. If EITHER such test indicates that such operator has
consumed alcohol OR IS UNDER THE INFLUENCE OF A DRUG OR DRUGS, OR BOTH,
the police officer may request such operator to submit to a chemical
test in the manner set forth in subdivision two of this section.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10975-01-3
S. 5345 2
2. Chemical tests. (a) When authorized. Any person who operates a
motor vehicle in this state shall be deemed to have given consent 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 provided that such test is administered by or at the direc-
tion of a police officer with respect to a chemical test of breath,
urine or saliva or, with respect to a chemical test of blood, at the
direction of a police officer:
(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,
(2) within two hours after a breath test OR SALIVA SWAB, as provided
in paragraph (b) of subdivision one of this section, indicates [that]
THE CONSUMPTION OF alcohol [has been consumed] OR DRUGS by such person
and in accordance with the rules and regulations established by the
police force of which the officer is a member;
(3) for the purposes of this paragraph, "reasonable grounds" to
believe that a person has been operating a motor vehicle after having
consumed alcohol in violation of section eleven hundred ninety-two-a of
this article shall be determined by viewing the totality of circum-
stances surrounding the incident which, when taken together, indicate
that the operator was driving in violation of such subdivision. Such
circumstances may include any visible or behavioral indication of alco-
hol consumption by the operator, the existence of an open container
containing or having contained an alcoholic beverage in or around the
vehicle driven by the operator, or any other evidence surrounding the
circumstances of the incident which indicates that the operator has been
operating a motor vehicle after having consumed alcohol at the time of
the incident; or
(4) notwithstanding any other provision of law to the contrary, no
person under the age of twenty-one shall be arrested for an alleged
violation of section eleven hundred ninety-two-a of this article.
However, a person under the age of twenty-one for whom a chemical test
is authorized pursuant to this paragraph may be temporarily detained by
the police solely for the purpose of requesting or administering such
chemical test whenever arrest without a warrant for a petty offense
would be authorized in accordance with the provisions of section 140.10
of the criminal procedure law or paragraph (a) of subdivision one of
this section.
(b) Report of refusal TO SUBMIT TO A CHEMICAL TEST. (1) If: (A) such
person having been placed under arrest; or (B) after a breath test indi-
cates the presence of alcohol in the person's system; or (C) with regard
to a person under the age of twenty-one, there are reasonable grounds to
believe that such person has been operating a motor vehicle after having
consumed alcohol in violation of section eleven hundred ninety-two-a of
this article; and having thereafter been requested to submit to such
chemical test and having been informed that the person's license or
permit to drive and any non-resident operating privilege shall be imme-
diately suspended and subsequently revoked, or, for operators under the
age of twenty-one for whom there are reasonable grounds to believe that
such operator has been operating a motor vehicle after having consumed
alcohol in violation of section eleven hundred ninety-two-a of this
S. 5345 3
article, shall be revoked for refusal to submit to such chemical test or
any portion thereof, whether or not the person is found guilty of the
charge for which such person is arrested or detained, refuses to submit
to such chemical test or any portion thereof, unless a court order has
been granted pursuant to subdivision three of this section, the test
shall not be given and a written report of such refusal shall be imme-
diately made by the police officer before whom such refusal was made.
Such report may be verified by having the report sworn to, or by affix-
ing to such report a form notice that false statements made therein are
punishable as a class A misdemeanor pursuant to section 210.45 of the
penal law and such form notice together with the subscription of the
deponent shall constitute a verification of the report.
(2) The report of the police officer shall set forth reasonable
grounds to believe such arrested person or such detained person under
the age of twenty-one had been driving in violation of any subdivision
of section eleven hundred ninety-two or eleven hundred ninety-two-a of
this article, that said person had refused to submit to such chemical
test, and that no chemical test was administered pursuant to the
requirements of subdivision three of this section. The report shall be
presented to the court upon arraignment of an arrested person, provided,
however, in the case of a person under the age of twenty-one, for whom a
test was authorized pursuant to the provisions of subparagraph two or
three of paragraph (a) of this subdivision, and who has not been placed
under arrest for a violation of any of the provisions of section eleven
hundred ninety-two of this article, such report shall be forwarded to
the commissioner within forty-eight hours in a manner to be prescribed
by the commissioner, and all subsequent proceedings with regard to
refusal to submit to such chemical test by such person shall be as set
forth in subdivision three of section eleven hundred ninety-four-a of
this article.
(3) For persons placed under arrest for a violation of any subdivision
of section eleven hundred ninety-two of this article, the license or
permit to drive and any non-resident operating privilege shall, upon the
basis of such written report, be temporarily suspended by the court
without notice pending the determination of a hearing as provided in
paragraph (c) of this subdivision. Copies of such report must be trans-
mitted by the court to the commissioner and such transmittal may not be
waived even with the consent of all the parties. Such report shall be
forwarded to the commissioner within forty-eight hours of such arraign-
ment.
(4) The court or the police officer, in the case of a person under the
age of twenty-one alleged to be driving after having consumed alcohol,
shall provide such person with a scheduled hearing date, a waiver form,
and such other information as may be required by the commissioner. If a
hearing, as provided for in paragraph (c) of this subdivision, or subdi-
vision three of section eleven hundred ninety-four-a of this article, is
waived by such person, the commissioner shall immediately revoke the
license, permit, or non-resident operating privilege, as of the date of
receipt of such waiver in accordance with the provisions of paragraph
(d) of this subdivision.
(c) Hearings. Any person whose license or permit to drive or any non-
resident driving privilege has been suspended pursuant to paragraph (b)
of this subdivision is entitled to a hearing in accordance with a hear-
ing schedule to be promulgated by the commissioner. If the department
fails to provide for such hearing fifteen days after the date of the
arraignment of the arrested person, the license, permit to drive or
S. 5345 4
non-resident operating privilege of such person shall be reinstated
pending a hearing pursuant to this section. The hearing shall be limited
to the following issues: (1) did the police officer have reasonable
grounds to believe that such person had been driving in violation of any
subdivision of section eleven hundred ninety-two of this article; (2)
did the police officer make a lawful arrest of such person; (3) was such
person given sufficient warning, in clear or unequivocal language, prior
to such refusal that such refusal to submit to such chemical test or any
portion thereof, would result in the immediate suspension and subsequent
revocation of such person's license or operating privilege whether or
not such person is found guilty of the charge for which the arrest was
made; and (4) did such person refuse to submit to such chemical test or
any portion thereof. If, after such hearing, the hearing officer, acting
on behalf of the commissioner, finds on any one of said issues in the
negative, the hearing officer shall immediately terminate any suspension
arising from such refusal. If, after such hearing, the hearing officer,
acting on behalf of the commissioner finds all of the issues in the
affirmative, such officer shall immediately revoke the license or permit
to drive or any non-resident operating privilege in accordance with the
provisions of paragraph (d) of this subdivision. A person who has had a
license or permit to drive or non-resident operating privilege suspended
or revoked pursuant to this subdivision may appeal the findings of the
hearing officer in accordance with the provisions of article three-A of
this chapter. Any person may waive the right to a hearing under this
section. Failure by such person to appear for the scheduled hearing
shall constitute a waiver of such hearing, provided, however, that such
person may petition the commissioner for a new hearing which shall be
held as soon as practicable.
(d) Sanctions. (1) Revocations. a. Any license which has been revoked
pursuant to paragraph (c) of this subdivision shall not be restored for
at least one year after such revocation, nor thereafter, except in the
discretion of the commissioner. However, no such license shall be
restored for at least eighteen months after such revocation, nor there-
after except in the discretion of the commissioner, in any case where
the person has had a prior revocation resulting from refusal to submit
to a chemical test, or has been convicted of or found to be in violation
of any subdivision of section eleven hundred ninety-two or section elev-
en hundred ninety-two-a of this article not arising out of the same
incident, within the five years immediately preceding the date of such
revocation; provided, however, a prior finding that a person under the
age of twenty-one has refused to submit to a chemical test pursuant to
subdivision three of section eleven hundred ninety-four-a of this arti-
cle shall have the same effect as a prior finding of a refusal pursuant
to this subdivision solely for the purpose of determining the length of
any license suspension or revocation required to be imposed under any
provision of this article, provided that the subsequent offense or
refusal is committed or occurred prior to the expiration of the
retention period for such prior refusal as set forth in paragraph (k) of
subdivision one of section two hundred one of this chapter.
b. Any license which has been revoked pursuant to paragraph (c) of
this subdivision or pursuant to subdivision three of section eleven
hundred ninety-four-a of this article, where the holder was under the
age of twenty-one years at the time of such refusal, shall not be
restored for at least one year, nor thereafter, except in the discretion
of the commissioner. Where such person under the age of twenty-one years
has a prior finding, conviction or youthful offender adjudication
S. 5345 5
resulting from a violation of section eleven hundred ninety-two or
section eleven hundred ninety-two-a of this article, not arising from
the same incident, such license shall not be restored for at least one
year or until such person reaches the age of twenty-one years, whichever
is the greater period of time, nor thereafter, except in the discretion
of the commissioner.
c. Any commercial driver's license which has been revoked pursuant to
paragraph (c) of this subdivision based upon a finding of refusal to
submit to a chemical test, where such finding occurs within or outside
of this state, shall not be restored for at least eighteen months after
such revocation, nor thereafter, except in the discretion of the commis-
sioner, but shall not be restored for at least three years after such
revocation, nor thereafter, except in the discretion of the commission-
er, if the holder of such license was operating a commercial motor vehi-
cle transporting hazardous materials at the time of such refusal. Howev-
er, such person shall be permanently disqualified from operating a
commercial motor vehicle in any case where the holder has a prior find-
ing of refusal to submit to a chemical test pursuant to this section or
has a prior conviction of any of the following offenses: any violation
of section eleven hundred ninety-two of this article; any violation of
subdivision one or two of section six hundred of this chapter; or has a
prior conviction of any felony involving the use of a motor vehicle
pursuant to paragraph (a) of subdivision one of section five hundred
ten-a of this chapter. Provided that the commissioner may waive such
permanent revocation after a period of ten years has expired from such
revocation provided:
(i) that during such ten year period such person has not been found to
have refused a chemical test pursuant to this section and has not been
convicted of any one of the following offenses: any violation of section
eleven hundred ninety-two of this article; refusal to submit to a chemi-
cal test pursuant to this section; any violation of subdivision one or
two of section six hundred of this chapter; or has a prior conviction of
any felony involving the use of a motor vehicle pursuant to paragraph
(a) of subdivision one of section five hundred ten-a of this chapter;
(ii) that such person provides acceptable documentation to the commis-
sioner that such person is not in need of alcohol or drug treatment or
has satisfactorily completed a prescribed course of such treatment; and
(iii) after such documentation is accepted, that such person is grant-
ed a certificate of relief from disabilities or a certificate of good
conduct pursuant to article twenty-three of the correction law by the
court in which such person was last penalized.
d. Upon a third finding of refusal and/or conviction of any of the
offenses which require a permanent commercial driver's license revoca-
tion, such permanent revocation may not be waived by the commissioner
under any circumstances.
(2) Civil penalties. Except as otherwise provided, any person whose
license, permit to drive, or any non-resident operating privilege is
revoked pursuant to the provisions of this section shall also be liable
for a civil penalty in the amount of five hundred dollars except that if
such revocation is a second or subsequent revocation pursuant to this
section issued within a five year period, or such person has been
convicted of a violation of any subdivision of section eleven hundred
ninety-two of this article within the past five years not arising out of
the same incident, the civil penalty shall be in the amount of seven
hundred fifty dollars. Any person whose license is revoked pursuant to
the provisions of this section based upon a finding of refusal to submit
S. 5345 6
to a chemical test while operating a commercial motor vehicle shall also
be liable for a civil penalty of five hundred fifty dollars except that
if such person has previously been found to have refused a chemical test
pursuant to this section while operating a commercial motor vehicle or
has a prior conviction of any of the following offenses while operating
a commercial motor vehicle: any violation of section eleven hundred
ninety-two of this article; any violation of subdivision two of section
six hundred of this chapter; or has a prior conviction of any felony
involving the use of a commercial motor vehicle pursuant to paragraph
(a) of subdivision one of section five hundred ten-a of this chapter,
then the civil penalty shall be seven hundred fifty dollars. No new
driver's license or permit shall be issued, or non-resident operating
privilege restored to such person unless such penalty has been paid. All
penalties collected by the department pursuant to the provisions of this
section shall be the property of the state and shall be paid into the
general fund of the state treasury.
(3) Effect of rehabilitation program. No period of revocation arising
out of this section may be set aside by the commissioner for the reason
that such person was a participant in the alcohol and drug rehabili-
tation program set forth in section eleven hundred ninety-six of this
article.
(e) Regulations. The commissioner shall promulgate such rules and
regulations as may be necessary to effectuate the provisions of subdivi-
sions one and two of this section.
(f) Evidence. Evidence of a refusal to submit to such chemical test or
any portion thereof shall be admissible in any trial, proceeding or
hearing based upon a violation of the provisions of section eleven
hundred ninety-two of this article but only upon a showing that the
person was given sufficient warning, in clear and unequivocal language,
of the effect of such refusal and that the person persisted in the
refusal.
(g) Results. Upon the request of the person who was tested, the
results of such test shall be made available to such person.
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.
(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 a police officer or a district attorney, as defined in
subdivision thirty-two of section 1.20 of the criminal 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) 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 OR SALIVA SWAB administered by a police officer in
accordance with paragraph (b) of subdivision one of this section indi-
cates [that] THE CONSUMPTION OF alcohol [has been consumed] OR DRUGS by
S. 5345 7
such person; OR A POLICE OFFICER TRAINED AND CERTIFIED AS A DRUG RECOG-
NITION EXPERT OR A POLICE OFFICER TRAINED AND CERTIFIED PURSUANT TO THE
FEDERAL ADVANCED ROADSIDE IMPAIRED DRIVING ENFORCEMENT PROGRAM HAS
REASON TO BELIEVE THAT SUCH PERSON IS UNDER THE INFLUENCE OF DRUGS OR
THE COMBINED INFLUENCE OF DRUGS AND ALCOHOL; 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.
(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 DRUGS OR DRUG PARAPHERNALIA; OR an open container containing an alco-
holic beverage in or around the vehicle driven by the operator; any
other evidence surrounding the circumstances of the incident which indi-
cates 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
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
S. 5345 8
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.
(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 2. This act shall take effect on the first of November next after it
shall have become a law.
