S T A T E   O F   N E W   Y O R K
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                                  5948

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             October 9, 2013
                               ___________

Introduced  by  Sen.  MARCELLINO  -- read twice and ordered printed, and
  when printed to be committed to the Committee on Rules

AN ACT to amend the penal law, in relation to expanding the  definitions
  of  vehicular assault in the first degree and vehicular assault in the
  second degree to include offenses involving use of  a  portable  elec-
  tronic device while driving; and to amend the vehicle and traffic law,
  in relation to expanding the definition of reckless driving to include
  offenses involving use of a portable electronic device while driving

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

  Section 1. 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 vessel or public vessel in violation of  para-
graph (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  alco-
hol and any drug or drugs, 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, and
such flammable gas, radioactive materials or explosives is the cause  of
such  serious physical injury, and as a result of such impairment by the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11910-01-3

              

S. 5948                             2

use of alcohol, 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,
four, or four-a of section eleven hundred ninety-two of the vehicle  and
traffic  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, operates such snowmobile or all terrain vehicle in a
manner that causes such serious physical injury to such other person; OR
  (4) OPERATES A MOTOR VEHICLE IN VIOLATION OF  SECTION  TWELVE  HUNDRED
TWENTY-FIVE-D  OF  THE  VEHICLE AND TRAFFIC LAW, AND OPERATES SUCH MOTOR
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 unlawfully intoxicated or impaired by the
use of alcohol or a drug, then there shall be a  rebuttable  presumption
that, as a result of such intoxication or impairment by the use of alco-
hol  or  a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, 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 2. Section 120.04 of the penal law, as amended by chapter 496 of the
laws of 2009, is amended to read as follows:
S 120.04 Vehicular assault in the first degree.
  A person is guilty of vehicular assault in the first degree when he or
she  commits  the  crime  of  vehicular  assault in the second degree as
defined in section 120.03 of this article, and either:
  (1) commits such crime while operating  a  motor  vehicle  while  such
person  has  .18  of one per centum or more by weight of alcohol in such
person's blood as shown by chemical analysis  of  such  person's  blood,
breath, urine or saliva made pursuant to the provisions of section elev-
en hundred ninety-four of the vehicle and traffic law;
  (2)  commits  such  crime while knowing or having reason to know that:
(a) his or her license or his or her  privilege  of  operating  a  motor
vehicle  in another state or his or her privilege of obtaining a license
to operate a motor vehicle in another state is suspended or revoked  and
such  suspension  or revocation is based upon a conviction in such other
state for an offense which would, if committed in this state, constitute
a violation of any of the provisions of section eleven  hundred  ninety-
two  of the vehicle and traffic law; or (b) his or her license or his or
her privilege of operating a motor vehicle in the state or  his  or  her
privilege  of  obtaining  a  license issued by the commissioner of motor
vehicles is suspended or revoked and such suspension  or  revocation  is
based  upon  either  a  refusal to submit to a chemical test pursuant to
section eleven hundred ninety-four of the vehicle  and  traffic  law  or
following  a  conviction  for  a  violation  of any of the provisions of
section eleven hundred ninety-two of the vehicle and traffic law;
  (3) has previously been convicted of violating any of  the  provisions
of  section  eleven  hundred  ninety-two  of the vehicle and traffic law
within the preceding ten years, provided that, for the purposes of  this
subdivision,  a  conviction  in  any  other state or jurisdiction for an

S. 5948                             3

offense which, if committed in this state, would constitute a  violation
of  section  eleven  hundred  ninety-two of the vehicle and traffic law,
shall be treated as a violation of such law;
  (4) causes serious physical injury to more than one other person;
  (5)  has  previously been convicted of violating any provision of this
article or article one hundred twenty-five of this title  involving  the
operation  of  a  motor  vehicle, or was convicted in any other state or
jurisdiction of an offense involving the operation of  a  motor  vehicle
which,  if committed in this state, would constitute a violation of this
article or article one hundred twenty-five of this title; [or]
  (6) commits such crime while operating a motor vehicle while  a  child
who is fifteen years of age or less is a passenger in such motor vehicle
and causes serious physical injury to such child; OR
  (7)  HAS  PREVIOUSLY  BEEN  CONVICTED  OF  VIOLATING  ANY PROVISION OF
SECTION TWELVE HUNDRED TWENTY-FIVE-D OF THE VEHICLE AND TRAFFIC LAW,  OR
WAS CONVICTED IN ANY OTHER STATE OR JURISDICTION OF AN OFFENSE INVOLVING
THE  OPERATION  OF  A  MOTOR  VEHICLE  WHILE USING A PORTABLE ELECTRONIC
DEVICE WHICH, IF COMMITTED IN THIS STATE, WOULD CONSTITUTE  A  VIOLATION
OF SECTION TWELVE HUNDRED TWENTY-FIVE-D OF THE VEHICLE AND TRAFFIC LAW.
  If  it  is  established  that  the person operating such motor vehicle
caused such serious physical injury or injuries while unlawfully intoxi-
cated 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, 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, 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.
  Vehicular assault in the first degree is a class D felony.
  S  3. Section 1212 of the vehicle and traffic law, as added by chapter
47 of the laws of 1988, is amended to read as follows:
  S 1212. Reckless driving. Reckless driving shall mean:
  (1) driving or using any motor vehicle, motorcycle or any other  vehi-
cle propelled by any power other than muscular power or any appliance or
accessory  thereof  in  a  manner which unreasonably interferes with the
free and proper use of the public  highway,  or  unreasonably  endangers
users of the public highway; OR
  (2)  DRIVING OR USING ANY MOTOR VEHICLE, MOTORCYCLE OR ANY OTHER VEHI-
CLE PROPELLED BY ANY POWER OTHER THAN MUSCULAR POWER OR ANY APPLIANCE OR
ACCESSORY THEREOF WHILE USING A PORTABLE ELECTRONIC DEVICE IN  VIOLATION
OF  THE PROVISIONS OF SECTION TWELVE HUNDRED TWENTY-FIVE-D OF THIS ARTI-
CLE.  Reckless  driving  is  prohibited.  Every  person  violating  this
provision shall be guilty of a misdemeanor.
  S 4. This act shall take effect on the first of November next succeed-
ing the date upon which it shall have become a law.