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

                                  2744

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 17, 2013
                               ___________

Introduced  by  M.  of A. GABRYSZAK, BENEDETTO, DINOWITZ, FINCH, JAFFEE,
  KAVANAGH, KOLB, MILLMAN, WRIGHT, CASTRO, BOYLAND, ROSENTHAL,  SCHIMEL,
  STEVENSON,  CERETTO,  KEARNS,  RAIA, McLAUGHLIN, ENGLEBRIGHT, GOODELL,
  WALTER, HOOPER -- Multi-Sponsored by  --  M.  of  A.  AUBRY,  BRENNAN,
  CLARK,  CROUCH, DUPREY, GIBSON, GOTTFRIED, LUPARDO, MAISEL, McDONOUGH,
  OAKS, SALADINO, THIELE, WEISENBERG -- read once and  referred  to  the
  Committee on Transportation

AN  ACT  to  amend the vehicle and traffic law, in relation to mandatory
  testing in the event of a motor vehicle collision resulting in  injury
  or death

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

  Section 1. Subparagraphs 1 and 2 of paragraph (a) of subdivision 2  of
section  1194  of the vehicle and traffic law, as amended by chapter 196
of the laws of 1996, are amended and a new subparagraph 2-a is added  to
read as follows:
  (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, OR
  (2) within two hours after a breath test, as provided in paragraph (b)
of subdivision one of this section,  indicates  that  alcohol  has  been
consumed by such person and in accordance with the rules and regulations
established by the police force of which the officer is a member[;], OR
  (2-A)  HAVING  REASONABLE  GROUNDS TO BELIEVE SUCH PERSON TO HAVE BEEN
OPERATING A MOTOR VEHICLE IN A MANNER THAT CAUSES SERIOUS PHYSICAL INJU-
RY AS DEFINED IN SECTION 10.00 OF THE PENAL LAW TO,  OR  THE  DEATH  OF,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05636-01-3

              

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ANOTHER  PERSON AND WITHIN TWO HOURS AFTER SUCH OPERATION WHICH RESULTED
IN SUCH SERIOUS PHYSICAL INJURY OR DEATH, OR
  S  2. Subdivision 3 of section 1194 of the vehicle and traffic law, as
added by chapter 47 of the laws of 1988, is amended to read as follows:
  3. Compulsory chemical tests. (a) [Court] MANDATORY AND 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 alco-
holic and/or drug content of the blood when (I) a court order  for  such
chemical  test has been issued in accordance with the provisions of this
subdivision OR (II) SUCH PERSON OPERATED A MOTOR  VEHICLE  IN  A  MANNER
THAT CAUSES THE DEATH OF ANOTHER PERSON.
  (b)  [When]  COURT  ORDERED  CHEMICAL TESTS, WHEN authorized. Upon (I)
refusal by any person to submit to a chemical test or any portion there-
of [as described above] REQUESTED BY A POLICE OFFICER, PURSUANT  TO  THE
PROVISIONS  OF SUBPARAGRAPH TWO-A OF PARAGRAPH (A) OF SUBDIVISION TWO OF
THIS SECTION, HAVING REASONABLE CAUSE TO BELIEVE  SUCH  PERSON  TO  HAVE
BEEN  OPERATING A MOTOR VEHICLE IN A MANNER THAT CAUSED SERIOUS PHYSICAL
INJURY TO ANOTHER PERSON, OR (II) THE INABILITY OF ANY  PERSON  TO  GIVE
CONSENT  TO A CHEMICAL TEST OR ANY PORTION THEREOF REQUESTED BY A POLICE
OFFICER, PURSUANT TO THE PROVISIONS OF SUBPARAGRAPH TWO-A  OF  PARAGRAPH
(A)  OF  SUBDIVISION  TWO  OF  THIS  SECTION, HAVING REASONABLE CAUSE TO
BELIEVE SUCH PERSON TO HAVE BEEN OPERATING A MOTOR VEHICLE IN  A  MANNER
THAT CAUSED SERIOUS PHYSICAL INJURY TO, OR THE DEATH OF, ANOTHER PERSON,
the test shall not be given unless a police officer or a district attor-
ney,  as defined in subdivision thirty-two of section 1.20 of the crimi-
nal 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) (A) 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 administered by a police officer in  accordance  with
paragraph  (b) of subdivision one of this section indicates that alcohol
has been consumed by such person; and
  (3) such person has been placed under lawful arrest; and
  (4)] (B) such person has refused to submit to a chemical test  or  any
portion thereof, requested in accordance with the provisions of SUBPARA-
GRAPH  TWO-A  OF paragraph (a) of subdivision two of this section or [is
unable to give consent to such a test]
  (2) (A) 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
  (B) SUCH PERSON WAS 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

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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  an  open container containing an alcoholic beverage in or around the
vehicle driven by the  operator;  any  other  evidence  surrounding  the
circumstances of the incident which indicates 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] OPERATING  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.
  (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
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-

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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 3. This act shall take effect on the first of November next succeed-
ing  the  date  on  which it shall have become a law, and shall apply to
violations committed on and after such date.