S T A T E   O F   N E W   Y O R K
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                                  3850

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2013
                               ___________

Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
  tee on Transportation

AN ACT to amend the vehicle and traffic law, in relation to the criminal
  penalties for operating a motor vehicle under the influence of alcohol
  or drugs and providing for impoundment of  the  vehicle  driven  while
  under the influence of alcohol or drugs

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

  Section 1. Paragraph (a) and subparagraph  (i)  of  paragraph  (b)  of
subdivision  1 of section 1193 of the vehicle and traffic law, paragraph
(a) as amended by chapter 75 of the laws of 1994 and subparagraph (i) of
paragraph (b) as amended by chapter 496 of the laws of 2009, are amended
to read as follows:
  (a) Driving while ability impaired. A violation of subdivision one  of
section  eleven  hundred  ninety-two  of this article shall be a traffic
infraction and shall be punishable by a fine  of  not  less  than  three
hundred dollars nor more than five hundred dollars or by imprisonment in
a  penitentiary  or  county  jail  for  not more than fifteen days OR BY
IMPOUNDMENT OF THE VEHICLE USED IN THE OFFENSE FOR A PERIOD OF NOT  MORE
THAN FIFTEEN DAYS, or by both such fine and imprisonment OR BY BOTH SUCH
FINE  AND IMPOUNDMENT.   A person who operates a vehicle in violation of
such subdivision after having been  convicted  of  a  violation  of  any
subdivision  of section eleven hundred ninety-two of this article within
the preceding five years shall be punished by a fine of  not  less  than
five  hundred  dollars  nor more than seven hundred fifty dollars, or by
imprisonment of not more than thirty days in a  penitentiary  or  county
jail  OR  BY IMPOUNDMENT OF THE VEHICLE USED IN THE OFFENSE FOR A PERIOD
OF NOT MORE THAN THIRTY DAYS or by both such fine and imprisonment OR BY
BOTH SUCH FINE AND IMPOUNDMENT.   A person who  operates  a  vehicle  in
violation  of  such  subdivision after having been convicted two or more
times of a violation of any subdivision of section eleven hundred  nine-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07695-01-3
              

A. 3850                             2

ty-two of this article within the preceding ten years shall be guilty of
a  misdemeanor,  and  shall be punished by a fine of not less than seven
hundred fifty dollars nor more  than  fifteen  hundred  dollars,  or  by
imprisonment  of not more than one hundred eighty days in a penitentiary
or county jail OR BY IMPOUNDMENT OF THE VEHICLE USED IN THE OFFENSE  FOR
A PERIOD OF NOT MORE THAN NINETY DAYS or by both such fine and imprison-
ment OR BY BOTH SUCH FINE AND IMPOUNDMENT.
  (i)  A  violation of subdivision two, three, four or four-a of section
eleven hundred ninety-two of this article shall  be  a  misdemeanor  and
shall  be punishable by a fine of not less than five hundred dollars nor
more than one thousand dollars, or by imprisonment in a penitentiary  or
county  jail for not more than one year OR BY IMPOUNDMENT OF THE VEHICLE
USED IN THE OFFENSE FOR A PERIOD OF NOT MORE THAN ONE YEAR, or  by  both
such  fine  and  imprisonment  OR  BY BOTH SUCH FINE AND IMPOUNDMENT.  A
violation of paragraph  (a)  of  subdivision  two-a  of  section  eleven
hundred  ninety-two  of this article shall be a misdemeanor and shall be
punishable by a fine of not less than one thousand dollars nor more than
two thousand five hundred dollars or by imprisonment in  a  penitentiary
or  county  jail  for  not  more than one year, or by both such fine and
imprisonment.
  S 2. Subdivision 1 of section 1193 of the vehicle and traffic  law  is
amended by adding a new paragraph (h) to read as follows:
  (H)  NO SENTENCE OF IMPOUNDMENT MAY BE IMPOSED PURSUANT TO THIS SUBDI-
VISION UNTIL THE OWNER OF THE MOTOR VEHICLE USED IN THE OFFENSE HAS BEEN
NOTIFIED THAT IMPOUNDMENT MAY BE ORDERED AND THEY ARE GIVEN A REASONABLE
OPPORTUNITY TO DEMONSTRATE WHY SUCH SENTENCE SHOULD NOT BE  IMPOSED.  IN
EXERCISING  ITS SENTENCING DISCRETION IN ANY CASE WHERE THE OWNER OF THE
MOTOR VEHICLE USED IN THE OFFENSE IS NOT THE DEFENDANT, THE COURT  SHALL
CONSIDER  (1)  THE  DUE  DILIGENCE EXERCISED BY THE OWNER TO PREVENT THE
UNLAWFUL USE OF THE MOTOR VEHICLE BY THE DEFENDANT, AND  (2)  THE  UNDUE
HARDSHIP TO THE OWNER IN THE EVENT OF A SENTENCE OF IMPOUNDMENT.
  S  3.  The  vehicle and traffic law is amended by adding a new section
1193-a to read as follows:
  S 1193-A. IMPOUNDMENT AND REDEMPTION OF VEHICLES. 1. WHEN  A  SENTENCE
OF  IMPOUNDMENT  IS  IMPOSED BY THE COURT PURSUANT TO SUBDIVISION ONE OF
SECTION ELEVEN HUNDRED NINETY-THREE OF THIS  ARTICLE,  THE  OWNER  SHALL
SURRENDER  THE  VEHICLE  USED  IN THE OFFENSE TO AN OFFICER OF THE LOCAL
AUTHORITY, WHO SHALL REMOVE OR ARRANGE FOR THE REMOVAL OF THE VEHICLE TO
A GARAGE, AUTOMOBILE POUND, OR OTHER PLACE  OF  SAFETY  WHERE  IT  SHALL
REMAIN IMPOUNDED FOR THE TIME IMPOSED BY THE SENTENCING COURT. THE VEHI-
CLE  SHALL  BE  ENTERED  INTO  THE NEW YORK STATEWIDE POLICE INFORMATION
NETWORK AS AN IMPOUNDED VEHICLE.
  2. A MOTOR VEHICLE SO IMPOUNDED SHALL BE IN THE CUSTODY OF  THE  LOCAL
AUTHORITY AND SHALL NOT BE RELEASED UNTIL:
  (A) THE EXPIRATION OF THE IMPOUNDMENT PERIOD IMPOSED BY THE SENTENCING
COURT.
  (B) PAYMENT HAS BEEN MADE FOR THE REASONABLE COSTS OF REMOVAL, STORAGE
AND PROCESSING OF THE MOTOR VEHICLE. THE REGISTERED OWNER OF THE VEHICLE
SHALL  BE  RESPONSIBLE FOR SUCH PAYMENT PROVIDED, HOWEVER, THAT IF HE OR
SHE WAS NOT THE OPERATOR AT THE TIME OF THE OFFENSE HE OR SHE SHALL HAVE
A CAUSE OF ACTION AGAINST SUCH OPERATOR TO RECOVER SUCH COSTS.
  (C) WHERE THE MOTOR VEHICLE WAS OPERATED BY A PERSON WHO AT  THE  TIME
OF  THE  OFFENSE  WAS  THE OWNER THEREOF, SATISFACTORY EVIDENCE THAT THE
REGISTERED OWNER OR OTHER PERSON SEEKING TO REDEEM  THE  VEHICLE  HAS  A
LICENSE OR PRIVILEGE TO OPERATE A MOTOR VEHICLE IN THIS STATE.

A. 3850                             3

  3.  IF  FIFTEEN  DAYS  HAVE ELAPSED FROM THE EXPIRATION OF THE TERM OF
IMPOUNDMENT IMPOSED BY THE SENTENCING COURT, AND THE MOTOR  VEHICLE  HAS
NOT BEEN RELEASED PURSUANT TO SUBDIVISION TWO OF THIS SECTION, THE LOCAL
AUTHORITY SHALL MAKE INQUIRY IN THE MANNER PRESCRIBED BY THE COMMISSION-
ER  AS  TO THE NAME AND ADDRESS OF THE OWNER AND ANY LIENHOLDER AND UPON
RECEIPT OF SUCH INFORMATION SHALL NOTIFY THE OWNER AND  THE  LIENHOLDER,
IF  ANY,  AT  HIS  OR  HER  LAST KNOWN ADDRESS BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, THAT IF THE VEHICLE  IS  NOT  RETRIEVED  PURSUANT  TO
SUBDIVISION  TWO  OF  THIS  SECTION WITHIN THIRTY DAYS FROM THE DATE THE
NOTICE IS GIVEN, IT WILL BE FORFEITED. IF THE VEHICLE WAS REGISTERED  IN
NEW YORK STATE THE LAST KNOWN ADDRESS SHALL BE THAT ADDRESS ON FILE WITH
THE  COMMISSIONER. IF THE VEHICLE WAS REGISTERED OUT-OF-STATE OR WAS NOT
REGISTERED, NOTIFICATION SHALL BE MADE IN THE MANNER PRESCRIBED  BY  THE
COMMISSIONER.
  4.  A MOTOR VEHICLE THAT HAS BEEN IMPOUNDED AND NOT RETRIEVED PURSUANT
TO THE FOREGOING PROVISIONS OF THIS SECTION SHALL BE  FORFEITED  TO  THE
LOCAL  AUTHORITY  UPON  EXPIRATION  OF THE PERIOD OF NOTICE SET FORTH IN
SUBDIVISION THREE OF THIS SECTION. A PROCEEDING TO DECREE  SUCH  FORFEI-
TURE AND TO RECOVER TOWING AND STORAGE COSTS, IF ANY, TO THE EXTENT SUCH
COSTS EXCEED THE FAIR MARKET VALUE OF THE VEHICLE, MAY BE BROUGHT BY THE
LOCAL  AUTHORITY  IN  THE COURT IN WHICH THE DEFENDANT WAS SENTENCED FOR
THE CRIME OF DRIVING WHILE ABILITY IMPAIRED OR DRIVING WHILE INTOXICATED
BY PETITION FOR AN ORDER  DECREEING  FORFEITURE  OF  THE  MOTOR  VEHICLE
ACCOMPANIED  BY  AN AFFIDAVIT ATTESTING TO FACTS SHOWING THAT FORFEITURE
IS WARRANTED. IF THE IDENTITY AND ADDRESS OF THE OWNER AND/OR LIENHOLDER
IS KNOWN TO THE LOCAL AUTHORITY, TEN DAYS NOTICE SHALL BE GIVEN TO  SUCH
PARTY,  WHO  SHALL  HAVE  AN OPPORTUNITY TO APPEAR AND BE HEARD PRIOR TO
ENTRY OF AN ORDER DECREEING FORFEITURE.   WHERE THE COURT  IS  SATISFIED
THAT  FORFEITURE OF A MOTOR VEHICLE IS WARRANTED IN ACCORDANCE WITH THIS
SECTION, IT SHALL ENTER AN ORDER DECREEING THE FORFEITURE OF SUCH  VEHI-
CLE.  PROVIDED,  HOWEVER,  THAT  THE COURT AT ANY TIME PRIOR TO ENTRY OF
SUCH ORDER MAY AUTHORIZE RELEASE  OF  THE  VEHICLE  IN  ACCORDANCE  WITH
SUBDIVISION TWO OF THIS SECTION UPON A SHOWING OF GOOD CAUSE FOR FAILURE
TO  RETRIEVE  SAME  PRIOR  TO  COMMENCEMENT  OF THE PROCEEDING TO DECREE
FORFEITURE, BUT IF THE COURT ORDERS RELEASE  OF  THE  MOTOR  VEHICLE  AS
HEREIN PROVIDED AND THE VEHICLE IS NOT REDEEMED WITHIN TEN DAYS FROM THE
DATE  OF  SUCH ORDER, THE VEHICLE SHALL BE DEEMED TO HAVE BEEN ABANDONED
AND THE COURT, UPON APPLICATION OF THE LOCAL AUTHORITY,  MUST  ENTER  AN
ORDER DECREEING ITS FORFEITURE.
  5. A MOTOR VEHICLE FORFEITED IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION SHALL BE AND BECOME THE PROPERTY OF THE LOCAL AUTHORITY, SUBJECT
HOWEVER  TO  ANY  LIEN THAT WAS RECORDED PRIOR TO THE IMPOUNDMENT OF THE
VEHICLE.
  6. FOR THE PURPOSES OF THIS SECTION, THE TERM "LOCAL AUTHORITY"  MEANS
THE  MUNICIPALITY  IN WHICH THE MOTOR VEHICLE WAS SEIZED; EXCEPT THAT IF
THE MOTOR VEHICLE WAS SEIZED ON PROPERTY OF THE NEW YORK  STATE  THRUWAY
AUTHORITY  OR  PROPERTY  UNDER  THE JURISDICTION OF THE OFFICE OF PARKS,
RECREATION AND HISTORIC PRESERVATION, THE DEPARTMENT OF  TRANSPORTATION,
OR  A  PUBLIC  AUTHORITY OR COMMISSION, THE TERM "LOCAL AUTHORITY" MEANS
SUCH AUTHORITY, OFFICE, DEPARTMENT, OR COMMISSION. A COUNTY MAY  PROVIDE
BY  LOCAL LAW THAT THE COUNTY MAY ACT AS THE AGENT FOR A LOCAL AUTHORITY
UNDER THIS SECTION.
  7. WHEN A VEHICLE HAS BEEN IMPOUNDED PURSUANT  TO  THIS  SECTION,  THE
LOCAL  AUTHORITY  OR ANY PERSON HAVING CUSTODY OF THE VEHICLE SHALL MAKE
THE VEHICLE AVAILABLE OR GRANT ACCESS TO IT TO ANY OWNER OR  ANY  PERSON
DESIGNATED  OR  AUTHORIZED  BY  SUCH OWNER FOR THE PURPOSE OF (A) TAKING

A. 3850                             4

POSSESSION OF ANY PERSONAL PROPERTY FOUND WITHIN  THE  VEHICLE  AND  (B)
OBTAINING PROOF OF REGISTRATION, FINANCIAL SECURITY, TITLE OR DOCUMENTA-
TION IN SUPPORT THEREOF.
  8. UPON APPLICATION BY THE DEFENDANT, THE SENTENCING COURT MAY FASHION
AN  ALTERNATIVE  METHOD OF DISABLING AND/OR SECURING THE CAR FROM USE BY
THE DEFENDANT FOR THE DURATION OF THE IMPOUNDMENT PERIOD.
  9. ANY PERSON WHO KNOWINGLY FAILS TO SURRENDER A VEHICLE FOR  IMPOUND-
MENT  PURSUANT TO THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR PUNISHA-
BLE BY A FINE OF NOT LESS THAN FIVE HUNDRED DOLLARS NOR  MORE  THAN  ONE
THOUSAND  DOLLARS,  OR  BY IMPRISONMENT IN A PENITENTIARY OR COUNTY JAIL
FOR NOT MORE THAN ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT.
  S 4. This act  shall  take  effect  immediately  and  shall  apply  to
proceedings commenced on and after such date.