S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    364
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  ROBACH -- 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.
                                                            LBD02899-01-7

 S. 364                              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. 364                              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. 364                              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. 364                              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. 364                              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. 364                              7
 
 such  person; OR A POLICE OFFICER TRAINED AND CERTIFIED AS A DRUG RECOG-
 NITION EXPERT OR A POLICE OFFICER WHO HAS COMPLETED TRAINING 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. 364                              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.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.