S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    174
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced by M. of A. MAGNARELLI, STERN, WALLACE, WOERNER, BUTTENSCHON,
   SILLITTI,  THIELE,  JEAN-PIERRE, BURDICK, STIRPE, McMAHON, JACOBSON --
   read once and referred to the Committee on Transportation
 
 AN ACT to amend the vehicle and traffic law, in relation  to  procedures
   relating to driving while ability impaired by drugs
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 114-a of the vehicle and traffic law, as amended by
 chapter 92 of the laws of 2021, is amended to read as follows:
   § 114-a. Drug. The term "drug" when used in this  chapter,  means  and
 includes any substance listed in section thirty-three hundred six of the
 public  health  law and cannabis and concentrated cannabis as defined in
 section 222.00 of the penal law AND  ANY  SUBSTANCE  OR  COMBINATION  OF
 SUBSTANCES THAT IMPAIR, TO ANY EXTENT, PHYSICAL OR MENTAL ABILITIES.
   §  2. Section 119-b of the vehicle and traffic law is renumbered 119-c
 and a new section 119-b is added to read as follows:
   § 119-B. IMPAIRED. IMPAIRMENT IS REACHED WHEN A DRIVER HAS VOLUNTARILY
 CONSUMED OR INGESTED A SUBSTANCE OR COMBINATION  OF  SUBSTANCES  TO  THE
 EXTENT  THAT  THE  DRIVER  HAS IMPAIRED, TO ANY EXTENT, THE PHYSICAL AND
 MENTAL ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPER-
 ATE A VEHICLE AS A REASONABLE AND PRUDENT DRIVER.
   § 3. The vehicle and traffic law is amended by adding  a  new  section
 120-a to read as follows:
   §  120-A. INTOXICATION. INTOXICATION IS A GREATER DEGREE OF IMPAIRMENT
 WHICH IS REACHED WHEN A DRIVER HAS VOLUNTARILY CONSUMED  OR  INGESTED  A
 SUBSTANCE  OR COMBINATION OF SUBSTANCES TO THE EXTENT THAT THE DRIVER IS
 INCAPABLE, TO A SUBSTANTIAL EXTENT, OF EMPLOYING THE PHYSICAL AND MENTAL
 ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER  TO  OPERATE  A
 VEHICLE AS A REASONABLE AND PRUDENT DRIVER.
   §  4. Subdivisions 1, 2 and 3 of section 1194 of the vehicle and traf-
 fic law, as added by chapter 47 of the laws of 1988,  paragraph  (a)  of
 subdivision  2 as amended by chapter 196 of the laws of 1996, paragraphs
 (b) and (c) of subdivision 2 as amended by chapter 489 of  the  laws  of
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00346-01-3
 A. 174                              2
 
 2017,  clause  (A) of subparagraph 1, subparagraphs 2 and 3 of paragraph
 (b), subparagraphs 1, 2 and 3 of  paragraph  (c)  of  subdivision  2  as
 amended  by  chapter  27  of  the laws of 2018, 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 subparagraph 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 ORAL/BODILY FLUID TEST to be admin-
 istered by the police officer. If such test indicates that such operator
 has consumed alcohol OR A DRUG OR DRUGS, the police officer may  request
 such  operator  to  submit  to  a  chemical  test  AND/OR  AN EVALUATION
 CONDUCTED BY A DRUG RECOGNITION EXPERT in the manner set forth in subdi-
 vision two of this section.
   (C) REFUSAL TO SUBMIT TO A BREATH TEST AND/OR ORAL/BODILY  FLUID  TEST
 PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION SHALL BE A TRAFFIC INFRAC-
 TION.
   2.  Chemical  tests AND DRUG RECOGNITION EVALUATIONS. (a) When author-
 ized.  Any person who operates a motor vehicle in this  state  shall  be
 deemed  to  have given consent to AN EVALUATION CONDUCTED BY A CERTIFIED
 DRUG RECOGNITION EXPERT, AND/OR a chemical test of one or  more  of  the
 following:  breath, blood, urine, or [saliva] ORAL/BODILY FLUID, for the
 purpose of determining the alcoholic and/or drug content [of the  blood]
 provided  that  such  test  is  administered by or at the direction of a
 police officer with respect to a  chemical  test  of  breath,  urine  or
 [saliva] ORAL/BODILY FLUID 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, 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;
   (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
 A. 174                              3
 
 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
 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT is
 authorized pursuant to this paragraph may be temporarily detained by the
 police solely for the purpose of requesting or administering such chemi-
 cal test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG  RECOGNITION
 EXPERT  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.
   (A-1) FOR THE PURPOSES OF THIS SECTION THE DRIVER SHALL NOT BE  DEEMED
 TO  CONSENT  TO  ANSWER  CUSTODIAL  QUESTIONS  AS  PART OF AN EVALUATION
 CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT PURSUANT  TO  PARAGRAPH
 (A) OF THIS SUBDIVISION AND DECLINING TO ANSWER SUCH QUESTIONS SHALL NOT
 CONSTITUTE A REFUSAL TO SUBMIT TO THE EVALUATION WHEN THE DRIVER SUBMITS
 TO  THE OTHER PORTIONS OF SUCH EVALUATION AND NO REPORT OF REFUSAL SHALL
 BE MADE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION AND  THE  DRIVER'S
 LICENSE  SHALL NOT BE REVOKED PURSUANT TO PARAGRAPHS (C) AND (D) OF THIS
 SUBDIVISION SOLELY ON THE BASIS OF THE DRIVER DECLINING TO  ANSWER  SUCH
 CUSTODIAL QUESTIONS.
   (b)  Report  of  refusal.  (1)  If: (A) such person having been placed
 under arrest; or (B) after a breath AND/OR ORAL/BODILY FLUID test  indi-
 cates  the  presence  of  alcohol AND/OR A DRUG OR DRUGS 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 oper-
 ating a motor vehicle after having  consumed  alcohol  in  violation  of
 section  eleven  hundred ninety-two-a of this article; and having there-
 after been requested to submit to such chemical test  AND/OR  AN  EVALU-
 ATION  CONDUCTED  BY A CERTIFIED DRUG RECOGNITION EXPERT and having been
 informed that the person's license or permit to drive and any  non-resi-
 dent operating privilege shall be immediately 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  article,  shall  be  revoked  for
 refusal  to  submit to such chemical test or any portion thereof, AND/OR
 AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION  EXPERT  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,] AND/OR AN EVALU-
 ATION  CONDUCTED  BY  A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION
 THEREOF the test shall not be given and a written report of such refusal
 shall be immediately made by the police officer before whom such refusal
 was made. Such report may be verified by having the report sworn to,  or
 by  affixing  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
 A. 174                              4
 
 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] OR AN EVALUATION
 CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF.
 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 subdi-
 vision, 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 subse-
 quent proceedings with regard to refusal to submit to such chemical test
 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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
 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
 A. 174                              5
 
 portion thereof AND/OR AN  EVALUATION  CONDUCTED  BY  A  CERTIFIED  DRUG
 RECOGNITION EXPERT OR ANY PORTION THEREOF, would result in the immediate
 suspension and subsequent revocation of such person's license or operat-
 ing  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 AND/OR AN EVALUATION
 CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF.
 A REFUSAL TO ANSWER  CUSTODIAL  QUESTIONS  SHALL  NOT  BE  CONSIDERED  A
 REFUSAL  FOR THE PURPOSES OF THIS SECTION PURSUANT TO PARAGRAPH (A-1) OF
 THIS SUBDIVISION. If, after such hearing, the hearing officer, acting on
 behalf of the commissioner, finds on any one of said issues in the nega-
 tive, 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 AND/OR AN EVALUATION CONDUCTED BY  A  CERTIFIED  DRUG
 RECOGNITION  EXPERT  OR ANY PORTION THEREOF, or has been convicted of or
 found to be in violation of any subdivision of  section  eleven  hundred
 ninety-two  or  section  eleven 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 find-
 ing that a person under the age of twenty-one has refused to submit to a
 chemical test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG  RECOG-
 NITION  EXPERT  OR  ANY PORTION THEREOF pursuant to subdivision three of
 section eleven hundred ninety-four-a of this article 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 suspen-
 sion 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
 A. 174                              6
 
 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 AND/OR AN EVALUATION CONDUCTED BY A  CERTIFIED
 DRUG  RECOGNITION  EXPERT  OR  ANY  PORTION  THEREOF, 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 commissioner, but shall not  be  restored  for  at
 least  three  years after such revocation, nor thereafter, except in the
 discretion of the commissioner, if the holder of such license was  oper-
 ating a commercial motor vehicle transporting hazardous materials at the
 time of such refusal. However, such person shall be permanently disqual-
 ified  from  operating  a commercial motor vehicle in any case where the
 holder has a prior finding of refusal  to  submit  to  a  chemical  test
 AND/OR  AN  EVALUATION THEREOF CONDUCTED BY A CERTIFIED DRUG RECOGNITION
 EXPERT OR ANY PORTION THEREOF 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 OR AN EVALUATION CONDUCTED BY  A  CERTIFIED
 DRUG  RECOGNITION EXPERT OR ANY PORTION THEREOF 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 chemical test OR AN EVALUATION CONDUCTED BY  A  CERTIFIED
 DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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
 A. 174                              7
 
 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
 to  a  chemical  test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG
 RECOGNITION EXPERT OR ANY PORTION THEREOF 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 AND/OR AN EVALUATION CONDUCTED BY A CERTI-
 FIED DRUG RECOGNITION EXPERT OR ANY PORTION  THEREOF  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 penal-
 ty  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 OR AN EVALUATION CONDUCTED  BY  A  DRUG  RECOGNITION
 EXPERT OR ANY PORTION THEREOF shall be admissible in any trial, proceed-
 ing or hearing based upon a violation of the provisions of section elev-
 en  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. EVIDENCE OF A REFUSAL SHALL  BE  ADMISSIBLE  PURSUANT  TO  THIS
 SECTION REGARDLESS OF THE TIME OF 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] ORAL/BODILY FLUIDS, for the purpose of determining the alco-
 holic  and/or  drug  content  of  the blood OR ORAL/BODILY FLUIDS 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,
 A. 174                              8
 
 requests  and  obtains  a  court order to compel a person to submit to a
 chemical test to determine the alcoholic [or] AND/OR drug content of the
 person's blood OR ORAL/BODILY FLUIDS 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] THE MOTOR VEHICLE WAS INVOLVED IN A CRASH; OR PERSONAL INJURY
 HAS BEEN CAUSED TO ANOTHER PERSON, DUE  TO  AN  INCIDENT  INVOLVING  THE
 MOTOR  VEHICLE  OPERATED  BY  SUCH  PERSON OR SUCH PERSON HAS A PREVIOUS
 CONVICTION FOR A VIOLATION OF ANY SUBDIVISION OF SECTION ELEVEN  HUNDRED
 NINETY-TWO OF THIS ARTICLE; 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 AND/OR  ORAL/BODILY  FLUID  test  administered  by  a
 police  officer  in  accordance with paragraph (b) of subdivision one of
 this section indicates that alcohol AND/OR A  DRUG  OR  DRUGS  has  been
 consumed by such person; 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 AND/OR AN  EVALUATION  CONDUCTED  BY  A  CERTIFIED  DRUG
 RECOGNITION EXPERT, or any portion thereof, requested in accordance with
 the provisions of paragraph (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 an open container containing an alcoholic beverage AND/OR A  DRUG  OR
 DRUGS  in  or  around  the  vehicle  driven by the operator; THE ODOR OF
 CANNABIS OR BURNT CANNABIS; any other evidence surrounding  the  circum-
 stances of the incident which indicates that the operator has been oper-
 ating  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]
 A. 174                              9
 
 THE MOTOR VEHICLE WAS INVOLVED IN A CRASH; OR PERSONAL INJURY  HAS  BEEN
 CAUSED TO ANOTHER PERSON, DUE TO AN INCIDENT INVOLVING THE MOTOR VEHICLE
 OPERATED  BY  SUCH PERSON AND/OR SUCH PERSON HAS A PREVIOUS ARREST FOR A
 VIOLATION  OF  ANY  SUBDIVISION  OF SECTION ELEVEN HUNDRED NINETY-TWO OF
 THIS ARTICLE; and, based upon the totality of  circumstances,  there  is
 reasonable cause to believe that such person was operating a motor vehi-
 cle 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  accord-
 ance 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 OR HER blood [and] AND/OR
 ORAL/BODILY FLUIDS  AND  ordering  the  withdrawal  of  a  blood  AND/OR
 ORAL/BODILY  FLUID 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 AND/OR ORAL/BODILY FLUID must be administered. The  provisions  of
 paragraphs (a), (b) and (c) of subdivision four of this section shall be
 applicable to any chemical test administered pursuant to this section.
 A. 174                             10
 
   § 5. The subparagraph heading and clauses a and b of subparagraph 7 of
 paragraph  (e) of subdivision 2 of section 1193 of the vehicle and traf-
 fic law, the subparagraph heading as added by chapter 312 of the laws of
 1994, clause a as amended by chapter 732 of the laws of 2006, and clause
 b  as  separately amended by chapters 3 and 571 of the laws of 2002, are
 amended to read as follows:
   Suspension pending prosecution; excessive  blood  alcohol  content  OR
 IMPAIRMENT  BY  A  DRUG OR DRUGS. a. Except as provided in clause a-1 of
 this subparagraph, a court shall suspend  a  driver's  license,  pending
 prosecution,  of any person charged with a violation of subdivision two,
 two-a, three, FOUR or four-a of section  eleven  hundred  ninety-two  of
 this  article  who, at the time of arrest, is alleged to have had .08 of
 one percent or more by weight of alcohol in such driver's  blood  OR  IS
 ALLEGED  TO  HAVE  BEEN  IMPAIRED BY THE INGESTION OF A DRUG OR DRUGS as
 shown  by  chemical  analysis  of  blood,  breath,  urine  or   [saliva]
 ORAL/BODILY  FLUID,  OR  BY  AN EVALUATION CONDUCTED BY A CERTIFIED DRUG
 RECOGNITION EXPERT, OR ANY PORTION THEREOF, made pursuant to subdivision
 two or three of section eleven hundred ninety-four of this  article,  OR
 THE  DRIVER  MAKES A STATEMENT ADMITTING TO DRIVING WHILE INTOXICATED BY
 ALCOHOL OR WHILE IMPAIRED BY A DRUG OR DRUGS.
   b. The suspension occurring under clause a of this subparagraph  shall
 occur  no  later  than at the conclusion of all proceedings required for
 the arraignment and the suspension occurring under clause  a-1  of  this
 subparagraph shall occur immediately after the holder's first appearance
 before  the  court  on the charge which shall, whenever possible, be the
 next regularly scheduled session of the court after the arrest or at the
 conclusion of all proceedings required for  the  arraignment;  provided,
 however,  that  if  the  results  of  any  test administered pursuant to
 section eleven hundred ninety-four of this  article  are  not  available
 within  such time period, the complainant police officer or other public
 servant shall transmit such results to the court at the time they become
 available, and the court shall, as soon  as  practicable  following  the
 receipt  of such results and in compliance with the requirements of this
 subparagraph, suspend such license. In order for  the  court  to  impose
 such  suspension it must find that the accusatory instrument conforms to
 the requirements of section 100.40 of the  criminal  procedure  law  and
 there  exists  reasonable  cause  to  believe either that (a) the holder
 operated a motor vehicle while such holder had .08  of  one  percent  or
 more  by weight of alcohol OR WAS IMPAIRED BY THE INGESTION OF A DRUG OR
 DRUGS in his or her blood as was shown  by  chemical  analysis  of  such
 person's  blood,  breath,  urine or [saliva] ORAL/BODILY FLUID, OR BY AN
 EVALUATION CONDUCTED BY A CERTIFIED  DRUG  RECOGNITION  EXPERT,  OR  ANY
 PORTION  THEREOF,  made  pursuant  to  the  provisions of section eleven
 hundred ninety-four of this article or  THE  DRIVER  MAKES  A  STATEMENT
 ADMITTING TO DRIVING WHILE INTOXICATED BY ALCOHOL OR WHILE IMPAIRED BY A
 DRUG  OR  DRUGS;  OR  (b)  the person was the holder of a class DJ or MJ
 learner's permit or a class DJ or MJ driver's  license  and  operated  a
 motor vehicle while such holder was in violation of subdivision one, two
 and/or  three  of  section eleven hundred ninety-two of this article. At
 the time of such license suspension the holder shall be entitled  to  an
 opportunity  to make a statement regarding these two issues and to pres-
 ent evidence tending to rebut the court's findings.
   § 6. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.