S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8128
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             October 13, 2023
                                ___________
 
 Introduced by M. of A. K. BROWN -- read once and referred to the Commit-
   tee on Transportation
 
 AN  ACT  to amend the vehicle and traffic law and the navigation law, in
   relation to implementing oral fluid tests
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Subdivision  1 of section 1194 of the vehicle and traffic
 law is amended by adding a new paragraph (c) to read as follows:
   (C) ORAL FLUID TEST. (1) DEFINITION. FOR THE PURPOSES OF THIS ARTICLE,
 "ORAL FLUID TEST" MEANS A STANDARDIZED PRELIMINARY SALIVA ANALYSIS  TEST
 VALIDATED  BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION FOR THE
 DETECTION OF CANNABIS. A FIELD SOBRIETY TEST IS CONSIDERED AN ORAL FLUID
 TEST IF IT IS ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE  STANDARDS
 PRESCRIBED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION.
   (2)  ORAL FLUID TEST. 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 AN ORAL FLUID TEST TO BE ADMINISTERED BY THE POLICE OFFI-
 CER.  IF  SUCH  TEST  INDICATES THE PRESENCE OF CANNABIS IN THE PERSON'S
 SALIVA, THE POLICE OFFICER MAY REQUEST SUCH  OPERATOR  TO  SUBMIT  TO  A
 CHEMICAL  TEST  IN  THE  MANNER  SET  FORTH  IN  SUBDIVISION TWO OF THIS
 SECTION.
   § 2. Subparagraph 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, is amended to read as follows:
   (2) within two hours after a breath test, as provided in paragraph (b)
 of  subdivision  one  of  this  section,  AND/OR  AN ORAL FLUID TEST, AS
 PROVIDED IN PARAGRAPH (C) OF SUBDIVISION ONE OF THIS SECTION,  indicates
 that  alcohol  AND/OR  CANNABIS  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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05316-03-3
              

 A. 8128                             2
 
   §  3. Subparagraph 1 of paragraph (b) of subdivision 2 of section 1194
 of the vehicle and traffic law, as amended by chapter 489 of the laws of
 2017 and clause (A) as amended by chapter 27 of the  laws  of  2018,  is
 amended to read as follows:
   (1)  If: (A) such person having been placed under arrest; or (B) after
 a breath test indicates the presence of alcohol in the person's  system;
 or  (C)  AFTER  AN ORAL FLUID TEST INDICATES THE PRESENCE OF CANNABIS IN
 THE PERSON'S SALIVA; OR (D) 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 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,
 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 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 subscription of the deponent shall constitute a
 verification of the report.
   §  4. Subparagraph 2 of paragraph (b) of 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:
   (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, OR
   C. AN ORAL FLUID TEST ADMINISTERED BY A POLICE OFFICER  IN  ACCORDANCE
 WITH  PARAGRAPH  (C)  OF  SUBDIVISION  ONE OF THIS SECTION INDICATES THE
 PRESENCE OF CANNABIS IN THE PERSON'S SALIVA; and
   § 5. The vehicle and traffic law is amended by adding  a  new  section
 1195-a to read as follows:
   §  1195-A. ORAL FLUID TEST EVIDENCE. 1.  ADMISSIBILITY. UPON THE TRIAL
 OF ANY ACTION OR PROCEEDING ARISING OUT OF ACTIONS ALLEGED TO HAVE  BEEN
 COMMITTED  BY  ANY PERSON ARRESTED FOR A VIOLATION OF ANY SUBDIVISION OF
 SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE, THE COURT SHALL ADMIT
 THE RESULTS OF AN ORAL FLUID TEST PURSUANT TO THE PROVISIONS OF  SECTION
 ELEVEN HUNDRED NINETY-FOUR OF THIS ARTICLE.
   2. PROBATIVE VALUE. THE FOLLOWING EFFECT SHALL BE GIVEN TO EVIDENCE OF
 CANNABIS  CONSUMPTION, AS DETERMINED BY SUCH TESTS, OF A PERSON ARRESTED
 FOR A VIOLATION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE:
   (A) TO ASSIST THE COURT OR HEARING OFFICER IN DETERMINING A  CHALLENGE
 TO THE VALIDITY OF AN ARREST. THIS SUBDIVISION DOES NOT LIMIT THE INTRO-
 DUCTION OF OTHER COMPETENT EVIDENCE OFFERED TO ESTABLISH THE VALIDITY OF
 AN ARREST.
 A. 8128                             3
 
   (B)  AS  EVIDENCE  OF  THE  PRESENCE OR NONPRESENCE OF CANNABIS IN THE
 DEFENDANT'S SALIVA IF OFFERED BY THE DEFENDANT TO REBUT TESTIMONY  ELIC-
 ITED  ON  CROSS-EXAMINATION OF A DEFENSE WITNESS THAT AN ORAL FLUID TEST
 OF THE DEFENDANT'S SALIVA SHOWED THE PRESENCE OF CANNABIS THAT  WAS  NOT
 FOUND  TO  BE  PRESENT  WHEN A CHEMICAL TEST OF THE DEFENDANT'S BLOOD OR
 URINE WAS ADMINISTERED UNDER SECTION ELEVEN HUNDRED NINETY-FOUR OF  THIS
 ARTICLE.
   (C)  AS  EVIDENCE  OF  THE  PRESENCE OR NONPRESENCE OF CANNABIS IN THE
 DEFENDANT'S SALIVA IF OFFERED BY  THE  PROSECUTION  TO  REBUT  TESTIMONY
 ELICITED  ON  CROSS-EXAMINATION  OF  A  PROSECUTION WITNESS THAT AN ORAL
 FLUID TEST OF THE DEFENDANT'S SALIVA SHOWED NO PRESENCE OF CANNABIS THAT
 WAS FOUND TO BE PRESENT WHEN A CHEMICAL TEST OF THE DEFENDANT'S BLOOD OR
 URINE WAS ADMINISTERED UNDER SECTION ELEVEN HUNDRED NINETY-FOUR OF  THIS
 ARTICLE.
   3.  SUPPRESSION.  A  DEFENDANT  WHO HAS BEEN COMPELLED TO SUBMIT TO AN
 ORAL FLUID TEST PURSUANT TO THE PROVISIONS OF PARAGRAPH (C) OF  SUBDIVI-
 SION  ONE OF SECTION ELEVEN HUNDRED NINETY-FOUR OF THIS ARTICLE MAY MOVE
 FOR THE SUPPRESSION OF SUCH EVIDENCE IN ACCORDANCE  WITH  ARTICLE  SEVEN
 HUNDRED  TEN OF THE CRIMINAL PROCEDURE LAW ON THE GROUNDS THAT THE ORDER
 WAS OBTAINED AND THE TEST ADMINISTERED IN VIOLATION OF THE PROVISIONS OF
 SUCH SUBDIVISION OR ANY OTHER APPLICABLE LAW.
   § 6. Subdivision 6 of section 49-a of the navigation law is amended by
 adding a new paragraph (c) to read as follows:
   (C) ORAL FLUID TEST. (1) DEFINITION. FOR THE PURPOSES OF THIS ARTICLE,
 "ORAL FLUID TEST" MEANS A STANDARDIZED PRELIMINARY SALIVA ANALYSIS  TEST
 VALIDATED  BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION FOR THE
 DETECTION OF CANNABIS. A FIELD SOBRIETY TEST IS CONSIDERED AN ORAL FLUID
 TEST IF IT IS ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE  STANDARDS
 PRESCRIBED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION.
   (2)  ORAL FLUID TEST. EVERY PERSON OPERATING A VESSEL ON THE WATERS OF
 THE STATE WHICH HAS BEEN INVOLVED IN AN ACCIDENT OR WHICH IS OPERATED IN
 VIOLATION OF ANY OF THE PROVISIONS OF THIS SECTION SHALL, AT THE REQUEST
 OF A POLICE OFFICER, SUBMIT TO AN ORAL FLUID TEST TO BE ADMINISTERED  BY
 THE  POLICE  OFFICER. IF SUCH TEST INDICATES THE PRESENCE OF CANNABIS IN
 THE PERSON'S SALIVA, THE POLICE OFFICER MAY  REQUEST  SUCH  OPERATOR  TO
 SUBMIT  TO  A CHEMICAL TEST IN THE MANNER SET FORTH IN SUBDIVISION SEVEN
 OF THIS SECTION.
   § 7. Paragraph (a) of subdivision 7 of section 49-a of the  navigation
 law,  as  amended by chapter 688 of the laws of 2022, is amended to read
 as follows:
   (a) Any person who operates a vessel on the waters of the state  shall
 be requested to consent to a chemical test of one or more of the follow-
 ing:  breath, blood, urine, or saliva for the purpose of determining the
 alcoholic or drug content of [his] THE  PERSON'S  blood,  provided  that
 such  test  is  administered  at  the direction of a police officer: (1)
 having reasonable cause to believe such person to have been operating in
 violation of this subdivision or paragraph (a), (b), (c),  (d),  (e)  or
 (e-1) of subdivision two of this section and within two hours after such
 person has been placed under arrest for any such violation or (2) within
 two  hours  after a breath test as provided in paragraph (b) of subdivi-
 sion six of this section indicates that alcohol  has  been  consumed  by
 such person OR (3) WITHIN TWO HOURS AFTER AN ORAL FLUID TEST AS PROVIDED
 IN  PARAGRAPH (C) OF SUBDIVISION SIX OF THIS SECTION INDICATES THE PRES-
 ENCE OF CANNABIS IN THE PERSON'S SALIVA and in accordance with the rules
 and regulations established by the police force of which the officer  is
 a member.
 A. 8128                             4
 
   §  8. Subparagraph 2 of paragraph (b) of subdivision 8 of section 49-a
 of the navigation law, as added by chapter 805 of the laws of  1992,  is
 amended to read as follows:
   (2)  (i)  either  such  person operated the vessel in violation of any
 paragraph of subdivision two of this section, or
   (ii) a breath test administered by a police officer in accordance with
 subdivision six of this section indicates that alcohol has been consumed
 by such person, OR
   (III) AN ORAL FLUID TEST ADMINISTERED BY A POLICE OFFICER  IN  ACCORD-
 ANCE  WITH  SUBDIVISION  SIX  OF  THIS SECTION INDICATES THE PRESENCE OF
 CANNABIS IN THE PERSON'S SALIVA; and
   § 9. This act shall take effect on the ninetieth day  after  it  shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal  of  any  rule  or regulation necessary for the implementation of
 this act on its effective date are authorized to be made  and  completed
 on or before such effective date.