NY State Senate Bill 2023-S3127

Current Bill Status - In Senate Committee Transportation Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to transportation
Jan 27, 2023	referred to transportation

2023-S3127 (ACTIVE) - Details

Current Committee:: Senate Transportation
Law Section:: Vehicle and Traffic Law
Laws Affected:: Amd §1194, add §1195-a, V & T L; amd §49-a, Nav L
Versions Introduced in 2021-2022 Legislative Session:: S9224

2023-S3127 (ACTIVE) - Summary

Implements oral fluid tests which tests a person's saliva for the presence of cannabis.

2023-S3127 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S3127

SPONSOR: MANNION
 
TITLE OF BILL:

An act to amend the vehicle and traffic law and the navigation law, in
relation to implementing oral fluid tests

 
PURPOSE:

The purpose of this bill is to require the implementation and use of
cannabis field sobriety oral fluids tests.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of this bill would amend subdivision 1 of section 1194 of the
Vehicle and Traffic Law by adding a new paragraph.

Section 2 of this bill would amend subparagraph 2 of paragraph (a) of
subdivision 2 of section 1194 of the Vehicle and Traffic Law.

Section 3 of this bill would amend subparagraph 1 of paragraph (b) of

subdivision 2 of section 1194 of the Vehicle and Traffic Law.

Section 4 of this bill would amend subparagraph 2 of paragraph (b) of
subdivision of section 1194 of the Vehicle and Traffic Law.

Section 5 of this bill would amend the Vehicle and Traffic Law by adding
a new section 1195-a.

Section 6 of this bill would amend subdivision 6 of section 49-a of the
Navigation Law by adding a new paragraph (c).

Section 7 of this bill would amend paragraphs (a) and (b) of subdivision
7 of section 49-a of the Navigation Law.

Section 8 of this bill would amend subparagraph 2 of paragraph (b) of
subdivision 8 of section 49-a of the Navigation Law.

Section 9 of this bill provides that the effective date This act shall
take effect on the ninetieth day after it shall have become a law;
provided, however, that section eight of this act shall take effect on
the same date and in the same manner as section 3 of chapter 688 of the
laws of 2022, takes effect.

 
JUSTIFICATION:

The rising number of roadway fatalities was described by U.S.  Transpor-
tation Secretary Pete Buttigieg as a national crisis on March 2, 2022.
The National Highway Traffic Safety Administration (NHTSA) reported in
June of 2021 that nationally 56% of drivers involved in serious injury
and fatal crashes tested positive for at least one drug. In New York 40%
of fatal and injury crashes in 2020 were drug-related. With the legali-
zation of adult use cannabis and the continued problems associated with
"synthetic drugs", New York's laws regarding driving under the influence
of drugs need to be updated to ensure public safety on the roads. New
York is only one of a handful of states that requires a drug to be list-
ed in statute to trigger a drugged driving violation. The list does not
keep pace with the proliferation of rapidly changing synthetic drugs.
The result is impaired drivers are allowed to endanger themselves and
others with impunity.

This legislation also updates New York law regarding field testing for
drugged driving to include the use of oral/bodily fluids. This testing
screens for the recent use of multiple types of drugs.  Scientifically
establishing recency will assist law enforcement to properly identify
actually impaired drivers. Oral fluid testing has been the subject of
dozens of studies and pilot programs over more than a decade. NHTSA
published an evaluation of On-Site Oral Fluid Drug Screening Technology
in April 2021 and identified methods that meet established accuracy and
sensitivity standards. Non-invasive oral fluid testing will reduce the
number of dangerously impaired drivers on New York's roadways. Vehicle
and Traffic Law section 1194(1)(b) requires drivers to submit to a field
test at the request of a police officer. Section 1800(a) makes it a
traffic infraction to violate any of the provisions of the Vehicle and
Traffic Law. Recent court decisions have invalidated charging a traffic
infraction for refusing to submit to a field test. There is no longer a
consequence for violating this mandatory public safety provision. This
bill provides that refusing to submit to a field test is a traffic
infraction.

Drug recognition evaluations were developed fifty years ago and vali-
dated in the 1980s. Certified Drug Recognition Experts (DREs) determine
whether a driver's impairment is due to drug use rather than neurologi-
cal conditions, illness, or disease. A DRE evaluation helps to insure
that drivers who are actually impaired by cannabis and drugs are charged
as New York State law requires. The mere presence of a drug in a driv-
er's system is not sufficient: A driver who refuses to submit to a drug
recognition evaluation, a chemical test (or a field test) hampers the
investigation that will either support an arrest or exonerate the driv-
er. This bill provides the same license revocation for refusing a DRE
exam that already exists for refusing a chemical test.

It is well-settled that states have a paramount interest in preserving
public highway safety. Administrative license sanctions encouraging
testing are commonplace and appropriate tools in New York's efforts to
prevent impaired driving and save lives. This legislation corrects
disparate court decisions that provide different standards for consent-
ing to a chemical test and refusing. The public safety policy of encour-
aging testing is not served by a time limit for refusals. A refusal at
any time after arrest will result in a license revocation and shall be
admissible in any trial, proceeding or hearing.

Additionally, the bill expands the circumstances where a court can order
a compulsory chemical test in a suspected drunk or drugged driving
crash. Currently, it can only be done in crashes where there is death or
serious physical injury. The new statute includes language from the
Leaving the Scene of an Incident statute and expands compulsory tests
supported by probable cause to any crash with personal injury and/or
where the driver has a history of convictions for impaired driving
offenses.

Finally, it updates the law regarding suspension of licenses pending
prosecution by adding drugged drivers with charges supported by testing
or admissions. The provision reflects the bill's updates to the defi-
nitions of driving while under the influence of drugs. This is done to
keep dangerous drivers off the road pending prosecution.
 
LEGISLATIVE HISTORY:

2021-22: S.9224 (Mannion) - Referred to Transportation.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
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.

2023-S3127 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3127
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 27, 2023
                                ___________
 
 Introduced  by  Sen. MANNION -- 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 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.
                                                            LBD05316-01-3

 S. 3127                             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.
 S. 3127                             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. Paragraphs (a) and (b) of subdivision 7 of section  49-a  of  the
 navigation law, as added by chapter 805 of the laws of 1992, are 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  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) or (e) 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  subdivision  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 PRESENCE 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.
 S. 3127                             4
 
   (b) If such person having been placed under arrest or after  a  breath
 test  indicates  the presence of alcohol in the person's system OR AFTER
 AN ORAL FLUID TEST INDICATES THE PRESENCE OF CANNABIS  IN  THE  PERSON'S
 SALIVA  and  having thereafter been requested to submit to such chemical
 test  and  having been informed that the person's privilege to operate a
 vessel shall be immediately suspended 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, refuses to
 submit to such chemical test or any  portion  thereof,  unless  a  court
 order  has  been  granted pursuant to subdivision eight 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.  The  report  of
 the  police  officer  shall set forth reasonable grounds to believe such
 arrested person to have been operating a  vessel  in  violation  of  any
 paragraph  of  subdivision  two  of  this  section, that said person had
 refused to submit to such chemical test, and that no chemical  test  was
 administered  pursuant  to the requirements of subdivision eight of this
 section. The report shall be presented to the court upon the arraignment
 of the arrested person. The privilege to operate a  vessel  shall,  upon
 the  basis of such written report, be temporarily suspended by the court
 without notice pending the determination of a hearing as provided  here-
 in.  Copies  of  such  report  must  be  transmitted by the court to the
 commissioner of parks, recreation  and  historic  preservation  and  the
 commissioner  of  motor  vehicles and such transmittal may not be waived
 even with the consent of all the parties. Such report shall be forwarded
 to each commissioner within forty-eight hours of such  arraignment.  The
 court  shall  provide such person with a hearing date schedule, a waiver
 form, and such other information as may be required by the  commissioner
 of  motor  vehicles.  If  a hearing, as provided for in paragraph (c) of
 this subdivision, is waived by such person, the  commissioner  of  motor
 vehicles shall immediately suspend the privilege to operate a vessel, as
 of  the date of receipt of such waiver in accordance with the provisions
 of paragraph (d) of this subdivision.
   § 8. 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
 S. 3127                             5
 
 and regulations established by the police force of which the officer  is
 a member.
   §  9. 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
   § 10. This act shall take effect on the ninetieth day after  it  shall
 have  become  a  law;  provided, however, that section eight of this act
 shall take effect on the same date and in the same manner as  section  3
 of  chapter 688 of the laws of 2022, takes effect.  Effective immediate-
 ly, 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.

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Senate Bill S3127

Sponsored By

Current Bill Status - In Senate Committee Transportation Committee

2023-S3127 (ACTIVE) - Details

2023-S3127 (ACTIVE) - Summary

2023-S3127 (ACTIVE) - Sponsor Memo

2023-S3127 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S3127

Share this bill

Sponsored By

John W. Mannion

Current Bill Status - In Senate Committee Transportation Committee

2023-S3127 (ACTIVE) - Details

2023-S3127 (ACTIVE) - Summary

2023-S3127 (ACTIVE) - Sponsor Memo

2023-S3127 (ACTIVE) - Bill Text download pdf

Comments