S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3135
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 27, 2023
                                ___________
 
 Introduced  by Sens. MANNION, ADDABBO, TEDISCO, THOMAS -- 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 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00346-01-3
              

 S. 3135                             2
 
 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
 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
 S. 3135                             3
 
 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
 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
 S. 3135                             4
 
 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] 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
 S. 3135                             5
 
 to such refusal that such 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, 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
 S. 3135                             6
 
 has  a  prior  finding,  conviction  or  youthful  offender adjudication
 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
 S. 3135                             7

 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
 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
 S. 3135                             8
 
 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] 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
 S. 3135                             9

 person, other than the operator, has been killed or  seriously  injured]
 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
 S. 3135                            10
 
 paragraphs (a), (b) and (c) of subdivision four of this section shall be
 applicable to any chemical test administered pursuant to this section.
   § 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.