§ 1194-a. Driving after having consumed alcohol; under twenty-one;
procedure. 1. Chemical test report and hearing. (a) Whenever a chemical
test of the breath, blood, urine or saliva of an operator who is under
the age of twenty-one indicates that such person has operated a motor
vehicle in violation of section eleven hundred ninety-two-a of this
article, and such person is not charged with violating any subdivision
of section eleven hundred ninety-two arising out of the same incident,
the police officer who administered the test shall forward a report of
the results of such test to the department within twenty-four hours of
the time when such results are available in a manner prescribed by the
commissioner, and the operator shall be given a hearing notice as
provided in subdivision one-a of this section, to appear before a
hearing officer in the county where the chemical test was administered,
or in an adjoining county under such circumstances as prescribed by the
commissioner, on a date to be established in accordance with a schedule
promulgated by the commissioner. Such hearing shall occur within thirty
days of, but not less than forty-eight hours from, the date that the
chemical test was administered, provided, however, where the
commissioner determines, based upon the availability of hearing officers
and the anticipated volume of hearings at a particular location, that
the scheduling of such hearing within thirty days would impair the
timely scheduling or conducting of other hearings pursuant to this
chapter, such hearing shall be scheduled at the next hearing date for
such particular location. When providing the operator with such hearing
notice, the police officer shall also give to the operator, and shall,
prior to the commencement of the hearing, provide to the department,
copies of the following reports, documents and materials: any written
report or document, or portion thereof, concerning a physical
examination, a scientific test or experiment, including the most recent
record of inspection, or calibration or repair of machines or
instruments utilized to perform such scientific tests or experiments and
the certification certificate, if any, held by the operator of the
machine or instrument, which tests or examinations were made by or at
the request or direction of a public servant engaged in law enforcement
activity. The report of the police officer shall 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
verification of the report.

(b) Every person under the age of twenty-one who is alleged to have
operated a motor vehicle after having consumed alcohol as set forth in
section eleven hundred ninety-two-a of this article, and who is not
charged with violating any subdivision of section eleven hundred
ninety-two of this article arising out of the same incident, is entitled
to a hearing before a hearing officer in accordance with the provisions
of this section. Unless otherwise provided by law, the license or permit
to drive or any non-resident operating privilege of such person shall
not be suspended or revoked prior to the scheduled date for such
hearing.

(i) The hearing shall be limited to the following issues: (1) did
such person operate the motor vehicle; (2) was a valid request to submit
to a chemical test made by the police officer in accordance with the
provisions of section eleven hundred ninety-four of this article; (3)
was such person less than twenty-one years of age at the time of
operation of the motor vehicle; (4) was the chemical test properly
administered in accordance with the provisions of section eleven hundred
ninety-four of this article; (5) did the test find that such person had
driven after having consumed alcohol as defined in section eleven
hundred ninety-two-a of this article; and (6) did the police officer
make a lawful stop of such person. The burden of proof shall be on the
police officer to prove each of these issues by clear and convincing
evidence.

(ii) Every person who is entitled to a hearing pursuant to this
subdivision has the right to be present at the hearing; the right to be
represented by attorney, or in the hearing officer's discretion, by any
other person the operator chooses; the right to receive and review
discovery materials as provided in this subdivision; the right not to
testify; the right to present evidence and witnesses in his own behalf,
the right to cross examine adverse witnesses, and the right to appeal
from an adverse determination in accordance with article three-A of this
chapter. Any person representing the operator must conform to the
standards of conduct required of attorneys appearing before state
courts, and failure to conform to these standards will be grounds for
declining to permit his continued appearance in the hearing.

(iii) Hearings conducted pursuant to this subdivision shall be in
accordance with this subdivision and with the provisions applicable to
the adjudication of traffic infractions pursuant to the following
provisions of part 124 of title fifteen of the codes, rules and
regulations of the state of New York: paragraph (b) of section 124.1
regarding the opening statement; paragraph (b) of section 124.2
regarding the right to representation and to remain silent and
paragraphs (a) through (e) of section 124.4 regarding the conduct of the
hearing, procedure and recusal; provided, however, that nothing
contained in this subparagraph shall be deemed to preclude a hearing
officer from changing the order of a hearing conducted pursuant to this
subdivision as justice may require and for good cause shown.

(iv) The rules governing receipt of evidence in a court of law shall
not apply in a hearing conducted pursuant to this subdivision except as
follows:

(1) on the merits of the charge, and whether or not a party objects,
the hearing officer shall exclude from consideration the following: a
privileged communication; evidence which, for constitutional reasons,
would not be admissible in a court of law; evidence of prior misconduct,
incompetency or illness, except where such evidence would be admissible
in a court of law; evidence which is irrelevant or immaterial;

(2) no negative inference shall be drawn from the operator's
exercising the right not to testify.

(v) If, after such hearing, the hearing officer, acting on behalf of
the commissioner, finds all of the issues set forth in this subdivision
in the affirmative, the hearing officer shall suspend or revoke the
license or permit to drive or non-resident operating privilege of such
person in accordance with the time periods set forth in subdivision two
of section eleven hundred ninety-three of this article. If, after such
hearing, the hearing officer, acting on behalf of the commissioner,
finds any of said issues in the negative, the hearing officer must find
that the operator did not drive after having consumed alcohol.

(vi) A person who has had a license or permit to drive or non-resident
operating privilege suspended or revoked pursuant to the provisions of
this section may appeal the finding of the hearing officer in accordance
with the provisions of article three-A of this chapter.

(c) Unless an adjournment of the hearing date has been granted, upon
the operator's failure to appear for a scheduled hearing, the
commissioner shall suspend the license or permit to drive or
non-resident operating privilege until the operator petitions the
commissioner and a rescheduled hearing is conducted, provided, however,
the commissioner shall restore such person's license or permit to drive
or non-resident operating privilege if such rescheduled hearing is
adjourned at the request of a person other than the operator. Requests
for adjournments shall be made and determined in accordance with
regulations promulgated by the commissioner. If such a request by the
operator for an adjournment is granted, the commissioner shall notify
the operator of the rescheduled hearing, which shall be scheduled for
the next hearing date. If a second or subsequent request by the operator
for an adjournment is granted, the operator's license or permit to drive
or non-resident operating privilege may be suspended pending the hearing
at the time such adjournment is granted; provided, however, that the
records of the department or the evidence already admitted furnishes
reasonable grounds to believe such suspension is necessary to prevent
continuing violations or a substantial traffic safety hazard; and
provided further, that such hearing shall be scheduled for the next
hearing date.

If a police officer does not appear for a hearing, the hearing officer
shall have the authority to dismiss the charge. Any person may waive the
right to a hearing under this subdivision, in a form and manner
prescribed by the commissioner, and may enter an admission of guilt, in
person or by mail, to the charge of operating a motor vehicle in
violation of section eleven hundred ninety-two-a of this article. Such
admission of guilt shall have the same force and effect as a finding of
guilt entered following a hearing conducted pursuant to this
subdivision.

1-a. Hearing notice. The hearing notice issued to an operator pursuant
to subdivision one of this section shall be in a form as prescribed by
the commissioner. In addition to containing information concerning the
time, date and location of the hearing, and such other information as
the commissioner deems appropriate, such hearing notice shall also
contain the following information: the date, time and place of the
offense charged; the procedures for requesting an adjournment of a
scheduled hearing as provided in this section, the operator's right to a
hearing conducted pursuant to this section and the right to waive such
hearing and plead guilty, either in person or by mail, to the offense
charged.

2. Civil penalty. Unless otherwise provided, any person whose license,
permit to drive, or any non-resident operating privilege is suspended or
revoked pursuant to the provisions of this section shall also be liable
for a civil penalty in the amount of one hundred twenty-five dollars,
which shall be distributed in accordance with the provisions of
subdivision nine of section eighteen hundred three of this chapter.

3. Refusal report and hearing. (a) Any person under the age of
twenty-one who is suspected of operating a motor vehicle after having
consumed alcohol in violation of section eleven hundred ninety-two-a of
this chapter, and who is not charged with violating any subdivision of
section eleven hundred ninety-two of this article arising out of the
same incident, and who has been requested to submit to a chemical test
pursuant to paragraph (a) of subdivision two of section eleven hundred
ninety-four of this article and after having been informed that his
license or permit to drive and any non-resident operating privilege
shall be revoked for refusal to submit to such chemical test or any
portion thereof, whether or not there is a finding of driving after
having consumed alcohol, and such person refuses to submit to such
chemical test or any portion thereof, shall be entitled to a hearing in
accordance with a schedule promulgated by the commissioner, and such
hearing shall occur within thirty days of, but not less than forty-eight
hours from, the date of such refusal, provided, however, where the
commissioner determines, based upon the availability of hearing officers
and the anticipated volume of hearings at a particular location, that
the scheduling of such hearing within thirty days would impair the
timely scheduling or conducting of other hearings pursuant to this
chapter, such hearing shall be scheduled at the next hearing date for
such particular location.

(b) Unless an adjournment of the hearing date has been granted, upon
the operator's failure to appear for a scheduled hearing, the
commissioner shall suspend the license or permit to drive or
non-resident operating privilege until the operator petitions the
commissioner and a rescheduled hearing is conducted, provided, however,
the commissioner shall restore such person's license or permit to drive
or non-resident operating privilege if such rescheduled hearing is
adjourned at the request of a person other than the operator. Requests
for adjournments shall be made and determined in accordance with
regulations promulgated by the commissioner. If such a request by the
operator for an adjournment is granted, the commissioner shall notify
the operator of the rescheduled hearing, which shall be scheduled for
the next hearing date. If a second or subsequent request by the operator
for an adjournment is granted, the operator's license or permit to drive
or non-resident operating privilege may be suspended pending the hearing
at the time such adjournment is granted; provided, however, that the
records of the department or the evidence already admitted furnishes
reasonable grounds to believe such suspension is necessary to prevent
continuing violations or a substantial traffic safety hazard; and
provided further, that such hearing shall be scheduled for the next
hearing date.

If a police officer does not appear for a hearing, the hearing officer
shall have the authority to dismiss the charge. Any person may waive the
right to a hearing under this subdivision.

(c) The hearing on the refusal to submit to a chemical test pursuant
to this subdivision shall be limited to the following issues: (1) was a
valid request to submit to a chemical test made by the police officer in
accordance with the provisions of section eleven hundred ninety-four of
this article; (2) was such person given sufficient warning, in clear or
unequivocal language, prior to such refusal that such refusal to submit
to such chemical test or any portion thereof, would result in the
revocation of such person's license or permit to drive or nonresident
operating privilege, whether or not such person is found to have
operated a motor vehicle after having consumed alcohol; (3) did such
person refuse to submit to such chemical test or any portion thereof;
(4) did such person operate the motor vehicle; (5) was such person less
than twenty-one years of age at the time of operation of the motor
vehicle; (6) did the police officer make a lawful stop of such person.
If, after such hearing, the hearing officer, acting on behalf of the
commissioner, finds on any one said issue in the negative, the hearing
officer shall not revoke the operator's license or permit to drive or
non-resident operating privilege and shall immediately terminate any
outstanding suspension of the operator's license, permit to drive or
non-resident operating privilege 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 hearing 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 subdivision two of section eleven hundred ninety-four of this
article. A person who has had a license or permit to drive or
non-resident operating privilege suspended or revoked pursuant to the
provisions of this section may appeal the findings of the hearing
officer in accordance with the provisions of article three-A of this
chapter.