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ARTICLE 31
ALCOHOL AND DRUG-RELATED OFFENSES
AND PROCEDURES APPLICABLE THERETO
Section 1192. Operating a motor vehicle while under the influence of
alcohol or drugs.
1192-a. Operating a motor vehicle after having consumed
alcohol; under the age of twenty-one; per se.
1193. Sanctions.
1194. Arrest and testing.
1194-a. Driving after having consumed alcohol; under
twenty-one; procedure.
1195. Chemical test evidence.
1196. Alcohol and drug rehabilitation program.
1197. Special traffic options program for driving while
intoxicated.
1198. Ignition interlock device program.
1199. Driver responsibility assessment.
S 1192. Operating a motor vehicle while under the influence of alcohol
or drugs. 1. Driving while ability impaired. No person shall operate a
motor vehicle while the person`s ability to operate such motor vehicle
is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor
vehicle while such person has .08 of one per centum or more by weight of
alcohol in the person`s blood as shown by chemical analysis of such
person`s blood, breath, urine or saliva, made pursuant to the provisions
of section eleven hundred ninety-four of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle
while in an intoxicated condition.
4. Driving while ability impaired by drugs. No person shall operate a
motor vehicle while the person`s ability to operate such a motor vehicle
is impaired by the use of a drug as defined in this chapter.
5. Commercial motor vehicles: per se - level I. Notwithstanding the
provisions of section eleven hundred ninety-five of this article, no
person shall operate a commercial motor vehicle while such person has
.04 of one per centum or more but not more than .06 of one per centum by
weight of alcohol in the person`s blood as shown by chemical analysis of
such person`s blood, breath, urine or saliva, made pursuant to the
provisions of section eleven hundred ninety-four of this article;
provided, however, nothing contained in this subdivision shall prohibit
the imposition of a charge of a violation of subdivision one of this
section, or of section eleven hundred ninety-two-a of this article where
a person under the age of twenty-one operates a commercial motor vehicle
where a chemical analysis of such person`s blood, breath, urine, or
saliva, made pursuant to the provisions of section eleven hundred
ninety-four of this article, indicates that such operator has .02 of one
per centum or more but less than .04 of one per centum by weight of
alcohol in such operator`s blood.
6. Commercial motor vehicles; per se - level II. Notwithstanding the
provisions of section eleven hundred ninety-five of this article, no
person shall operate a commercial motor vehicle while such person has
more than .06 of one per centum but less than .08 of one per centum by
weight of alcohol in the person`s blood as shown by chemical analysis of
such person`s blood, breath, urine or saliva, made pursuant to the
provisions of section eleven hundred ninety-four of this article;
provided, however, nothing contained in this subdivision shall prohibit
the imposition of a charge of a violation of subdivision one of this
section.
7. Where applicable. The provisions of this section shall apply upon
public highways, private roads open to motor vehicle traffic and any
other parking lot. For the purposes of this section "parking lot" shall
mean any area or areas of private property, including a driveway, near
or contiguous to and provided in connection with premises and used as a
means of access to and egress from a public highway to such premises and
having a capacity for the parking of four or more motor vehicles. The
provisions of this section shall not apply to any area or areas of
private property comprising all or part of property on which is situated
a one or two family residence.
8. Effect of prior out-of-state conviction. A prior out-of-state
conviction for operating a motor vehicle while under the influence of
alcohol or drugs shall be deemed to be a prior conviction of a violation
of subdivision one of this section for purposes of determining penalties
imposed under this section or for purposes of any administrative action
required to be taken pursuant to subdivision two of section eleven
hundred ninety-three of this article; provided, however, that such
conduct, had it occurred in this state, would have constituted a
violation of any of the provisions of this section. This subdivision
shall only apply to convictions occurring on or after November
twenty-ninth, nineteen hundred eighty-five.
8-a. Effect of prior finding of having consumed alcohol. A prior
finding that a person under the age of twenty-one has operated a motor
vehicle after having consumed alcohol pursuant to section eleven hundred
ninety-four-a of this article shall have the same effect as a prior
conviction of a violation of subdivision one of this section solely for
the purpose of determining the length of any license suspension or
revocation required to be imposed under any provision of this article,
provided that the subsequent offense is committed prior to the
expiration of the retention period for such prior offense or offenses
set forth in paragraph (k) of subdivision one of section two hundred one
of this chapter.
9. Conviction of a different charge. A driver may be convicted of a
violation of subdivision one, two or three of this section,
notwithstanding that the charge laid before the court alleged a
violation of subdivision two or three of this section, and regardless of
whether or not such conviction is based on a plea of guilty.
10. Plea bargain limitations. (a) In any case wherein the charge laid
before the court alleges a violation of subdivision two, three or four
of this section, any plea of guilty thereafter entered in satisfaction
of such charge must include at least a plea of guilty to the violation
of the provisions of one of the subdivisions of this section, other than
subdivision five or six, and no other disposition by plea of guilty to
any other charge in satisfaction of such charge shall be authorized;
provided, however, if the district attorney, upon reviewing the
available evidence, determines that the charge of a violation of this
section is not warranted, such district attorney may consent, and the
court may allow a disposition by plea of guilty to another charge in
satisfaction of such charge; provided, however, in all such cases, the
court shall set forth upon the record the basis for such disposition. In
any case wherein the charge laid before the court alleges a violation of
subdivision one of this section and the operator was under the age of
twenty-one at the time of such violation, any plea of guilty thereafter
entered in satisfaction of such charge must include at least a plea of
guilty to the violation of such subdivision; provided, however, such
charge may instead be satisfied as provided in paragraph (c) of this
subdivision, and, provided further that, if the district attorney, upon
reviewing the available evidence, determines that the charge of a
violation of subdivision one of this section is not warranted, such
district attorney may consent, and the court may allow a disposition by
plea of guilty to another charge in satisfaction of such charge;
provided, however, in all such cases, the court shall set forth upon the
record the basis for such disposition.
(b) In any case wherein the charge laid before the court alleges a
violation of subdivision one or six of this section while operating a
commercial motor vehicle, any plea of guilty thereafter entered in
satisfaction of such charge must include at least a plea of guilty to
the violation of the provisions of one of the subdivisions of this
section and no other disposition by plea of guilty to any other charge
in satisfaction of such charge shall be authorized; provided, however,
if the district attorney upon reviewing the available evidence
determines that the charge of a violation of this section is not
warranted, he may consent, and the court may allow, a disposition by
plea of guilty to another charge is satisfaction of such charge.
(c) Except as provided in paragraph (b) of this subdivision, in any
case wherein the charge laid before the court alleges a violation of
subdivision one of this section by a person who was under the age of
twenty-one at the time of commission of the offense, the court, with the
consent of both parties, may allow the satisfaction of such charge by
the defendant`s agreement to be subject to action by the commissioner
pursuant to section eleven hundred ninety-four-a of this article. In any
such case, the defendant shall waive the right to a hearing under
section eleven hundred ninety-four-a of this article and such waiver
shall have the same force and effect as a finding of a violation of
section eleven hundred ninety-two-a of this article entered after a
hearing conducted pursuant to such section eleven hundred ninety-four-a.
The defendant shall execute such waiver in open court, and, if
represented by counsel, in the presence of his attorney, on a form to be
provided by the commissioner, which shall be forwarded by the court to
the commissioner within ninety-six hours. To be valid, such form shall,
at a minimum, contain clear and conspicuous language advising the
defendant that a duly executed waiver: (i) has the same force and effect
as a guilty finding following a hearing pursuant to section eleven
hundred ninety-four-a of this article; (ii) shall subject the defendant
to the imposition of sanctions pursuant to such section eleven hundred
ninety-four-a; and (iii) may subject the defendant to increased
sanctions upon a subsequent violation of this section or section eleven
hundred ninety-two-a of this article. Upon receipt of a duly executed
waiver pursuant to this paragraph, the commissioner shall take such
administrative action and impose such sanctions as may be required by
section eleven hundred ninety-four-a of this article.
11. No person other than an operator of a commercial motor vehicle may
be charged with or convicted of a violation of subdivision five or six
of this section.
12. Driving while intoxicated or while ability impaired by
drugs--serious physical injury or death. In every case where a person is
charged with a violation of subdivision two, three or four of this
section, the law enforcement officer alleging such charge shall make a
clear notation in the "Description of Violation" section of a simplified
traffic information if, arising out of the same incident, someone other
than the person charged was killed or suffered serious physical injury
as defined in section 10.00 of the penal law; such notation shall be in
the form of a "D" if someone other than the person charged was killed
and such notation shall be in the form of a "S.P.I." if someone other
than the person charged suffered serious physical injury; provided,
however, that the failure to make such notation shall in no way affect a
charge for a violation of subdivision two, three or four of this
section.
S 1192-a. Operating a motor vehicle after having consumed alcohol;
under the age of twenty-one; per se. No person under the age of
twenty-one shall operate a motor vehicle after having consumed alcohol
as defined in this section. For purposes of this section, a person under
the age of twenty-one is deemed to have consumed alcohol only if such
person has .02 of one per centum or more but not more than .07 of one
per centum by weight of alcohol in the person`s blood, as shown by
chemical analysis of such person`s blood, breath, urine or saliva, made
pursuant to the provisions of section eleven hundred ninety-four of this
article. Any person who operates a motor vehicle in violation of this
section, and who is not charged with a violation of any subdivision of
section eleven hundred ninety-two of this article arising out of the
same incident shall be referred to the department for action in
accordance with the provisions of section eleven hundred ninety-four-a
of this article. Except as otherwise provided in subdivision five of
section eleven hundred ninety-two of this article, this section shall
not apply to a person who operates a commercial motor vehicle.
Notwithstanding any provision of law to the contrary, a finding that a
person under the age of twenty-one operated a motor vehicle after having
consumed alcohol in violation of this section is not a judgment of
conviction for a crime or any other offense.
S 1193. Sanctions. 1. Criminal penalties. (a) Driving while ability
impaired. A violation of subdivision one of section eleven hundred
ninety-two of this article shall be a traffic infraction and shall be
punishable by a fine of not less than three hundred dollars nor more
than five hundred dollars or by imprisonment in a penitentiary or county
jail for not more than fifteen days, or by both such fine and
imprisonment. A person who operates a vehicle in violation of such
subdivision after having been convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article within
the preceding five years shall be punished by a fine of not less than
five hundred dollars nor more than seven hundred fifty dollars, or by
imprisonment of not more than thirty days in a penitentiary or county
jail or by both such fine and imprisonment. A person who operates a
vehicle in violation of such subdivision after having been convicted two
or more times of a violation of any subdivision of section eleven
hundred ninety-two of this article within the preceding ten years shall
be guilty of a misdemeanor, and shall be punished by a fine of not less
than seven hundred fifty dollars nor more than fifteen hundred dollars,
or by imprisonment of not more than one hundred eighty days in a
penitentiary or county jail or by both such fine and imprisonment.
(b) Driving while intoxicated or while ability impaired by drugs;
misdemeanor offenses. A violation of subdivision two, three or four of
section eleven hundred ninety-two of this article shall be a misdemeanor
and shall be punishable by a fine of not less than five hundred dollars
nor more than one thousand dollars, or by imprisonment in a penitentiary
or county jail for not more than one year, or by both such fine and
imprisonment.
(c) Felony offenses. (i) A person who operates a vehicle in violation
of subdivision two, three or four of section eleven hundred ninety-two
of this article after having been convicted of a violation of
subdivision two, three or four of such section or of vehicular assault
in the second or first degree, as defined, respectively, in sections
120.03 and 120.04 of the penal law or of vehicular manslaughter in the
second or first degree, as defined, respectively, in sections 125.12 and
125.13 of such law, within the preceding ten years, shall be guilty of a
class E felony, and shall be punished by a fine of not less than one
thousand dollars nor more than five thousand dollars or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment.
(ii) A person who operates a vehicle in violation of subdivision two,
three or four of section eleven hundred ninety-two of this article after
having been convicted of a violation of subdivision two, three or four
of such section or of vehicular assault in the second or first degree,
as defined, respectively, in sections 120.03 and 120.04 of the penal law
or of vehicular manslaughter in the second or first degree, as defined,
respectively, in sections 125.12 and 125.13 of such law, twice within
the preceding ten years, shall be guilty of a class D felony, and shall
be punished by a fine of not less than two thousand dollars nor more
than ten thousand dollars or by a period of imprisonment as provided in
the penal law, or by both such fine and imprisonment.
(d) Alcohol or drug related offenses; special vehicles. (1) Except as
provided in subparagraph four of this paragraph, a violation of
subdivision one, two, three or four of section eleven hundred ninety-two
of this article wherein the violator is operating a taxicab as defined
in section one hundred forty-eight-a of this chapter, or livery as
defined in section one hundred twenty-one-e of this chapter, and such
taxicab or livery is carrying a passenger for compensation, or a truck
with a GVWR of more than eighteen thousand pounds but not more than
twenty-six thousand pounds and which is not a commercial motor vehicle
shall be a misdemeanor punishable by a fine of not less than five
hundred dollars nor more than fifteen hundred dollars or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment.
(1-a) A violation of subdivision one of section eleven hundred
ninety-two of this article wherein the violator is operating a school
bus as defined in section one hundred forty-two of this chapter and such
school bus is carrying at least one student passenger shall be a
misdemeanor punishable by a fine of not less than five hundred dollars
nor more than fifteen hundred dollars or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment.
(2) A violation of subdivision five of section eleven hundred
ninety-two of this article shall be a traffic infraction punishable as
provided in paragraph (a) of this subdivision. Except as provided in
subparagraph three or five of this paragraph, a violation of subdivision
one, two, three, four or six of section eleven hundred ninety-two of
this article wherein the violator is operating a commercial motor
vehicle, or any motor vehicle registered or registrable under schedule F
of subdivision seven of section four hundred one of this chapter shall
be a misdemeanor. A violation of subdivision one, two, three or four of
section eleven hundred ninety-two of this article shall be punishable by
a fine of not less than five hundred dollars nor more than fifteen
hundred dollars or by a period of imprisonment as provided in the penal
law, or by both such fine and imprisonment. A violation of subdivision
six of section eleven hundred ninety-two of this article shall be
punishable by a fine of not less than five hundred dollars nor more than
fifteen hundred dollars or by a period of imprisonment not to exceed one
hundred eighty days, or by both such fine and imprisonment. A person who
operates any such vehicle in violation of such subdivision six after
having been convicted of a violation of subdivision one, two, three,
four or six of section eleven hundred ninety-two of this article within
the preceding five years shall be punishable by a fine of not less than
five hundred dollars nor more than fifteen hundred dollars or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment.
(3) A violation of subdivision one of section eleven hundred
ninety-two of this article wherein the violator is operating a motor
vehicle with a gross vehicle weight rating of more than eighteen
thousand pounds which contains flammable gas, radioactive materials or
explosives shall be a misdemeanor punishable by a fine of not less than
five hundred dollars nor more than fifteen hundred dollars or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment.
(4) (i) A person who operates a vehicle in violation of subdivision
one, two, three or four of section eleven hundred ninety-two of this
article and which is punishable as provided in subparagraph one, one-a,
two or three of this paragraph after having been convicted of a
violation of any such subdivision of section eleven hundred ninety-two
of this article and penalized under subparagraph one, one-a, two or
three of this paragraph within the preceding ten years, shall be guilty
of a class E felony, which shall be punishable by a fine of not less
than one thousand dollars nor more than five thousand dollars, or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment. A person who operates a vehicle in violation of
subdivision six of section eleven hundred ninety-two of this article
after having been convicted of two or more violations of subdivisions
one, two, three, four or six of section eleven hundred ninety-two of
this article within the preceding five years, any one of which was a
misdemeanor, shall be guilty of a class E felony, which shall be
punishable by a fine of not less than one thousand dollars nor more than
five thousand dollars, or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment. In addition, any
person sentenced pursuant to this subparagraph shall be subject to the
disqualification provided in subparagraph three of paragraph (e) of
subdivision two of this section.
(ii) A person who operates a vehicle in violation of subdivision one,
two, three or four of section eleven hundred ninety-two of this article
and which is punishable as provided in subparagraph one, one-a, two or
three of this paragraph after having been convicted of a violation of
any such subdivision of section eleven hundred ninety-two of this
article and penalized under subparagraph one, one-a, two or three of
this paragraph twice within the preceding ten years, shall be guilty of
a class D felony, which shall be punishable by a fine of not less than
two thousand dollars nor more than ten thousand dollars, or by a period
of imprisonment as provided in the penal law, or by both such fine and
imprisonment. A person who operates a vehicle in violation of
subdivision six of section eleven hundred ninety-two of this article
after having been convicted of three or more violations of subdivisions
one, two, three, four or six of section eleven hundred ninety-two of
this article within the preceding five years, any one of which was a
misdemeanor, shall be guilty of a class D felony, which shall be
punishable by a fine of not less than two thousand dollars nor more than
ten thousand dollars, or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment. In addition, any
person sentenced pursuant to this subparagraph shall be subject to the
disqualification provided in subparagraph three of paragraph (e) of
subdivision two of this section.
(4-a) A violation of subdivision two, three or four of section eleven
hundred ninety-two of this article wherein the violator is operating a
school bus as defined in section one hundred forty-two of this chapter
and such school bus is carrying at least one student passenger shall be
a class E felony punishable by a fine of not less than one thousand
dollars nor more than five thousand dollars, or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment.
(5) A violation of subdivision two, three or four of section eleven
hundred ninety-two of this article wherein the violator is operating a
motor vehicle with a gross vehicle weight rating of more than eighteen
thousand pounds which contains flammable gas, radioactive materials or
explosives, shall be a class E felony punishable by a fine of not less
than one thousand dollars and such other penalties as provided for in
the penal law; provided, however, that a conviction for such violation
shall not be considered a predicate felony pursuant to section 70.06 of
such law, or a previous felony conviction pursuant to section 70.10 of
such law.
(6) The sentences required to be imposed by subparagraph one, one-a,
two, three, four, four-a or five o paragraph shall be imposed
notwithstanding any contrary provision of this chapter or the penal law.
(7) Nothing contained in this paragraph shall prohibit the imposition
of a charge of any other felony set forth in this or any other provision
of law for any acts arising out of the same incident.
(e) Certain sentences prohibited. Notwithstanding any provisions of
the penal law, no judge or magistrate shall impose a sentence of
unconditional discharge for a violation of any subdivision of section
eleven hundred ninety-two of this article nor shall a judge or
magistrate impose a sentence of conditional discharge or probation
unless such conditional discharge or probation is accompanied by a
sentence of a fine as provided in this subdivision.
(f) Where the court imposes a sentence for a violation of section
eleven hundred ninety-two of this article, the court may require the
defendant, as a part of or as a condition of such sentence, to attend a
single session conducted by a victims impact program. For purposes of
this section, "victims impact program" means a program operated by a
county, a city with a population of one million or more, by a
not-for-profit organization authorized by any such county or city, or a
combination thereof, in which presentations are made concerning the
impact of operating a motor vehicle while under the influence of alcohol
or drugs to one or more persons who have been convicted of such
offenses. A description of any such program shall be filed with the
commissioner and with the coordinator of the special traffic options
program for driving while intoxicated established pursuant to section
eleven hundred ninety-seven of this article, and shall be made available
to the court upon request. Nothing contained herein shall be construed
to require any governmental entity to create such a victim impact
program.
1-a. Additional penalties. (a) Except as provided for in paragraph (b)
of this subdivision, a person who operates a vehicle in violation of
subdivision two or three of section eleven hundred ninety-two of this
article after having been convicted of a violation of subdivision two or
three of such section within the preceding five years shall, in addition
to any other penalties which may be imposed pursuant to subdivision one
of this section, be sentenced to a term of imprisonment of five days or,
as an alternative to such imprisonment, be required to perform thirty
days of service for a public or not-for-profit corporation, association,
institution or agency as set forth in paragraph (h) of subdivision two
of section 65.10 of the penal law as a condition of sentencing for such
violation. Notwithstanding the provisions of this paragraph, a sentence
of a term of imprisonment of five days or more pursuant to the
provisions of subdivision one of this section shall be deemed to be in
compliance with this subdivision.
(b) A person who operates a vehicle in violation of subdivision two or
three of section eleven hundred ninety-two of this article after having
been convicted on two or more occasions of a violation of any of such
subdivisions within the preceding five years shall, in addition to any
other penalties which may be imposed pursuant to subdivision one of this
section, be sentenced to a term of imprisonment of ten days or, as an
alternative to such imprisonment, be required to perform sixty days of
service for a public or not-for-profit corporation, association,
institution or agency as set forth in paragraph (h) of subdivision two
of section 65.10 of the penal law as a condition of sentencing for such
violation. Notwithstanding the provisions of this paragraph, a sentence
of a term of imprisonment of ten days or more pursuant to the provisions
of subdivision one of this section shall be deemed to be in compliance
with this subdivision.
(c) A court sentencing a person pursuant to paragraph (a) or (b) of
this subdivision shall: (i) order the installation of an ignition
interlock device approved pursuant to section eleven hundred
ninety-eight of this article on each motor vehicle owned by the person
so sentenced. Such devices shall remain installed during any period of
license revocation required to be imposed pursuant to paragraph (b) of
subdivision two of this section, and, upon the termination of such
revocation period, for an additional period as determined by the court;
and (ii) order that such person receive an assessment of the degree of
their alcohol abuse. Where such assessment indicates the need for
treatment, such court is authorized to impose treatment as a condition
of such sentence.
2. License sanctions. (a) Suspensions. Except as otherwise provided in
this subdivision, a license shall be suspended and a registration may be
suspended for the following periods:
(1) Driving while ability impaired. Ninety days, where the holder is
convicted of a violation of subdivision one of section eleven hundred
ninety-two of this article;
(2) Persons under the age of twenty-one; driving after having consumed
alcohol. Six months, where the holder has been found to have operated a
motor vehicle after having consumed alcohol in violation of section
eleven hundred ninety-two-a of this article where such person was under
the age of twenty-one at the time of commission of such violation.
(b) Revocations. A license shall be revoked and a registration may be
revoked for the following minimum periods:
(1) Driving while ability impaired; prior offense. Six months, where
the holder is convicted of a violation of subdivision one of section
eleven hundred ninety-two of this article committed within five years of
a conviction for a violation of any subdivision of section eleven
hundred ninety-two of this article.
(1-a) Driving while ability impaired; misdemeanor offense. Six months,
where the holder is convicted of a violation of subdivision one of
section eleven hundred ninety-two of this article committed within ten
years of two previous convictions for a violation of any subdivision of
section eleven hundred ninety-two of this article.
(2) Driving while intoxicated or while ability impaired by drugs. Six
months, where the holder is convicted of a violation of subdivision two,
three or four of section eleven hundred ninety-two of this article.
(3) Driving while intoxicated or while ability impaired by drugs;
prior offense. One year, where the holder is convicted of a violation of
subdivision two, three or four of section eleven hundred ninety-two of
this article committed within ten years of a conviction for a violation
of subdivision two, three or four of section eleven hundred ninety-two
of this article.
(4) Special vehicles other than school buses. One year, where the
holder is convicted of a violation of any subdivision of section eleven
hundred ninety-two of this article and is sentenced pursuant to
subparagraph one of paragraph (d) of subdivision one of this section.
(4-a) School buses. (A) One year, where the holder is convicted of a
violation of any subdivision of section eleven hundred ninety-two of
this article, such violation was committed while the holder was driving
a school bus, and the holder is sentenced pursuant to subparagraph one,
one-a or four-a of paragraph (d) of subdivision one of this section.
(B) Three years where the holder is convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article, such
violation was committed while the holder was driving a school bus, and
the holder is sentenced pursuant to subparagraph four of paragraph (d)
of subdivision one of this section.
(C) Notwithstanding the provisions of the opening paragraph of this
paragraph (b), the commissioner shall not revoke the registration of a
school bus driven in violation of section eleven hundred ninety-two of
this article.
(5) Commercial motor vehicles. (i) Except as otherwise provided in
this subparagraph, one year where the holder is convicted of a violation
of any subdivision of section eleven hundred ninety-two of this article,
such violation was committed while the holder was operating a commercial
motor vehicle and the holder is sentenced pursuant to subparagraph two
of paragraph (d) of subdivision one of this section.
(ii) Three years, where the holder is convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article, such
violation was committed while the holder was operating a commercial
motor vehicle transporting hazardous materials and the holder is
sentenced pursuant to subparagraph two of paragraph (d) of subdivision
one of this section.
(6) Persons under the age of twenty-one. One year, where the holder is
convicted of or adjudicated a youthful offender for a violation of any
subdivision of section eleven hundred ninety-two of this article, or is
convicted of or receives a youthful offender or other juvenile
adjudication for an offense consisting of operating a motor vehicle
under the influence of intoxicating liquor where the conviction, or
youthful offender or other juvenile adjudication was had outside this
state, where such person was under the age of twenty-one at the time of
commission of such violation.
(7) Persons under the age of twenty-one; prior offense or finding. One
year or until the holder reaches the age of twenty-one, whichever is the
greater period of time, where the holder has been found to have operated
a motor vehicle after having consumed alcohol in violation of section
eleven hundred ninety-two-a of this article, or is convicted of, or
adjudicated a youthful offender for, a violation of any subdivision of
section eleven hundred ninety-two of this article, or is convicted of or
receives a youthful offender or juvenile adjudication for an offense
consisting of operating a motor vehicle under the influence of
intoxicating liquor where the conviction, or youthful offender or other
juvenile adjudication was had outside this state, where such person was
under the age of twenty-one at the time of commission of such violation
and has previously been found to have operated a motor vehicle after
having consumed alcohol in violation of section eleven hundred
ninety-two-a of this article, or has previously been convicted of, or
adjudicated a youthful offender for, any violation of section eleven
hundred ninety-two of this article not arising out of the same incident,
or has previously been convicted of or received a youthful offender or
juvenile adjudication for an offense consisting of operating a motor
vehicle under the influence of intoxicating liquor when the conviction,
or youthful offender or other juvenile adjudication was had outside this
state and not arising out of the same.
* (8) Out-of-state offenses. Except as provided in subparagraph six or
seven of this paragraph: (i) ninety days, where the holder is convicted
of an offense consisting of operating a motor vehicle under the
influence of intoxicating liquor where the conviction was had outside
this state and (ii) six months, where the holder is convicted of, or
receives a youthful offender or other juvenile adjudication, which would
have been a misdemeanor or felony if committed by an adult, in
connection with, an offense consisting of operating a motor vehicle
under the influence of or while impaired by the use of drugs where the
conviction or youthful offender or other juvenile adjudication was had
outside this state.
* NB Effective until October 1, 2005
* (8) Out-of-state offenses. Except as provided in subparagraph six or
seven of this paragraph, ninety days, where the holder is convicted of
an offense consisting of operating a motor vehicle under the influence
of intoxicating liquor or drugs where the conviction was had outside
this state.
* NB Effective October 1, 2005
(9) Effect of rehabilitation program. No period of revocation arising
out of subparagraph four, five, six or seven of this paragraph may be
set aside by the commissioner for the reason that such person was a
participant in the alcohol and drug rehabilitation program set forth in
section eleven hundred ninety-six of this chapter.
(10) Action required by commissioner. Where a court fails to impose,
or incorrectly imposes, a suspension or revocation required by this
subdivision, the commissioner shall, upon receipt of a certificate of
conviction filed pursuant to section five hundred fourteen of this
chapter, impose such mandated suspension or revocation, which shall
supersede any such order which the court may have imposed.
(11) Limitation of certain mandatory revocations. Where revocation is
mandatory pursuant to subparagraph five of this paragraph for a
conviction of a violation of subdivision five of section eleven hundred
ninety-two of this article, such revocation shall be issued only by the
commissioner and shall be applicable only to that portion of the
holder`s driver`s license or privilege which permits the operation of
commercial motor vehicles, and the commissioner shall immediately issue
a license, other than a commercial driver`s license, to such person
provided that such person is otherwise eligible to receive such license
and further provided that issuing a license to such person does not
create a substantial traffic safety hazard.
* (c) Reissuance of licenses; restrictions.
(1) Except as otherwise provided in this paragraph, where a license is
revoked pursuant to paragraph (b) of this subdivision, no new license
shall be issued after the expiration of the minimum period specified in
such paragraph, except in the discretion of the commissioner.
(2) Where a license is revoked pursuant to subparagraph two, three or
eight of paragraph (b) of this subdivision for a violation of
subdivision four of section eleven hundred ninety-two of this article,
and where the individual does not have a driver`s license or the
individual`s license was suspended at the time of conviction or youthful
offender or other juvenile adjudication, the commissioner shall not
issue a new license nor restore the former license for a period of six
months after such individual would otherwise have become eligible to
obtain a new license or to have the former license restored; provided,
however, that during such delay period the commissioner may issue a
restricted use license pursuant to section five hundred thirty of this
chapter.
(3) In no event shall a new license be issued where a person has been
twice convicted of a violation of subdivision three or four of section
eleven hundred ninety-two of this article or of driving while
intoxicated or of driving while ability is impaired by the use of a drug
where physical injury, as defined in section 10.00 of the penal law, has
resulted from such offense in each instance.
* NB Effective until October 1, 2005
* (c) Reissuance of licenses; restrictions. Where a license is revoked
pursuant to paragraph (b) of this subdivision, no new license shall be
issued after the expiration of the minimum period specified in such
paragraph, except in the discretion of the commissioner; provided,
however, that in no event shall a new license be issued where a person
has been twice convicted of a violation of subdivision three or four of
section eleven hundred ninety-two of this article or of driving while
intoxicated or of driving while ability is impaired by the use of a drug
where physical injury, as defined in section 10.00 of the penal law, has
resulted from such offense in each instance.
* NB Effective October 1, 2005
(d) Suspension or revocation; sentencing. (1) Notwithstanding anything
to the contrary contained in a certificate of relief from disabilities
issued pursuant to article twenty-three of the correction law, where a
suspension or revocation, other than a revocation required to be issued
by the commissioner, is mandatory pursuant to paragraph (a) or (b) of
this subdivision, the magistrate, justice or judge shall issue an order
suspending or revoking such license upon sentencing, and the license
holder shall surrender such license to the court. Except as hereinafter
provided, such suspension or revocation shall take effect immediately.
(2) Except where the license holder has been charged with a violation
of article one hundred twenty or one hundred twenty-five of the penal
law arising out of the same incident or convicted of such violation or a
violation of any subdivision of section eleven hundred ninety-two of
this article within the preceding five years, the judge, justice or
magistrate may issue an order making said license suspension or
revocation take effect twenty days after the date of sentencing. The
license holder shall be given a copy of said order permitting the
continuation of driving privileges for twenty days after sentencing, if
granted by the court. The court shall forward to the commissioner the
certificates required in sections five hundred thirteen and five hundred
fourteen of this chapter, along with a copy of any order issued pursuant
to this paragraph and the license, within ninety-six hours of
sentencing.
(e) Special provisions. (1) Suspension pending prosecution; procedure.
a. Without notice, pending any prosecution, the court shall suspend such
license, where the holder has been charged with a violation of
subdivision two, three or four of section eleven hundred ninety-two of
this article and either (i) a violation of a felony under article one
hundred twenty or one hundred twenty-five of the penal law arising out
of the same incident, or (ii) has been convicted of any violation under
section eleven hundred ninety-two of this article within the preceding
five years.
b. The suspension under the preceding clause shall occur no later than
twenty days after the holder`s first appearance before the court on the
charges or at the conclusion of all proceedings required for the
arraignment. 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 that the holder operated a motor vehicle in violation
of subdivision two, three or four of section eleven hundred ninety-two
of this article and either (i) the person had been convicted of any
violation under such section eleven hundred ninety-two of this article
within the preceding five years; or (ii) that the holder committed a
violation of a felony under article one hundred twenty or one hundred
twenty-five of the penal law. At such time the holder shall be entitled
to an opportunity to make a statement regarding the enumerated issues
and to present evidence tending to rebut the court`s findings. Where
such suspension is imposed upon a pending charge of a violation of a
felony under article one hundred twenty or one hundred twenty-five of
the penal law and the holder has requested a hearing pursuant to article
one hundred eighty of the criminal procedure law, the court shall
conduct such hearing. If upon completion of the hearing, the court fails
to find that there is reasonable cause to believe that the holder
committed a felony under article one hundred twenty or one hundred
twenty-five of the penal law and the holder has not been previously
convicted of any violation of section eleven hundred ninety-two of this
article within the preceding five years the court shall promptly notify
the commissioner and direct restoration of such license to the license
holder unless such license is suspended or revoked pursuant to any other
provision of this chapter.
(2) Bail forfeiture. A license shall be suspended where the holder
forfeits bail upon a charge of a violation of any subdivision of section
eleven hundred ninety-two of this article. Such suspension shall not be
terminated until the holder submits to the jurisdiction of the court in
which the bail was forfeited.
(3) Permanent disqualification from operating certain motor vehicles.
a. Except as otherwise provided herein, in addition to any revocation
set forth in subparagraph four or five of paragraph (b) of this
subdivision, any person sentenced pursuant to subparagraph three of
paragraph (d) of subdivision one of this section shall be permanently
disqualified from operating any vehicle set forth in such paragraph. In
addition, the commissioner shall not issue such person a license valid
for the operation of any vehicle set forth therein by such person. The
commissioner may waive such disqualification and prohibition
hereinbefore provided after a period of five years has expired from such
sentencing provided:
(i) that during such five year period such person has not violated any
of the provisions of section eleven hundred ninety-two of this article
or any alcohol or drug related traffic offense in this state or in any
jurisdiction outside this state;
(ii) that such person provides acceptable documentation to the
commissioner 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
granted a certificate of relief from disabilities as provided for in
section seven hundred one of the correction law by the court in which
such person was last penalized pursuant to paragraph (d) of subdivision
one of this section.
b. Any person convicted of a violation of any subdivision of section
eleven hundred ninety-two of this article while operating a commercial
motor vehicle who has had a prior finding of refusal to submit to a
chemical test pursuant to section eleven hundred ninety-four of this
article while operating a commercial motor vehicle or has had 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, shall be permanently
disqualified from operating a commercial motor vehicle. The commissioner
may waive such disqualification and prohibition hereinbefore provided
after a period of ten years has expired from such sentence provided:
(i) that during such ten year period such person has not been found to
have refused a chemical test pursuant to section eleven hundred
ninety-four of this article while operating a commercial motor vehicle
and has not been convicted of any one 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;
(ii) that such person provides acceptable documentation to the
commissioner 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
granted a certificate of relief from disabilities as provided for in
section seven hundred one of the correction law by the court in which
such person was last penalized pursuant to paragraph (d) of subdivision
one of this section.
c. Upon a third finding of refusal and/or conviction of any of the
offenses which require a permanent commercial driver`s license
revocation, such permanent revocation may not be waived by the
commissioner under any circumstances.
(4) Youthful offenders. Where a youth is determined to be a youthful
offender, following a conviction of a violation of section eleven
hundred ninety-two of this article for which a license suspension or
revocation is mandatory, the court shall impose such suspension or
revocation as is otherwise required upon conviction and, further, shall
notify the commissioner of said suspension or revocation and its finding
that said violator is granted youthful offender status as is required
pursuant to section five hundred thirteen of this chapter.
(5) Probation. When a license to operate a motor vehicle has been
revoked pursuant to this chapter, and the holder has been sentenced to a
period of probation pursuant to section 65.00 of the penal law for a
violation of any provision of this chapter, or any other provision of
the laws of this state, and a condition of such probation is that the
holder thereof not operate a motor vehicle or not apply for a license to
operate a motor vehicle during the period of such condition of
probation, the commissioner may not restore such license until the
period of the condition of probation has expired.
(6) Application for new license. Where a license has been revoked
pursuant to paragraph (b) of this subdivision, or where the holder is
subject to a condition of probation as provided in subparagraph five of
this paragraph, application for a new license may be made within
forty-five days prior to the expiration of such minimum period of
revocation or condition of probation, whichever expires last.
* (7) Suspension pending prosecution; excessive blood alcohol content.
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 or three 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 as shown by chemical analysis of blood, breath, urine or
saliva, made pursuant to subdivision two or three of section eleven
hundred ninety-four of this article.
a-1. A court shall suspend a class DJ or MJ learner`s permit or a
class DJ or MJ driver`s license, pending prosecution, of any person who
has been charged with a violation of subdivision one, two and/or three
of section eleven hundred ninety-two of this article.
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 in his or her blood as was shown by chemical
analysis of such person`s blood, breath, urine or saliva, made pursuant
to the provisions of section eleven hundred ninety-four of this article
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 present evidence
tending to rebut the court`s findings.
c. Nothing contained in this subparagraph shall be construed to
prohibit or limit a court from imposing any other suspension pending
prosecution required or permitted by law.
d. Notwithstanding any contrary provision of this chapter, if any
suspension occurring under this subparagraph has been in effect for a
period of thirty days, the holder may be issued a conditional license,
in accordance with section eleven hundred ninety-six of this article,
provided the holder of such license is otherwise eligible to receive
such conditional license. The commissioner shall prescribe by regulation
the procedures for the issuance of such conditional license.
e. If the court finds that the suspension imposed pursuant to this
subparagraph will result in extreme hardship, the court must issue such
suspension, but may grant a hardship privilege, which shall be issued on
a form prescribed by the commissioner. For the purposes of this clause,
"extreme hardship" shall mean the inability to obtain alternative means
of travel to or from the licensee`s employment, or to or from necessary
medical treatment for the licensee or a member of the licensee`s
household, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee`s school, college or university if such travel is necessary for
the completion of the educational degree or certificate. The burden of
proving extreme hardship shall be on the licensee who may present
material and relevant evidence. A finding of extreme hardship may not be
based solely upon the testimony of the licensee. In no event shall
arraignment be adjourned or otherwise delayed more than three business
days solely for the purpose of allowing the licensee to present evidence
of extreme hardship. The court shall set forth upon the record, or
otherwise set forth in writing, the factual basis for such finding. The
hardship privilege shall permit the operation of a vehicle only for
travel to or from the licensee`s employment, or to or from necessary
medical treatment for the licensee or a member of the licensee`s
household, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee`s school, college or university if such travel is necessary for
the completion of the educational degree or certificate.
* NB Repealed October 1, 2005
(f) Notice of charges to parent or guardian. Notwithstanding the
provisions of subdivision two of section eighteen hundred seven of this
chapter, upon the first scheduled appearance of any person under
eighteen years of age who resides within the household of his or her
parent or guardian upon a charge of a violation of subdivision one, two
and/or three of section eleven hundred ninety-two of this article, the
local criminal court before which such first appearance is scheduled
shall forthwith transmit written notice of such appearance or failure to
make such appearance to the parent or guardian of such minor person;
provided, however, that if an arraignment and conviction of such person
follows such appearance upon the same day, or in case such person waives
arraignment and enters a plea of guilty to the offense as charged in
accordance with the provisions of section eighteen hundred five of this
chapter, transmittal of notice of his or her conviction as provided in
section five hundred fourteen of this chapter shall be sufficient and
the notice required by this paragraph need not be given; provided
further that the failure of a local criminal court to transmit the
notice required by this paragraph shall in no manner affect the validity
of a conviction subsequently obtained.
S 1194. Arrest and testing. 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
officer, submit to a breath test to be administered by the police
officer. If such test indicates that such operator has consumed alcohol,
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. Chemical tests. (a) When authorized. Any person who operates a
motor vehicle in this state shall be deemed to have given consent to a
chemical test of one or more of the following: breath, blood, urine, or
saliva, 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 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
circumstances 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
alcohol 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
is authorized pursuant to this paragraph may be temporarily detained by
the police solely for the purpose of requesting or administering such
chemical test 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.
(b) Report of refusal. (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) 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.
(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. 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 subdivision, 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 subsequent proceedings with regard to
refusal to submit to such chemical test 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
transmitted 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
arraignment.
(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
subdivision 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
hearing 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
portion thereof, would result in the immediate suspension and subsequent
revocation of such person`s license or operating 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. If, after such hearing, the hearing officer, acting
on behalf of the commissioner, finds on any one of said issues in the
negative, 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 six months after such revocation, nor thereafter, except in the
discretion of the commissioner. However, no such license shall be
restored for at least one year after such revocation, nor thereafter
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, 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 finding that a person under the
age of twenty-one has refused to submit to a chemical test 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 suspension 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
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 license which has been revoked pursuant to paragraph (c) of
this subdivision based upon a finding of refusal to submit to a chemical
test while operating a commercial motor vehicle shall not be restored
for at least one year 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, when the commercial motor vehicle was
transporting hazardous materials at the time of such refusal. However,
such person shall be permanently disqualified from operating a
commercial motor vehicle in any case where the holder has a prior
finding of refusal to submit to a chemical test 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. 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 pursuant to this section while operating a
commercial motor vehicle and has not been convicted of any one of the
following offenses while operating a commercial motor vehicle: any
violation of section eleven hundred ninety-two of this article; refusal
to submit to a chemical test pursuant to this section; 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;
(ii) that such person provides acceptable documentation to the
commissioner 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
granted a certificate of relief from disabilities as provided for in
section seven hundred one 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
revocation, 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 three hundred dollars except that
if 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 while operating a commercial motor vehicle shall also
be liable for a civil penalty of three hundred fifty dollars except that
if such person has previously been found to have refused a chemical test
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 penalty 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
rehabilitation 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
subdivisions one and two of this section.
(f) Evidence. Evidence of a refusal to submit to such chemical test or
any portion thereof shall be admissible in any trial, proceeding or
hearing based upon a violation of the provisions of section eleven
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.
(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, for the purpose of determining the alcoholic and/or drug
content of the blood 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
chemical 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,
requests and obtains a court order to compel a person to submit to a
chemical test to determine the alcoholic or drug content of the person`s
blood 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; 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 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; 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, 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,
indicate 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 in or around the
vehicle driven by the operator; any other evidence surrounding the
circumstances of the incident which indicates that the operator has been
operating 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
incident 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
and, based upon the totality of circumstances, there is reasonable cause
to believe that such person was operating a motor vehicle 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 accordance 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
longhand notes. If a voice recording device is used or a stenographic
record made, the judge must have the record transcribed, certify to the
accuracy 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 blood and ordering the
withdrawal of a blood sample in accordance with the provisions of
paragraph (a) of subdivision four of this section. When a judge or
justice determines 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
available 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
pursuant 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 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.
4. Testing procedures. (a) Persons authorized to withdraw blood;
immunity; testimony. (1) At the request of a police officer, the
following persons may withdraw blood for the purpose of determining the
alcoholic or drug content therein: (i) a physician, a registered
professional nurse or a registered physician`s assistant; or (ii) under
the supervision and at the direction of a physician: a medical
laboratory technician or medical technologist as classified by civil
service; a phlebotomist; an advanced emergency medical technician as
certified by the department of health; or a medical laboratory
technician or medical technologist employed by a clinical laboratory
approved under title five of article five of the public health law. This
limitation shall not apply to the taking of a urine, saliva or breath
specimen.
(2) No person entitled to withdraw blood pursuant to subparagraph one
of this paragraph or hospital employing such person, and no other
employer of such person shall be sued or held liable for any act done or
omitted in the course of withdrawing blood at the request of a police
officer pursuant to this section.
(3) Any person who may have a cause of action arising from the
withdrawal of blood as aforesaid, for which no personal liability exists
under subparagraph two of this paragraph, may maintain such action
against the state if any person entitled to withdraw blood pursuant to
paragraph (a) hereof acted at the request of a police officer employed
by the state, or against the appropriate political subdivision of the
state if such person acted at the request of a police officer employed
by a political subdivision of the state. No action shall be maintained
pursuant to this subparagraph unless notice of claim is duly filed or
served in compliance with law.
(4) Notwithstanding the foregoing provisions of this paragraph an
action may be maintained by the state or a political subdivision thereof
against a person entitled to withdraw blood pursuant to subparagraph one
of this paragraph or hospital employing such person for whose act or
omission the state or the political subdivision has been held liable
under this paragraph to recover damages, not exceeding the amount
awarded to the claimant, that may have been sustained by the state or
the political subdivision by reason of gross negligence or bad faith on
the part of such person.
(5) The testimony of any person other than a physician, entitled to
withdraw blood pursuant to subparagraph one of this paragraph, in
respect to any such withdrawal of blood made by such person may be
received in evidence with the same weight, force and effect as if such
withdrawal of blood were made by a physician.
(6) The provisions of subparagraphs two, three and four of this
paragraph shall also apply with regard to any person employed by a
hospital as security personnel for any act done or omitted in the course
of withdrawing blood at the request of a police officer pursuant to a
court order in accordance with subdivision three of this section.
(b) Right to additional test. The person tested shall be permitted to
choose a physician to administer a chemical test in addition to the one
administered at the direction of the police officer.
(c) Rules and regulations. The department of health shall issue and
file rules and regulations approving satisfactory techniques or methods
of conducting chemical analyses of a person`s blood, urine, breath or
saliva and to ascertain the qualifications and competence of individuals
to conduct and supervise chemical analyses of a person`s blood, urine,
breath or saliva. If the analyses were made by an individual possessing
a permit issued by the department of health, this shall be presumptive
evidence that the examination was properly given. The provisions of this
paragraph do not prohibit the introduction as evidence of an analysis
made by an individual other than a person possessing a permit issued by
the department of health.
S 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.
S 1195. Chemical 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
evidence of the amount of alcohol or drugs in the defendant`s blood as
shown by a test administered 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
blood-alcohol content, as determined by such tests, of a person arrested
for violation of section eleven hundred ninety-two of this article:
(a) Evidence that there was .05 of one per centum or less by weight of
alcohol in such person`s blood shall be prima facie evidence that the
ability of such person to operate a motor vehicle was not impaired by
the consumption of alcohol, and that such person was not in an
intoxicated condition;
(b) Evidence that there was more than .05 of one per centum but less
than .07 of one per centum by weight of alcohol in such person`s blood
shall be prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be relevant evidence, but shall not
be given prima facie effect, in determining whether the ability of such
person to operate a motor vehicle was impaired by the consumption of
alcohol; and
(c) Evidence that there was .07 of one per centum or more but less
than .08 of one per centum by weight of alcohol in such person`s blood
shall be prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be given prima facie effect in
determining whether the ability of such person to operate a motor
vehicle was impaired by the consumption of alcohol.
3. Suppression. A defendant who has been compelled to submit to a
chemical test pursuant to the provisions of subdivision three 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.
S 1196. Alcohol and drug rehabilitation program. 1. Program
establishment. There is hereby established an alcohol and drug
rehabilitation program within the department of motor vehicles. The
commissioner shall establish, by regulation, the instructional and
rehabilitative aspects of the program. Such program shall consist of at
least fifteen hours and include, but need not be limited to, classroom
instruction in areas deemed suitable by the commissioner. No person
shall be required to attend or participate in such program or any aspect
thereof for a period exceeding eight months except upon the
recommendation of the department of mental hygiene or appropriate health
officials administering the program on behalf of a municipality.
2. Curriculum. The form, content and method of presentation of the
various aspects of such program shall be established by the
commissioner. In the development of the form, curriculum and content of
such program, the commissioner may consult with the commissioner of
mental health, the director of the division of alcoholism and alcohol
abuse, the director of the division of substance abuse services and any
other state department or agency and request and receive assistance from
them. The commissioner is also authorized to develop more than one
curriculum and course content for such program in order to meet the
varying rehabilitative needs of the participants.
3. Where available. A course in such program shall be available in at
least every county in the state, except where the commissioner
determines that there is not a sufficient number of alcohol or
drug-related traffic offenses in a county to mandate the establishment
of said course, and that provisions be made for the residents of said
county to attend a course in another county where a course exists.
4. Eligibility. Participation in the program shall be limited to those
persons convicted of alcohol or drug-related traffic offenses or persons
who have been adjudicated youthful offenders for alcohol or drug-related
traffic offenses, or persons found to have been operating a motor
vehicle after having consumed alcohol in violation of section eleven
hundred ninety-two-a of this article, who choose to participate and who
satisfy the criteria and meet the requirements for participation as
established by this section and the regulations promulgated thereunder;
provided, however, in the exercise of discretion, the judge imposing
sentence may prohibit the defendant from enrolling in such program. The
commissioner or deputy may exercise discretion, to reject any person
from participation referred to such program and nothing herein contained
shall be construed as creating a right to be included in any course or
program established under this section. In addition, no person shall be
permitted to take part in such program if, during the five years
immediately preceding commission of an alcohol or drug-related traffic
offense or a finding of a violation of section eleven hundred
ninety-two-a of this article, such person has participated in a program
established pursuant to this article or been convicted of a violation of
any subdivision of section eleven hundred ninety-two of this article
other than a violation committed prior to November first, nineteen
hundred eighty-eight, for which such person did not participate in such
program. In the exercise of discretion, the commissioner or a deputy
shall have the right to expel any participant from the program who fails
to satisfy the requirements for participation in such program or who
fails to satisfactorily participate in or attend any aspect of such
program. Notwithstanding any contrary provisions of this chapter,
satisfactory participation in and completion of a course in such program
shall result in the termination of any sentence of imprisonment that may
have been imposed by reason of a conviction therefor; provided, however,
that nothing contained in this section shall delay the commencement of
such sentence.
5. Effect of completion. Except as provided in subparagraph nine of
paragraph (b) of subdivision two of section eleven hundred ninety-three
or in subparagraph three of paragraph (d) of subdivision two of section
eleven hundred ninety-four of this article, upon successful completion
of a course in such program as certified by its administrator, a
participant may apply to the commissioner on a form provided for that
purpose, for the termination of the suspension or revocation order
issued as a result of the participant`s conviction which caused the
participation in such course. In the exercise of discretion, upon
receipt of such application, and upon payment of any civil penalties for
which the applicant may be liable, the commissioner is authorized to
terminate such order or orders and return the participant`s license or
reinstate the privilege of operating a motor vehicle in this state.
However, the commissioner shall not issue any new license nor restore
any license where said issuance of restoral is prohibited by subdivision
two of section eleven hundred ninety-three of this article.
6. Fees. The commissioner shall establish a schedule of fees to be
paid by or on behalf of each participant in the program, and may, from
time to time, modify same. Such fees shall defray the ongoing expenses
of the program. Provided, however, that pursuant to an agreement with
the department a municipality, department thereof, or other agency may
conduct a course in such program with all or part of the expense of such
course and program being borne by such municipality, department or
agency. In no event shall such fee be refundable, either for reasons of
the participant`s withdrawal or expulsion from such program or
otherwise.
7. Conditional license. (a) Notwithstanding any inconsistent
provision of this chapter, participants in the program, except those
penalized under paragraph (d) of subdivision one of section eleven
hundred ninety-three of this article for any violation of subdivision
two, three, or four of section eleven hundred ninety-two of this
article, may, in the commissioner`s discretion, be issued a conditional
driver`s license, or if the holder of a license issued by another
jurisdiction valid for operation in this state, a conditional privilege
of operating a motor vehicle in this state. Such a conditional license
or privilege shall be valid only for use, by the holder thereof, (1)
enroute to and from the holder`s place of employment, (2) if the
holder`s employment requires the operation of a motor vehicle then
during the hours thereof, (3) enroute to and from a class or an activity
which is an authorized part of the alcohol and drug rehabilitation
program and at which his attendance is required, (4) enroute to and from
a class or course at an accredited school, college or university or at a
state approved institution of vocational or technical training, (5) to
or from court ordered probation activities, (6) to and from a motor
vehicle office for the transaction of business relating to such license
or program, (7) for a three hour consecutive daytime period, chosen by
the administrators of the program, on a day during which the participant
is not engaged in usual employment or vocation, (8) enroute to and from
a medical examination or treatment as part of a necessary medical
treatment for such participant or member of the participant`s household,
as evidenced by a written statement to that effect from a licensed
medical practitioner, and (9) enroute to and from a place, including a
school, at which a child or children of the holder are cared for on a
regular basis and which is necessary for the holder to maintain such
holder`s employment or enrollment at an accredited school, college or
university or at a state approved institution of vocational or technical
training. Such license or privilege shall remain in effect during the
term of the suspension or revocation of the participant`s license or
privilege unless earlier revoked by the commissioner.
(b) The conditional license or privilege described in paragraph (a) of
this subdivision shall be in a form prescribed by the commissioner, and
shall have indicated thereon the conditions imposed by such paragraph.
(c) Upon receipt of a conditional license issued pursuant to this
section, any order issued by a judge, justice or magistrate pursuant to
paragraph (c) of subdivision two of section eleven hundred ninety-three
of this article shall be surrendered to the department.
(d) The commissioner shall require applicants for a conditional
license to pay a fee of seventy-five dollars for processing costs. Such
fees assessed under this subdivision shall be paid to the commissioner
for deposit to the general fund and shall be in addition to any fees
established by the commissioner pursuant to subdivision six of this
section to defray the costs of the alcohol and drug rehabilitation
program.
(e) The conditional license or privileges described in this
subdivision may be revoked by the commissioner, for sufficient cause
including, but not limited to, failure to register in the program,
failure to attend or satisfactorily participate in the sessions,
conviction of any traffic infraction other than one involving parking,
stopping or standing or conviction of any alcohol or drug-related
traffic offense, misdemeanor or felony. In addition, the commissioner
shall have the right, after a hearing, to revoke the conditional license
or privilege upon receiving notification or evidence that the offender
is not attempting in good faith to accept rehabilitation. In the event
of such revocation, the fee described in subdivision six of this section
shall not be refunded.
(f) It shall be a traffic infraction for the holder of a conditional
license or privilege to operate a motor vehicle upon a public highway
for any use other than those authorized pursuant to paragraph (a) of
this subdivision. When a person is convicted of this offense, the
sentence of the court must be a fine of not less than two hundred
dollars nor more than five hundred dollars or a term of imprisonment of
not more than fifteen days or both such fine and imprisonment.
Additionally, the conditional license or privileges described in this
subdivision shall be revoked by the commissioner upon receiving
notification from the court that the holder thereof has been convicted
of this offense.
(g) Any conditional license or privilege issued to a person convicted
of a violation of any subdivision of section eleven hundred ninety-two
of this article shall not be valid for the operation of any commercial
motor vehicle or taxicab as defined in this chapter.
(h) Notwithstanding any inconsistent provision of this chapter, the
conditional license described in this subdivision may, pursuant to
regulations established by the commissioner, be issued to a person whose
license has been suspended pending prosecution pursuant to subparagraph
seven of paragraph (e) of subdivision two of section eleven hundred
ninety-three of this article.
S 1197. Special traffic options program for driving while intoxicated.
"The program", as used in this section, shall mean the special traffic
options program for driving while intoxicated, a program established
pursuant to this section, and approved by the commissioner of motor
vehicles. 1. Program establishment. (a) Where a county establishes a
special traffic options program for driving while intoxicated, pursuant
to this section, it shall receive fines and forfeitures collected by any
court, judge, magistrate or other officer within that county, including,
where appropriate, a hearing officer acting on behalf of the
commissioner,: (1) imposed for violations of subparagraphs (ii) and
(iii) of paragraph (a) of subdivision two or subparagraph (i) of
paragraph (a) of subdivision three of section five hundred eleven of
this chapter; (2) imposed in accordance with the provisions of section
eleven hundred ninety-three and civil penalties imposed pursuant to
subdivision two of section eleven hundred ninety-four-a of this article,
including, where appropriate, a hearing officer acting on behalf of the
commissioner, from violations of sections eleven hundred ninety-two,
eleven hundred ninety-two-a and findings made under section eleven
hundred ninety-four-a of this article; and (3) imposed upon a conviction
for: vehicular assault in the first degree, pursuant to section 120.04
of the penal law; vehicular assault in the second degree, pursuant to
section 120.03 of the penal law; vehicular manslaughter in the first
degree, pursuant to section 125.13 of the penal law; and vehicular
manslaughter in the second degree, pursuant to section 125.12 of the
penal law, as provided in section eighteen hundred three of this
chapter. Upon receipt of these moneys, the county shall deposit them in
a separate account entitled "special traffic options program for driving
while intoxicated" and they shall be under the exclusive care, custody
and control of the chief fiscal officer of each county participating in
the program.
(b) Expenditures from such account shall only be made pursuant to the
approval of a county program by the commissioner of motor vehicles. The
chief fiscal officer of each participating county shall, on a quarterly
basis, forward to the commissioner a written certificate of moneys
expended from such account.
2. Program organization. (a) Where a program is established by a
county, it shall be organized by a coordinator for the special traffic
options program for driving while intoxicated, who shall be designated
by the chief executive officer of the county, if there be one, otherwise
the chairman of the governing board of the county, or in the city of New
York, a person designated by the mayor thereof. Where a coordinator is
designated, the coordinator shall receive such salary and expenses as
the board of legislators or other governing body of such county may fix
and properly account for such expenses and shall serve at the pleasure
of such appointing body or officer. (b) In counties having a county
traffic safety board, the chief executive officer, if there be one,
otherwise the chairman of the governing board of the county or the mayor
of the city of New York, may designate the chairman of the board or a
member thereof as coordinator of the program.
3. Purposes. (a) The program shall provide a plan for coordination of
county, town, city and village efforts to reduce alcohol-related traffic
injuries and fatalities.
(b) The program shall, where approved by the county board or other
governing body, provide funding for such activities as the board or
other body may approve, for the above-described purposes.
4. Duties of the coordinator; reports. (a) It shall be the duty of the
coordinator to:
(1) Render annually or at the request of the county legislature or
other governing body of the county, a verified account of all moneys
received and expended by the coordinator or under the coordinator`s
direction and an account of other pertinent matters.
(2) Submit annually or upon request of the chief fiscal officer of
each county participating in the program, in such manner as may be
required by law, an estimate of the funds required to carry out the
purposes of this section.
(3) Make an annual report to the commissioner, which shall be due on
or before the first day of April of each year following the
implementation of said program, and shall include the following:
a. the progress, problems and other matters related to the
administration of said program; and
b. an assessment of the effectiveness of the program within the
geographic area of the county participating therein and any and all
recommendations for expanding and improving said program.
(b) Any annual report shall also contain the following, in a form
prescribed by the commissioner:
(1) Number of arrests for violations of section eleven hundred
ninety-two of this article and subdivision two of section five hundred
eleven of this chapter;
(2) Number and description of dispositions resulting therefrom;
(3) Number of suspensions issued in the county for alleged refusals
to submit to chemical tests;
(4) Total fine moneys returned to the participating county in
connection with the program;
(5) Contemplated programs;
(6) Distribution of moneys in connection with program adminstration;
(7) Any other information required by the commissioner.
5. Functions of the coordinator. In addition to the duties of the
coordinator as provided in subdivision four of this section, the
coordinator shall perform the following functions:
(a) Formulate a special traffic options program for driving while
intoxicated and coordinate efforts of interested parties and agencies
engaged in alcohol traffic safety, law enforcement, adjudication,
rehabilitation and preventive education.
(b) Receive proposals from county, town, city or village agencies or
non-governmental groups for activities related to alcohol traffic safety
and to submit them to the county board of legislators or other such
governing body, together with a recommendation for funding of the
activity if deemed appropriate.
(c) Cooperate with and assist local officials within the county in the
formulation and execution of alcohol traffic safety programs including
enforcement, adjudication, rehabilitation and education.
(d) Study alcohol traffic safety problems with the county and
recommend to the appropriate legislative bodies, departments or
commissions, such changes in rules, orders, regulations and existing law
as the coordinator may deem advisable.
(e) Promote alcohol and drug-related traffic safety education for
drivers.
(f) Obtain and assemble data on alcohol-related accident arrests,
convictions and accidents and to analyze, study, and consolidate such
data for educational, research and informational purposes.
6. County purpose and charge. The provisions of this section and
expenditures made hereunder shall be deemed a county purpose and charge.
7. The program, including a proposed operational budget, shall be
submitted by each county coordinator to the commissioner for approval.
The commissioner shall consider the following before approving said
program:
(a) The interrelationship of such program with existing drunk driving
related programs in areas including, but not limited to, law
enforcement, prosecution, adjudication and education.
(b) Avoidance of duplication of existing programs funded or operated
by either the state or any municipality including, but not limited to,
the alcohol and drug rehabilitation program, established under section
eleven hundred ninety-six of this article.
(c) All other factors which the commissioner shall deem necessary.
8. Duties of the commissioner. (a) The commissioner shall compile the
reports submitted by the county coordinators and shall issue a
comprehensive report on such programs to the governor and to the
legislature.
(b) The commissioner shall monitor all programs to ensure satisfactory
implementation in conjunction with the established program application
goals.
9. Program cessation. When a participating county wishes to cease its
program, the coordinator shall notify the commissioner in writing of the
date of termination and all money remaining in the fund established by
that county pursuant to subdivision one of this section on such date
shall be transferred to the general fund of the state treasury. All
fines and forfeitures collected pursuant to the provisions of this
section on and after the termination date shall be disposed of in
accordance with subdivision one of section eighteen hundred three of
this chapter.
10. Program audit. The comptroller is authorized to conduct audits of
any program established pursuant to this section for the purposes of
determining compliance with the provisions of this section and with
generally accepted accounting principles.
* S 1198. Ignition interlock device program. 1. Scope of program.
There is hereby created in this state an ignition interlock device
program. The provisions of this section shall apply only to persons
sentenced by a court located in the following counties: Albany, Erie,
Nassau, Onondaga, Monroe, Westchester and Suffolk; except that paragraph
(b) of subdivision four, subdivisions five, eight and ten of this
section shall apply in all parts of the state if a vehicle has been
equipped with an ignition interlock device as a condition of probation.
This section shall not be construed to preclude other counties not
specifically designated therein from implementing an ignition interlock
device program or to prevent courts in other jurisdictions from
requiring the installation of an ignition interlock device as a
condition of probation.
2. Requirements. (a) In addition to any other penalties prescribed by
law, the court may require that any person who has been convicted of a
violation of subdivision two or three of section eleven hundred
ninety-two of this chapter, or any crime defined by this chapter or the
penal law of which an alcohol-related violation of any provision of
section eleven hundred ninety-two of this chapter is an essential
element, and who has been sentenced to a period of probation, install
and maintain, as a condition of such probation, a functioning ignition
interlock device in accordance with the provisions of this section;
provided, however, the court may not authorize the operation of a motor
vehicle by any person whose license or privilege to operate a motor
vehicle has been revoked except as provided herein.
(b) Nothing contained in this section shall prohibit a court, upon
application by a probation department located in any county set forth in
subdivision one of this section, from modifying the conditions of
probation of any person convicted of any violation set forth in
paragraph (a) of this subdivision prior to the effective date of this
section, to require the installation and maintenance of a functioning
ignition interlock device, and such person shall thereafter be subject
to the provisions of this section.
(c) Nothing contained in this section shall authorize a court to
sentence any person to a period of probation for the purpose of
subjecting such person to the provisions of this section, unless such
person would have otherwise been so sentenced to a period of probation.
3. Conditions. (a) Notwithstanding any other provision of law, the
commissioner may grant a post-revocation conditional license, as set
forth in paragraph (b) of this subdivision, to a person who has been
convicted of a violation of subdivision two or three of section eleven
hundred ninety-two of this chapter and who has been sentenced to a
period of probation, provided the person has satisfied the minimum
period of license revocation established by law and the commissioner has
been notified that such person may operate only a motor vehicle equipped
with a functioning ignition interlock device. No such request shall be
made nor shall such a license be granted, however, if such person has
been found by a court to have committed a violation of section five
hundred eleven of this chapter during the license revocation period or
deemed by a court to have violated any condition of probation set forth
by the court relating to the operation of a motor vehicle or the
consumption of alcohol. In exercising discretion relating to the
issuance of a post-revocation conditional license pursuant to this
subdivision, the commissioner shall not deny such issuance based solely
upon the number of convictions for violations of any subdivision of
section eleven hundred ninety-two of this chapter committed by such
person within th