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A04519 Summary:

BILL NOA04519
 
SAME ASNo Same As
 
SPONSORZebrowski
 
COSPNSRMcDonough, Eachus
 
MLTSPNSR
 
Amd §1194, V & T L
 
Relates to saliva swabs and chemical tests in certain cases.
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A04519 Actions:

BILL NOA04519
 
02/16/2023referred to transportation
01/03/2024referred to transportation
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A04519 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4519
 
SPONSOR: Zebrowski
  TITLE OF BILL: An act to amend the vehicle and traffic law, in relation to saliva swabs and chemical tests in certain cases   PURPOSE OR GENERAL IDEA OF BILL: To utilize recent developments in the detection of drugs and other chem- ical substances to assist in holding impaired drivers responsible for serious motor vehicle crashes resulting in the death or serious physical injury of a third party or parties.   SUMMARY OF PROVISIONS: Amends subdivisions 1 and 2 of S 1194 of the Vehicle and Traffic Law (VTL) to place the use of saliva swabs for the detection of drugs on a par with roadside breath tests for alcohol as an accepted field test and the basis for establishing reasonable cause that a person was driving while under the influence of drugs or combined drugs and alcohol. Amends subdivision 3 of VTL 5 1194 relating to compulsory chemical tests, to allow the following to be permissible in establishing grounds for a court-ordered compulsory chemical or blood test in cases where a person is involved in a crash resulting in the death or serious physical injury of a third party: (1) A saliva swab indicates the consumption of drugs; or (2) A police officer trained and certified as a "Drug Recognition Expert" or who has received training under NHTSA's A-Ride program has reason to believe that such person is under the influence of drugs or the combined influence of drugs and alcohol.-   JUSTIFICATION: Over the past several years, the number of persons arrested and convicted for driving while impaired by drugs has increased by about 15%, while the number of persons convicted of driving while intoxicated or under the influence of alcohol has dropped by approximately 20%. The upward trend of driving while under the influence of drugs is explained by a couple of factors. First, there are more and more people using more and more substances out there, ranging from prescription drugs and pain killers to the standard illegal drugs such as cocaine and heroin to synthetic drugs and boutique chemicals (many of which are not included on the list of "drugs", but should be. Second, more and more police officers throughout the United States, and particularly in New York, are receiving special training in drug recognition. This level of training and certification, which includes a wide range of skills (including the use of the horizontal gaze nystagmus test for detecting several of the drug groupings) has long been an emphasis of the State's STOP-DWI programs. With more and more training and certif- ication, more and more impaired drivers are being detected, arrested and prosecuted. For decades, a test of saliva has long been one of the approved tests that may be administered to a suspected impaired driver. Until recently, shortcomings in the technology had rendered the saliva test as something of a non-factor in the ongoing struggle to keep drunk and impaired driv- ers off the road. However, improvements in the use of the non-intrusive "saliva swab" have made preliminary detection of drug use comparable to the long-accepted "preliminary {'roadside') breath test" -- which may be used to confirm reasonable suspicion based on standard field sobriety tests. Often drivers exhibiting signs of impairment during the field sobriety may test for no or low alcohol. The saliva swab will provide police officers with an alternative, non-intrusive method for confirming (or dismissing) whether the grounds for failing the SFSTs related to impairment by drugs. Together the use of advancements in the use of saliva as a useful test, and the increased training of police officers in drug recognition, has made it possible to apply the same type of resources in the fight against drugged driving as in the fight against the drunk driving. These minor amendments will help the law keep up with those advancements.   PRIOR LEGISLATIVE HISTORY: A.6135 of 2021-22, A.968 of 2019-20, A.2530 2017-18, A.4736 of 2015-16.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
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A04519 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4519
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 16, 2023
                                       ___________
 
        Introduced by M. of A. ZEBROWSKI, McDONOUGH -- read once and referred to
          the Committee on Transportation
 
        AN ACT to amend the vehicle and traffic law, in relation to saliva swabs
          and chemical tests in certain cases
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subdivisions 1, 2 and 3 of section 1194 of the vehicle  and
     2  traffic  law,  as added by chapter 47 of the laws of 1988, paragraph (a)
     3  of subdivision 2 as amended by chapter 196 of the laws  of  1996,  para-
     4  graphs  (b)  and  (c)  of subdivision 2 as amended by chapter 489 of the
     5  laws of 2017, clause (A) of subparagraph 1 and subparagraphs 2 and 3  of
     6  paragraph (b) and subparagraphs 1, 2, and 3 of paragraph (c) of subdivi-
     7  sion 2 as amended by chapter 27 of the laws of 2018, subparagraphs 1 and
     8  2  of  paragraph  (d)  of subdivision 2 as amended by chapter 732 of the
     9  laws of 2006 and item (iii) of clause c of subparagraph 1  of  paragraph
    10  (d)  of  subdivision 2 as amended by section 37 of part LL of chapter 56
    11  of the laws of 2010, are amended to read as follows:
    12    1.  Arrest  and  field  testing.  (a)  Arrest.    Notwithstanding  the
    13  provisions  of  section  140.10  of the criminal procedure law, a police
    14  officer may, without a warrant, arrest a person, in case of a  violation
    15  of subdivision one of section eleven hundred ninety-two of this article,
    16  if such violation is coupled with an accident or collision in which such
    17  person  is involved, which in fact has been committed, though not in the
    18  police officer's presence, when the  officer  has  reasonable  cause  to
    19  believe that the violation was committed by such person.
    20    (b)  Field  testing.  Every person operating a motor vehicle which has
    21  been involved in an accident or which is operated in violation of any of
    22  the provisions of this chapter shall, at the request of a  police  offi-
    23  cer,  submit  to  a breath test and/or saliva swab to be administered by
    24  the police officer. If either such test indicates that such operator has
    25  consumed alcohol or is under the influence of a drug or drugs, or  both,
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06906-01-3

        A. 4519                             2
 
     1  the  police  officer  may  request such operator to submit to a chemical
     2  test in the manner set forth in subdivision two of this section.
     3    2.  Chemical  tests.  (a)  When  authorized. Any person who operates a
     4  motor vehicle in this state shall be deemed to have given consent  to  a
     5  chemical  test of one or more of the following: breath, blood, urine, or
     6  saliva, for the purpose of determining the alcoholic and/or drug content
     7  of the blood provided that such test is administered by or at the direc-
     8  tion of a police officer with respect to  a  chemical  test  of  breath,
     9  urine  or  saliva  or,  with respect to a chemical test of blood, at the
    10  direction of a police officer:
    11    (1) having reasonable grounds to believe  such  person  to  have  been
    12  operating  in  violation  of  any  subdivision of section eleven hundred
    13  ninety-two of this article and within two hours after  such  person  has
    14  been  placed  under  arrest for any such violation; or having reasonable
    15  grounds to believe such person to have been operating  in  violation  of
    16  section eleven hundred ninety-two-a of this article and within two hours
    17  after the stop of such person for any such violation,
    18    (2)  within  two hours after a breath test or saliva swab, as provided
    19  in paragraph (b) of subdivision one of this  section,  indicates  [that]
    20  the  consumption  of alcohol [has been consumed] or drugs by such person
    21  and in accordance with the rules  and  regulations  established  by  the
    22  police force of which the officer is a member;
    23    (3)  for  the  purposes  of  this  paragraph,  "reasonable grounds" to
    24  believe that a person has been operating a motor  vehicle  after  having
    25  consumed  alcohol in violation of section eleven hundred ninety-two-a of
    26  this article shall be determined by  viewing  the  totality  of  circum-
    27  stances  surrounding  the  incident which, when taken together, indicate
    28  that the operator was driving in violation  of  such  subdivision.  Such
    29  circumstances  may include any visible or behavioral indication of alco-
    30  hol consumption by the operator, the  existence  of  an  open  container
    31  containing  or  having  contained an alcoholic beverage in or around the
    32  vehicle driven by the operator, or any other  evidence  surrounding  the
    33  circumstances of the incident which indicates that the operator has been
    34  operating  a  motor vehicle after having consumed alcohol at the time of
    35  the incident; or
    36    (4) notwithstanding any other provision of law  to  the  contrary,  no
    37  person  under  the  age  of  twenty-one shall be arrested for an alleged
    38  violation of  section  eleven  hundred  ninety-two-a  of  this  article.
    39  However,  a  person under the age of twenty-one for whom a chemical test
    40  is authorized pursuant to this paragraph may be temporarily detained  by
    41  the  police  solely  for the purpose of requesting or administering such
    42  chemical test whenever arrest without a  warrant  for  a  petty  offense
    43  would  be authorized in accordance with the provisions of section 140.10
    44  of the criminal procedure law or paragraph (a)  of  subdivision  one  of
    45  this section.
    46    (b)  Report  of refusal to submit to a chemical test. (1) If: (A) such
    47  person having been placed under arrest; or (B) after a breath test indi-
    48  cates the presence of alcohol in the person's system; or (C) with regard
    49  to a person under the age of twenty-one, there are reasonable grounds to
    50  believe that such person has been operating a motor vehicle after having
    51  consumed alcohol in violation of section eleven hundred ninety-two-a  of
    52  this  article;  and  having  thereafter been requested to submit to such
    53  chemical test and having been informed  that  the  person's  license  or
    54  permit  to drive and any non-resident operating privilege shall be imme-
    55  diately suspended and subsequently revoked, or, for operators under  the
    56  age  of twenty-one for whom there are reasonable grounds to believe that

        A. 4519                             3
 
     1  such operator has been operating a motor vehicle after  having  consumed
     2  alcohol  in  violation  of  section  eleven hundred ninety-two-a of this
     3  article, shall be revoked for refusal to submit to such chemical test or
     4  any  portion  thereof,  whether or not the person is found guilty of the
     5  charge for which such person is arrested or detained, refuses to  submit
     6  to  such  chemical test or any portion thereof, unless a court order has
     7  been granted pursuant to subdivision three of  this  section,  the  test
     8  shall  not  be given and a written report of such refusal shall be imme-
     9  diately made by the police officer before whom such  refusal  was  made.
    10  Such  report may be verified by having the report sworn to, or by affix-
    11  ing to such report a form notice that false statements made therein  are
    12  punishable  as  a  class A misdemeanor pursuant to section 210.45 of the
    13  penal law and such form notice together with  the  subscription  of  the
    14  deponent shall constitute a verification of the report.
    15    (2)  The  report  of  the  police  officer  shall set forth reasonable
    16  grounds to believe such arrested person or such  detained  person  under
    17  the  age  of twenty-one had been driving in violation of any subdivision
    18  of section eleven hundred ninety-two or eleven hundred  ninety-two-a  of
    19  this  article,  that  said person had refused to submit to such chemical
    20  test, and that  no  chemical  test  was  administered  pursuant  to  the
    21  requirements  of  subdivision three of this section. The report shall be
    22  presented to the court upon arraignment of an arrested person, provided,
    23  however, in the case of a person under the age of twenty-one, for whom a
    24  test was authorized pursuant to the provisions of  subparagraph  two  or
    25  three  of paragraph (a) of this subdivision, and who has not been placed
    26  under arrest for a violation of any of the provisions of section  eleven
    27  hundred  ninety-two  of  this article, such report shall be forwarded to
    28  the commissioner within forty-eight hours in a manner to  be  prescribed
    29  by  the  commissioner,  and  all  subsequent  proceedings with regard to
    30  refusal to submit to such chemical test by such person shall be  as  set
    31  forth  in  subdivision  three of section eleven hundred ninety-four-a of
    32  this article.
    33    (3) For persons placed under arrest for a violation of any subdivision
    34  of section eleven hundred ninety-two of this  article,  the  license  or
    35  permit to drive and any non-resident operating privilege shall, upon the
    36  basis  of  such  written  report,  be temporarily suspended by the court
    37  without notice pending the determination of a  hearing  as  provided  in
    38  paragraph  (c) of this subdivision. Copies of such report must be trans-
    39  mitted by the court to the commissioner and such transmittal may not  be
    40  waived  even  with  the consent of all the parties. Such report shall be
    41  forwarded to the commissioner within forty-eight hours of such  arraign-
    42  ment.
    43    (4) The court or the police officer, in the case of a person under the
    44  age  of  twenty-one alleged to be driving after having consumed alcohol,
    45  shall provide such person with a scheduled hearing date, a waiver  form,
    46  and  such other information as may be required by the commissioner. If a
    47  hearing, as provided for in paragraph (c) of this subdivision, or subdi-
    48  vision three of section eleven hundred ninety-four-a of this article, is
    49  waived by such person, the commissioner  shall  immediately  revoke  the
    50  license,  permit, or non-resident operating privilege, as of the date of
    51  receipt of such waiver in accordance with the  provisions  of  paragraph
    52  (d) of this subdivision.
    53    (c)  Hearings. Any person whose license or permit to drive or any non-
    54  resident driving privilege has been suspended pursuant to paragraph  (b)
    55  of  this subdivision is entitled to a hearing in accordance with a hear-
    56  ing schedule to be promulgated by the commissioner.  If  the  department

        A. 4519                             4
 
     1  fails  to  provide  for  such hearing fifteen days after the date of the
     2  arraignment of the arrested person, the  license,  permit  to  drive  or
     3  non-resident  operating  privilege  of  such  person shall be reinstated
     4  pending a hearing pursuant to this section. The hearing shall be limited
     5  to  the  following  issues:  (1)  did the police officer have reasonable
     6  grounds to believe that such person had been driving in violation of any
     7  subdivision of section eleven hundred ninety-two of  this  article;  (2)
     8  did the police officer make a lawful arrest of such person; (3) was such
     9  person given sufficient warning, in clear or unequivocal language, prior
    10  to such refusal that such refusal to submit to such chemical test or any
    11  portion thereof, would result in the immediate suspension and subsequent
    12  revocation  of  such  person's license or operating privilege whether or
    13  not such person is found guilty of the charge for which the  arrest  was
    14  made;  and (4) did such person refuse to submit to such chemical test or
    15  any portion thereof. If, after such hearing, the hearing officer, acting
    16  on behalf of the commissioner, finds on any one of said  issues  in  the
    17  negative, the hearing officer shall immediately terminate any suspension
    18  arising  from such refusal. If, after such hearing, the hearing officer,
    19  acting on behalf of the commissioner finds all  of  the  issues  in  the
    20  affirmative, such officer shall immediately revoke the license or permit
    21  to  drive or any non-resident operating privilege in accordance with the
    22  provisions of paragraph (d) of this subdivision. A person who has had  a
    23  license or permit to drive or non-resident operating privilege suspended
    24  or  revoked  pursuant to this subdivision may appeal the findings of the
    25  hearing officer in accordance with the provisions of article three-A  of
    26  this  chapter.  Any  person  may waive the right to a hearing under this
    27  section. Failure by such person to  appear  for  the  scheduled  hearing
    28  shall  constitute a waiver of such hearing, provided, however, that such
    29  person may petition the commissioner for a new hearing  which  shall  be
    30  held as soon as practicable.
    31    (d)  Sanctions. (1) Revocations. a. Any license which has been revoked
    32  pursuant to paragraph (c) of this subdivision shall not be restored  for
    33  at  least  one year after such revocation, nor thereafter, except in the
    34  discretion of the  commissioner.  However,  no  such  license  shall  be
    35  restored  for at least eighteen months after such revocation, nor there-
    36  after except in the discretion of the commissioner, in  any  case  where
    37  the  person  has had a prior revocation resulting from refusal to submit
    38  to a chemical test, or has been convicted of or found to be in violation
    39  of any subdivision of section eleven hundred ninety-two or section elev-
    40  en hundred ninety-two-a of this article not  arising  out  of  the  same
    41  incident,  within  the five years immediately preceding the date of such
    42  revocation; provided, however, a prior finding that a person  under  the
    43  age  of  twenty-one has refused to submit to a chemical test pursuant to
    44  subdivision three of section eleven hundred ninety-four-a of this  arti-
    45  cle  shall have the same effect as a prior finding of a refusal pursuant
    46  to this subdivision solely for the purpose of determining the length  of
    47  any  license  suspension  or revocation required to be imposed under any
    48  provision of this article,  provided  that  the  subsequent  offense  or
    49  refusal  is  committed  or  occurred  prior  to  the  expiration  of the
    50  retention period for such prior refusal as set forth in paragraph (k) of
    51  subdivision one of section two hundred one of this chapter.
    52    b. Any license which has been revoked pursuant  to  paragraph  (c)  of
    53  this  subdivision  or  pursuant  to  subdivision three of section eleven
    54  hundred ninety-four-a of this article, where the holder  was  under  the
    55  age  of  twenty-one  years  at  the  time  of such refusal, shall not be
    56  restored for at least one year, nor thereafter, except in the discretion

        A. 4519                             5
 
     1  of the commissioner. Where such person under the age of twenty-one years
     2  has a  prior  finding,  conviction  or  youthful  offender  adjudication
     3  resulting  from  a  violation  of  section  eleven hundred ninety-two or
     4  section  eleven  hundred  ninety-two-a of this article, not arising from
     5  the same incident, such license shall not be restored for at  least  one
     6  year or until such person reaches the age of twenty-one years, whichever
     7  is  the greater period of time, nor thereafter, except in the discretion
     8  of the commissioner.
     9    c. Any commercial driver's license which has been revoked pursuant  to
    10  paragraph  (c)  of  this  subdivision based upon a finding of refusal to
    11  submit to a chemical test, where such finding occurs within  or  outside
    12  of  this state, shall not be restored for at least eighteen months after
    13  such revocation, nor thereafter, except in the discretion of the commis-
    14  sioner, but shall not be restored for at least three  years  after  such
    15  revocation,  nor thereafter, except in the discretion of the commission-
    16  er, if the holder of such license was operating a commercial motor vehi-
    17  cle transporting hazardous materials at the time of such refusal. Howev-
    18  er, such person shall  be  permanently  disqualified  from  operating  a
    19  commercial  motor vehicle in any case where the holder has a prior find-
    20  ing of refusal to submit to a chemical test pursuant to this section  or
    21  has  a  prior conviction of any of the following offenses: any violation
    22  of section eleven hundred ninety-two of this article; any  violation  of
    23  subdivision  one or two of section six hundred of this chapter; or has a
    24  prior conviction of any felony involving the  use  of  a  motor  vehicle
    25  pursuant  to  paragraph  (a)  of subdivision one of section five hundred
    26  ten-a of this chapter. Provided that the  commissioner  may  waive  such
    27  permanent  revocation  after a period of ten years has expired from such
    28  revocation provided:
    29    (i) that during such ten year period such person has not been found to
    30  have refused a chemical test pursuant to this section and has  not  been
    31  convicted of any one of the following offenses: any violation of section
    32  eleven hundred ninety-two of this article; refusal to submit to a chemi-
    33  cal  test  pursuant to this section; any violation of subdivision one or
    34  two of section six hundred of this chapter; or has a prior conviction of
    35  any felony involving the use of a motor vehicle  pursuant  to  paragraph
    36  (a) of subdivision one of section five hundred ten-a of this chapter;
    37    (ii) that such person provides acceptable documentation to the commis-
    38  sioner  that  such person is not in need of alcohol or drug treatment or
    39  has satisfactorily completed a prescribed course of such treatment; and
    40    (iii) after such documentation is accepted, that such person is grant-
    41  ed a certificate of relief from disabilities or a  certificate  of  good
    42  conduct  pursuant  to  article twenty-three of the correction law by the
    43  court in which such person was last penalized.
    44    d. Upon a third finding of refusal and/or conviction  of  any  of  the
    45  offenses  which  require a permanent commercial driver's license revoca-
    46  tion, such permanent revocation may not be waived  by  the  commissioner
    47  under any circumstances.
    48    (2)  Civil  penalties.  Except as otherwise provided, any person whose
    49  license, permit to drive, or any  non-resident  operating  privilege  is
    50  revoked  pursuant to the provisions of this section shall also be liable
    51  for a civil penalty in the amount of five hundred dollars except that if
    52  such revocation is a second or subsequent revocation  pursuant  to  this
    53  section  issued  within  a  five  year  period,  or such person has been
    54  convicted of a violation of any subdivision of  section  eleven  hundred
    55  ninety-two of this article within the past five years not arising out of
    56  the  same  incident,  the  civil penalty shall be in the amount of seven

        A. 4519                             6

     1  hundred fifty dollars. Any person whose license is revoked  pursuant  to
     2  the provisions of this section based upon a finding of refusal to submit
     3  to a chemical test while operating a commercial motor vehicle shall also
     4  be  liable for a civil penalty of five hundred fifty dollars except that
     5  if such person has previously been found to have refused a chemical test
     6  pursuant to this section while operating a commercial motor  vehicle  or
     7  has  a prior conviction of any of the following offenses while operating
     8  a commercial motor vehicle: any  violation  of  section  eleven  hundred
     9  ninety-two  of this article; any violation of subdivision two of section
    10  six hundred of this chapter; or has a prior  conviction  of  any  felony
    11  involving  the  use  of a commercial motor vehicle pursuant to paragraph
    12  (a) of subdivision one of section five hundred ten-a  of  this  chapter,
    13  then  the  civil  penalty  shall  be seven hundred fifty dollars. No new
    14  driver's license or permit shall be issued,  or  non-resident  operating
    15  privilege restored to such person unless such penalty has been paid. All
    16  penalties collected by the department pursuant to the provisions of this
    17  section  shall  be  the property of the state and shall be paid into the
    18  general fund of the state treasury.
    19    (3) Effect of rehabilitation program. No period of revocation  arising
    20  out  of this section may be set aside by the commissioner for the reason
    21  that such person was a participant in the  alcohol  and  drug  rehabili-
    22  tation  program  set  forth in section eleven hundred ninety-six of this
    23  article.
    24    (e) Regulations. The commissioner  shall  promulgate  such  rules  and
    25  regulations as may be necessary to effectuate the provisions of subdivi-
    26  sions one and two of this section.
    27    (f) Evidence. Evidence of a refusal to submit to such chemical test or
    28  any  portion  thereof  shall  be  admissible in any trial, proceeding or
    29  hearing based upon a violation  of  the  provisions  of  section  eleven
    30  hundred  ninety-two  of  this  article  but only upon a showing that the
    31  person was given sufficient warning, in clear and unequivocal  language,
    32  of  the  effect  of  such  refusal  and that the person persisted in the
    33  refusal.
    34    (g) Results. Upon the request  of  the  person  who  was  tested,  the
    35  results of such test shall be made available to such person.
    36    3.  Compulsory  chemical  tests.  (a)  Court  ordered  chemical tests.
    37  Notwithstanding the provisions of subdivision two of  this  section,  no
    38  person  who  operates a motor vehicle in this state may refuse to submit
    39  to a chemical test of one or more of the following: breath, blood, urine
    40  or saliva, for the purpose of  determining  the  alcoholic  and/or  drug
    41  content  of the blood when a court order for such chemical test has been
    42  issued in accordance with the provisions of this subdivision.
    43    (b) When authorized. Upon refusal by any person to submit to a  chemi-
    44  cal  test  or any portion thereof as described above, the test shall not
    45  be given unless a police officer or a district attorney, as  defined  in
    46  subdivision  thirty-two  of  section 1.20 of the criminal procedure law,
    47  requests and obtains a court order to compel a person  to  submit  to  a
    48  chemical test to determine the alcoholic or drug content of the person's
    49  blood upon a finding of reasonable cause to believe that:
    50    (1)  such person was the operator of a motor vehicle and in the course
    51  of such operation a  person  other  than  the  operator  was  killed  or
    52  suffered  serious  physical  injury  as  defined in section 10.00 of the
    53  penal law; and
    54    (2) a. either such person operated the vehicle  in  violation  of  any
    55  subdivision of section eleven hundred ninety-two of this article, or

        A. 4519                             7
 
     1    b.  a  breath  test or saliva swab administered by a police officer in
     2  accordance with paragraph (b) of subdivision one of this  section  indi-
     3  cates  [that] the consumption of alcohol [has been consumed] or drugs by
     4  such person; or a police officer trained and certified as a drug  recog-
     5  nition expert or a police officer who has completed training pursuant to
     6  the  federal  advanced roadside impaired driving enforcement program has
     7  reason to believe that such person is under the influence  of  drugs  or
     8  the combined influence of drugs and alcohol; and
     9    (3) such person has been placed under lawful arrest; and
    10    (4)  such  person  has  refused  to  submit  to a chemical test or any
    11  portion thereof, requested in accordance with the  provisions  of  para-
    12  graph  (a)  of  subdivision  two  of  this  section or is unable to give
    13  consent to such a test.
    14    (c) Reasonable cause; definition. For the purpose of this  subdivision
    15  "reasonable  cause"  shall  be  determined  by  viewing  the totality of
    16  circumstances surrounding the incident which, when taken together, indi-
    17  cate that the operator  was  driving  in  violation  of  section  eleven
    18  hundred  ninety-two of this article. Such circumstances may include, but
    19  are not limited to: evidence that the operator  was  operating  a  motor
    20  vehicle  in  violation  of  any  provision  of this article or any other
    21  moving violation at the time of the incident; any visible indication  of
    22  alcohol or drug consumption or impairment by the operator; the existence
    23  of drugs or drug paraphernalia; or an open container containing an alco-
    24  holic  beverage  in  or  around  the vehicle driven by the operator; any
    25  other evidence surrounding the circumstances of the incident which indi-
    26  cates that the  operator  has  been  operating  a  motor  vehicle  while
    27  impaired  by  the  consumption of alcohol or drugs or intoxicated at the
    28  time of the incident.
    29    (d) Court order; procedure. (1) An application for a  court  order  to
    30  compel submission to a chemical test or any portion thereof, may be made
    31  to any supreme court justice, county court judge or district court judge
    32  in the judicial district in which the incident occurred, or if the inci-
    33  dent  occurred  in the city of New York before any supreme court justice
    34  or judge of the criminal court of the city of New York. Such application
    35  may be communicated by telephone, radio or  other  means  of  electronic
    36  communication, or in person.
    37    (2)  The  applicant  must provide identification by name and title and
    38  must state the purpose of the communication. Upon being advised that  an
    39  application for a court order to compel submission to a chemical test is
    40  being made, the court shall place under oath the applicant and any other
    41  person  providing  information in support of the application as provided
    42  in subparagraph three of this paragraph. After being sworn the applicant
    43  must state that the person from whom the chemical test was requested was
    44  the operator of a motor vehicle and in the course of  such  operation  a
    45  person,  other  than  the operator, has been killed or seriously injured
    46  and, based upon the totality of circumstances, there is reasonable cause
    47  to believe that such person was operating a motor vehicle  in  violation
    48  of  any subdivision of section eleven hundred ninety-two of this article
    49  and, after being placed under  lawful  arrest  such  person  refused  to
    50  submit to a chemical test or any portion thereof, in accordance with the
    51  provisions  of  this section or is unable to give consent to such a test
    52  or any portion thereof. The applicant must make specific allegations  of
    53  fact  to  support  such statement. Any other person properly identified,
    54  may present sworn allegations of fact  in  support  of  the  applicant's
    55  statement.

        A. 4519                             8

     1    (3)  Upon  being advised that an oral application for a court order to
     2  compel a person to submit to a chemical test is being made, a  judge  or
     3  justice  shall  place  under  oath  the  applicant  and any other person
     4  providing information in support of the application. Such oath or  oaths
     5  and all of the remaining communication must be recorded, either by means
     6  of  a  voice recording device or verbatim stenographic or verbatim long-
     7  hand notes. If a voice recording device is used or a stenographic record
     8  made, the judge must have the record transcribed, certify to the accura-
     9  cy of the transcription and file the original record  and  transcription
    10  with  the  court  within  seventy-two hours of the issuance of the court
    11  order. If the longhand notes are taken, the judge shall subscribe a copy
    12  and file it with the court within twenty-four hours of the  issuance  of
    13  the order.
    14    (4)  If  the court is satisfied that the requirements for the issuance
    15  of a court order pursuant to the provisions of  paragraph  (b)  of  this
    16  subdivision  have  been  met,  it may grant the application and issue an
    17  order requiring the accused to submit to a chemical  test  to  determine
    18  the  alcoholic  and/or  drug content of his blood and ordering the with-
    19  drawal of a blood sample in accordance with the provisions of  paragraph
    20  (a)  of subdivision four of this section. When a judge or justice deter-
    21  mines to issue an order to compel submission to a chemical test based on
    22  an oral application, the applicant therefor shall prepare the  order  in
    23  accordance  with the instructions of the judge or justice.  In all cases
    24  the order shall include the name of the issuing judge  or  justice,  the
    25  name  of the applicant, and the date and time it was issued.  It must be
    26  signed by the judge or justice if issued in person, or by the  applicant
    27  if issued orally.
    28    (5) Any false statement by an applicant or any other person in support
    29  of  an  application  for  a court order shall subject such person to the
    30  offenses for perjury set forth in article two hundred ten of  the  penal
    31  law.
    32    (6)  The  chief administrator of the courts shall establish a schedule
    33  to provide that a sufficient number of judges or justices will be avail-
    34  able in each judicial district  to  hear  oral  applications  for  court
    35  orders as permitted by this section.
    36    (e) Administration of compulsory chemical test. An order issued pursu-
    37  ant  to the provisions of this subdivision shall require that a chemical
    38  test to determine the alcoholic and/or drug content  of  the  operator's
    39  blood  must  be  administered. The provisions of paragraphs (a), (b) and
    40  (c) of subdivision four of this section shall be applicable to any chem-
    41  ical test administered pursuant to this section.
    42    § 2. This act shall take effect on the first of November next succeed-
    43  ing the date on which it shall have become a law.
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