NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8128
SPONSOR: Brown K TITLE OF BILL:
An act to amend the vehicle and traffic law and the navigation law, in
relation to implementing oral fluid tests
PURPOSE:
The purpose of this bill is to require the implementation and use of
cannabis field sobriety oral fluids tests.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of this bill would amend subdivision 1 of section 1194 of
the Vehicle and Traffic Law by adding a new paragraph.
Section 2 of this bill would amend subparagraph 2 of paragraph (a) of
subdivision 2 of section 1194 of the Vehicle and Traffic Law.
Section 3 of this bill would amend subparagraph 1 of paragraph (b) of
subdivision 2 of section 1194 of the Vehicle and Traffic Law.
Section 4 of this bill would amend subparagraph 2 of paragraph (b) of
subdivision of section 1194 of the Vehicle and Traffic Law.
Section 5 of this bill would amend the Vehicle and Traffic Law by
adding a new section 1195-a.
Section 6 of this bill would amend subdivision 6 of section 49-a of
the Navigation Law by adding a new paragraph (c).
Section 7 of this bill would amend paragraphs (a) and (b) of subdivi-
sion 7 of section 49-a of the Navigation Law.
Section 8 of this bill would amend subparagraph 2 of paragraph (b) of
subdivision 8 of section 49-a of the Navigation Law.
Section 9 of this bill provides that the effective date This act shall
take effect on the ninetieth day after it shall have become a law;
provided, however, that section eight of this act shall take effect on
the same date and in the same manner as section 3 of chapter 688 of the
laws of 2022, takes effect.
JUSTIFICATION:
The rising number of roadway fatalities was described by U.S. Transpor-
tation Secretary Pete Buttigieg as a national crisis on March 2, 2022.
The National Highway Traffic Safety Administration (NHTSA) reported in
June of 2021 that nationally 56% of drivers involved in serious injury
and fatal crashes tested positive for at least one drug. In New York 40%
of fatal and injury crashes in 2020 were drug-related. With the legali-
zation of adult use cannabis and the continued problems associated with
"synthetic drugs", New York's laws regarding driving under the influence
of drugs need to be updated to ensure public safety on the roads. New
York is only one of a handful of states that requires a drug to be list-
ed in statute to trigger a drugged driving violation. The list does not
keep pace with the proliferation of rapidly changing synthetic drugs.
The result is impaired drivers are allowed to endanger themselves and
others with impunity.
This legislation also updates New York law regarding field testing for
drugged driving to include the use of oral/bodily fluids. This testing
screens for the recent use of multiple types of drugs. Scientifically
establishing recency will assist law enforcement to properly identify
actually impaired drivers. Oral fluid testing has been the subject of
dozens of studies and pilot programs over more than a decade. NHTSA
published an evaluation of On-Site Oral Fluid Drug Screening Technology
in April 2021 and identified methods that meet established accuracy and
sensitivity standards. Non-invasive oral fluid testing will reduce the
number of dangerously impaired drivers on New York's roadways. Vehicle
and Traffic Law section 1194(1)(b) requires drivers to submit to a field
test at the request of a police officer. Section 1800(a) makes it a
traffic infraction to violate any of the provisions of the Vehicle and
Traffic Law. Recent court decisions have invalidated charging a traffic
infraction for refusing to submit to a field test. There is no longer a
consequence for violating this mandatory public safety provision. This
bill provides that refusing to submit to a field test is a traffic
infraction.
Drug recognition evaluations were developed fifty years ago and vali-
dated in the 1980s. Certified Drug Recognition Experts (DREs) determine
whether a driver's impairment is due to drug use rather than neurologi-
cal conditions, illness, or disease. A DRE evaluation helps to insure
that drivers who are actually impaired by cannabis and drugs are charged
as New York State law requires. The mere presence of a drug in a driv-
er's system is not sufficient: A driver who refuses to submit to a drug
recognition evaluation, a chemical test (or a field test) hampers the
investigation that will either support an arrest or exonerate the driv-
er. This bill provides the same license revocation for refusing a DRE
exam that already exists for refusing a chemical test.
It is well-settled that states have a paramount interest in preserving
public highway safety. Administrative license sanctions encouraging
testing are commonplace and appropriate tools in New York's efforts to
prevent impaired driving and save lives. This legislation corrects
disparate court decisions that provide different standards for consent-
ing to a chemical test and refusing. The public safety policy of encour-
aging testing is not served by a time limit for refusals. A refusal at
any time after arrest will result in a license revocation and shall be
admissible in any trial, proceeding or hearing.
Additionally, the bill expands the circumstances where a court can order
a compulsory chemical test in a suspected drunk or drugged driving
crash. Currently, it can only be done in crashes where there is death or
serious physical injury. The new statute includes language from the
Leaving the Scene of an Incident statute and expands compulsory tests
supported by probable cause to any crash with personal injury and/or
where the driver has a history of convictions for impaired driving
offenses. Finally, it updates the law regarding suspension of licenses
pending prosecution by adding drugged drivers with charges supported by
testing or admissions. The provision reflects the bill's updates to the
definitions of driving while under the influence of drugs. This is done
to keep dangerous drivers off the road pending prosecution.
LEGISLATIVE HISTORY:
2021-22: S.9224 (Mannion) - Referred to Transportation.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law. Effective immediately, the addition, amendment and/or
repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such effective date.
STATE OF NEW YORK
________________________________________________________________________
8128
2023-2024 Regular Sessions
IN ASSEMBLY
October 13, 2023
___________
Introduced by M. of A. K. BROWN -- read once and referred to the Commit-
tee on Transportation
AN ACT to amend the vehicle and traffic law and the navigation law, in
relation to implementing oral fluid tests
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 1194 of the vehicle and traffic
2 law is amended by adding a new paragraph (c) to read as follows:
3 (c) Oral fluid test. (1) Definition. For the purposes of this article,
4 "oral fluid test" means a standardized preliminary saliva analysis test
5 validated by the National Highway Traffic Safety Administration for the
6 detection of cannabis. A field sobriety test is considered an oral fluid
7 test if it is administered in substantial compliance with the standards
8 prescribed by the National Highway Traffic Safety Administration.
9 (2) Oral fluid test. Every person operating a motor vehicle which has
10 been involved in an accident or which is operated in violation of any of
11 the provisions of this chapter shall, at the request of a police offi-
12 cer, submit to an oral fluid test to be administered by the police offi-
13 cer. If such test indicates the presence of cannabis in the person's
14 saliva, the police officer may request such operator to submit to a
15 chemical test in the manner set forth in subdivision two of this
16 section.
17 § 2. Subparagraph 2 of paragraph (a) of subdivision 2 of section 1194
18 of the vehicle and traffic law, as amended by chapter 196 of the laws of
19 1996, is amended to read as follows:
20 (2) within two hours after a breath test, as provided in paragraph (b)
21 of subdivision one of this section, and/or an oral fluid test, as
22 provided in paragraph (c) of subdivision one of this section, indicates
23 that alcohol and/or cannabis has been consumed by such person and in
24 accordance with the rules and regulations established by the police
25 force of which the officer is a member;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05316-03-3
A. 8128 2
1 § 3. Subparagraph 1 of paragraph (b) of subdivision 2 of section 1194
2 of the vehicle and traffic law, as amended by chapter 489 of the laws of
3 2017 and clause (A) as amended by chapter 27 of the laws of 2018, is
4 amended to read as follows:
5 (1) If: (A) such person having been placed under arrest; or (B) after
6 a breath test indicates the presence of alcohol in the person's system;
7 or (C) after an oral fluid test indicates the presence of cannabis in
8 the person's saliva; or (D) with regard to a person under the age of
9 twenty-one, there are reasonable grounds to believe that such person has
10 been operating a motor vehicle after having consumed alcohol in
11 violation of section eleven hundred ninety-two-a of this article; and
12 having thereafter been requested to submit to such chemical test and
13 having been informed that the person's license or permit to drive and
14 any non-resident operating privilege shall be immediately suspended and
15 subsequently revoked, or, for operators under the age of twenty-one for
16 whom there are reasonable grounds to believe that such operator has been
17 operating a motor vehicle after having consumed alcohol in violation of
18 section eleven hundred ninety-two-a of this article, shall be revoked
19 for refusal to submit to such chemical test or any portion thereof,
20 whether or not the person is found guilty of the charge for which such
21 person is arrested or detained, refuses to submit to such chemical test
22 or any portion thereof, unless a court order has been granted pursuant
23 to subdivision three of this section, the test shall not be given and a
24 written report of such refusal shall be immediately made by the police
25 officer before whom such refusal was made. Such report may be verified
26 by having the report sworn to, or by affixing to such report a form
27 notice that false statements made therein are punishable as a class A
28 misdemeanor pursuant to section 210.45 of the penal law and such form
29 notice together with the subscription of the deponent shall constitute a
30 verification of the report.
31 § 4. Subparagraph 2 of paragraph (b) of subdivision 3 of section 1194
32 of the vehicle and traffic law, as added by chapter 47 of the laws of
33 1988, is amended to read as follows:
34 (2) a. either such person operated the vehicle in violation of any
35 subdivision of section eleven hundred ninety-two of this article, or
36 b. a breath test administered by a police officer in accordance with
37 paragraph (b) of subdivision one of this section indicates that alcohol
38 has been consumed by such person, or
39 c. an oral fluid test administered by a police officer in accordance
40 with paragraph (c) of subdivision one of this section indicates the
41 presence of cannabis in the person's saliva; and
42 § 5. The vehicle and traffic law is amended by adding a new section
43 1195-a to read as follows:
44 § 1195-a. Oral fluid test evidence. 1. Admissibility. Upon the trial
45 of any action or proceeding arising out of actions alleged to have been
46 committed by any person arrested for a violation of any subdivision of
47 section eleven hundred ninety-two of this article, the court shall admit
48 the results of an oral fluid test pursuant to the provisions of section
49 eleven hundred ninety-four of this article.
50 2. Probative value. The following effect shall be given to evidence of
51 cannabis consumption, as determined by such tests, of a person arrested
52 for a violation of section eleven hundred ninety-two of this article:
53 (a) To assist the court or hearing officer in determining a challenge
54 to the validity of an arrest. This subdivision does not limit the intro-
55 duction of other competent evidence offered to establish the validity of
56 an arrest.
A. 8128 3
1 (b) As evidence of the presence or nonpresence of cannabis in the
2 defendant's saliva if offered by the defendant to rebut testimony elic-
3 ited on cross-examination of a defense witness that an oral fluid test
4 of the defendant's saliva showed the presence of cannabis that was not
5 found to be present when a chemical test of the defendant's blood or
6 urine was administered under section eleven hundred ninety-four of this
7 article.
8 (c) As evidence of the presence or nonpresence of cannabis in the
9 defendant's saliva if offered by the prosecution to rebut testimony
10 elicited on cross-examination of a prosecution witness that an oral
11 fluid test of the defendant's saliva showed no presence of cannabis that
12 was found to be present when a chemical test of the defendant's blood or
13 urine was administered under section eleven hundred ninety-four of this
14 article.
15 3. Suppression. A defendant who has been compelled to submit to an
16 oral fluid test pursuant to the provisions of paragraph (c) of subdivi-
17 sion one of section eleven hundred ninety-four of this article may move
18 for the suppression of such evidence in accordance with article seven
19 hundred ten of the criminal procedure law on the grounds that the order
20 was obtained and the test administered in violation of the provisions of
21 such subdivision or any other applicable law.
22 § 6. Subdivision 6 of section 49-a of the navigation law is amended by
23 adding a new paragraph (c) to read as follows:
24 (c) Oral fluid test. (1) Definition. For the purposes of this article,
25 "oral fluid test" means a standardized preliminary saliva analysis test
26 validated by the National Highway Traffic Safety Administration for the
27 detection of cannabis. A field sobriety test is considered an oral fluid
28 test if it is administered in substantial compliance with the standards
29 prescribed by the National Highway Traffic Safety Administration.
30 (2) Oral fluid test. Every person operating a vessel on the waters of
31 the state which has been involved in an accident or which is operated in
32 violation of any of the provisions of this section shall, at the request
33 of a police officer, submit to an oral fluid test to be administered by
34 the police officer. If such test indicates the presence of cannabis in
35 the person's saliva, the police officer may request such operator to
36 submit to a chemical test in the manner set forth in subdivision seven
37 of this section.
38 § 7. Paragraph (a) of subdivision 7 of section 49-a of the navigation
39 law, as amended by chapter 688 of the laws of 2022, is amended to read
40 as follows:
41 (a) Any person who operates a vessel on the waters of the state shall
42 be requested to consent to a chemical test of one or more of the follow-
43 ing: breath, blood, urine, or saliva for the purpose of determining the
44 alcoholic or drug content of [his] the person's blood, provided that
45 such test is administered at the direction of a police officer: (1)
46 having reasonable cause to believe such person to have been operating in
47 violation of this subdivision or paragraph (a), (b), (c), (d), (e) or
48 (e-1) of subdivision two of this section and within two hours after such
49 person has been placed under arrest for any such violation or (2) within
50 two hours after a breath test as provided in paragraph (b) of subdivi-
51 sion six of this section indicates that alcohol has been consumed by
52 such person or (3) within two hours after an oral fluid test as provided
53 in paragraph (c) of subdivision six of this section indicates the pres-
54 ence of cannabis in the person's saliva and in accordance with the rules
55 and regulations established by the police force of which the officer is
56 a member.
A. 8128 4
1 § 8. Subparagraph 2 of paragraph (b) of subdivision 8 of section 49-a
2 of the navigation law, as added by chapter 805 of the laws of 1992, is
3 amended to read as follows:
4 (2) (i) either such person operated the vessel in violation of any
5 paragraph of subdivision two of this section, or
6 (ii) a breath test administered by a police officer in accordance with
7 subdivision six of this section indicates that alcohol has been consumed
8 by such person, or
9 (iii) an oral fluid test administered by a police officer in accord-
10 ance with subdivision six of this section indicates the presence of
11 cannabis in the person's saliva; and
12 § 9. This act shall take effect on the ninetieth day after it shall
13 have become a law. Effective immediately, the addition, amendment and/or
14 repeal of any rule or regulation necessary for the implementation of
15 this act on its effective date are authorized to be made and completed
16 on or before such effective date.
