Establishes procedure for the suspension and revocation of license to carry and possess a firearm if a person carries loaded firearm on person in a public place while under the influence of alcohol or drugs, or if a person who is so charged refuses to submit to a chemical test to determine the alcohol or drug levels in blood; requires person to successfully complete an alcohol and drug rehabilitation program as a condition of the suspension.
STATE OF NEW YORK
________________________________________________________________________
4058
2015-2016 Regular Sessions
IN SENATE
February 26, 2015
___________
Introduced by Sen. SAMPSON -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the executive law, in relation to the
possession of a firearm while under the influence of alcohol or drugs
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. The legislature hereby finds and
2 declares that the serious and dangerous consequences which may result
3 when persons otherwise lawfully in possession of a firearm are under the
4 influence of alcohol or a controlled substance demand immediate and
5 forthwith state action. There is no compelling reason to permit such a
6 person to retain the privilege to carry and possess a firearm, knowing
7 full well the dire consequences which may occur when alcohol or drugs
8 and firearms are combined. Therefore, in enacting the provisions of
9 this act, the state takes the extraordinary step of suspending the
10 license to carry and possess a firearm of any person found to be under
11 the influence of alcohol or a controlled substance while actually carry-
12 ing a loaded firearm on his or her person in a public place, or who if
13 charged with such activity refuses to submit to a chemical test to
14 determine the alcohol or drug content of his or her blood.
15 § 2. Subdivision 1 of section 400.00 of the penal law, as amended by
16 chapter 1 of the laws of 2013, is amended to read as follows:
17 1. Eligibility. No license shall be issued or renewed pursuant to
18 this section except by the licensing officer, and then only after inves-
19 tigation and finding that all statements in a proper application for a
20 license are true. No license shall be issued or renewed except for an
21 applicant (a) twenty-one years of age or older, provided, however, that
22 where such applicant has been honorably discharged from the United
23 States army, navy, marine corps, air force or coast guard, or the
24 national guard of the state of New York, no such age restriction shall
25 apply; (b) of good moral character; (c) who has not been convicted
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09177-01-5
S. 4058 2
1 anywhere of a felony or a serious offense; (d) who is not a fugitive
2 from justice; (e) who is not an unlawful user of or addicted to any
3 controlled substance as defined in section 21 U.S.C. 802; (f) who being
4 an alien (i) is not illegally or unlawfully in the United States or (ii)
5 has not been admitted to the United States under a nonimmigrant visa
6 subject to the exception in 18 U.S.C. 922(y)(2); (g) who has not been
7 discharged from the Armed Forces under dishonorable conditions; (h) who,
8 having been a citizen of the United States, has not renounced his or her
9 citizenship; (i) who has stated whether he or she has ever suffered any
10 mental illness; (j) who has not been involuntarily committed to a facil-
11 ity under the jurisdiction of an office of the department of mental
12 hygiene pursuant to article nine or fifteen of the mental hygiene law,
13 article seven hundred thirty or section 330.20 of the criminal procedure
14 law, section four hundred two or five hundred eight of the correction
15 law, section 322.2 or 353.4 of the family court act, or has not been
16 civilly confined in a secure treatment facility pursuant to article ten
17 of the mental hygiene law; (k) who has not had a license revoked or who
18 is not under a suspension or ineligibility order issued pursuant to the
19 provisions of subdivision eleven-a of this section, section 530.14 of
20 the criminal procedure law or section eight hundred forty-two-a of the
21 family court act; (l) in the county of Westchester, who has successfully
22 completed a firearms safety course and test as evidenced by a certif-
23 icate of completion issued in his or her name and endorsed and affirmed
24 under the penalties of perjury by a duly authorized instructor, except
25 that: (i) persons who are honorably discharged from the United States
26 army, navy, marine corps or coast guard, or of the national guard of the
27 state of New York, and produce evidence of official qualification in
28 firearms during the term of service are not required to have completed
29 those hours of a firearms safety course pertaining to the safe use,
30 carrying, possession, maintenance and storage of a firearm; and (ii)
31 persons who were licensed to possess a pistol or revolver prior to the
32 effective date of this paragraph are not required to have completed a
33 firearms safety course and test; (m) who has not had a guardian
34 appointed for him or her pursuant to any provision of state law, based
35 on a determination that as a result of marked subnormal intelligence,
36 mental illness, incapacity, condition or disease, he or she lacks the
37 mental capacity to contract or manage his or her own affairs; and (n)
38 concerning whom no good cause exists for the denial of the license. No
39 person shall engage in the business of gunsmith or dealer in firearms
40 unless licensed pursuant to this section. An applicant to engage in such
41 business shall also be a citizen of the United States, more than twen-
42 ty-one years of age and maintain a place of business in the city or
43 county where the license is issued. For such business, if the applicant
44 is a firm or partnership, each member thereof shall comply with all of
45 the requirements set forth in this subdivision and if the applicant is a
46 corporation, each officer thereof shall so comply.
47 § 3. Subdivision 11 of section 400.00 of the penal law, as amended by
48 chapter 1 of the laws of 2013, is amended to read as follows:
49 11. License: revocation and suspension. (a) The conviction of a
50 licensee anywhere of a felony or serious offense or a licensee at any
51 time becoming ineligible to obtain a license under this section shall
52 operate as a revocation of the license. A license may be revoked or
53 suspended as provided for in section 530.14 of the criminal procedure
54 law or section eight hundred forty-two-a of the family court act. Except
55 for a license issued pursuant to section 400.01 of this article, a
56 license may be revoked and cancelled at any time in the city of New
S. 4058 3
1 York, and in the counties of Nassau and Suffolk, by the licensing offi-
2 cer, and elsewhere than in the city of New York by any judge or justice
3 of a court of record; a license issued pursuant to section 400.01 of
4 this article may be revoked and cancelled at any time by the licensing
5 officer or any judge or justice of a court of record. The official
6 revoking a license shall give written notice thereof without unnecessary
7 delay to the executive department, division of state police, Albany, and
8 shall also notify immediately the duly constituted police authorities of
9 the locality. For purposes of this subdivision, the term "serious
10 offense" shall include, but not be limited to, a second violation of
11 subdivision eleven-a of this section within ten years of a prior
12 violation of such subdivision.
13 (b) Whenever the director of community services or his or her designee
14 makes a report pursuant to section 9.46 of the mental hygiene law, the
15 division of criminal justice services shall convey such information,
16 whenever it determines that the person named in the report possesses a
17 license issued pursuant to this section, to the appropriate licensing
18 official, who shall issue an order suspending or revoking such license.
19 (c) In any instance in which a person's license is suspended or
20 revoked under paragraph (a) or (b) of this subdivision, such person
21 shall surrender such license to the appropriate licensing official and
22 any and all firearms, rifles, or shotguns owned or possessed by such
23 person shall be surrendered to an appropriate law enforcement agency as
24 provided in subparagraph (f) of paragraph one of subdivision a of
25 section 265.20 of this chapter. In the event such license, firearm,
26 shotgun, or rifle is not surrendered, such items shall be removed and
27 declared a nuisance and any police officer or peace officer acting
28 pursuant to his or her special duties is authorized to remove any and
29 all such weapons.
30 § 4. Section 400.00 of the penal law is amended by adding a new subdi-
31 vision 11-a to read as follows:
32 11-a. License; suspension for possession while under the influence of
33 alcohol or a controlled substance. (a) No licensee shall possess any
34 loaded firearm, as defined in subdivision fifteen of section 265.00 of
35 this chapter, on his or her person in a public place while such licensee
36 is either under the influence of alcohol or under the influence of a
37 controlled substance, as defined in sections thirty-three hundred two
38 and thirty-three hundred six of the public health law. For purposes of
39 this subdivision, a person is considered to be under the influence of
40 alcohol or under the influence of a controlled substance where such
41 person has voluntarily consumed alcohol or voluntarily used one or more
42 controlled substances, or both, to the extent that his or her ability to
43 safely handle or use a loaded firearm has been significantly diminished.
44 For purposes of this subdivision, "public place" shall have the same
45 meaning as in subdivision one of section 240.00 of this chapter,
46 provided however, that for purposes of this subdivision, "public place"
47 shall also include the interior of a motor vehicle. As used in this
48 subdivision, "on his or her person" shall have its ordinary meaning,
49 provided, however, that for purposes of this subdivision, a person shall
50 also be deemed to possess a firearm "on his or her person" where a
51 firearm licensed to such person is found in a motor vehicle at the same
52 time such person is an occupant of such vehicle.
53 (b) The license to carry or possess a firearm of any person who is
54 charged with a violation of any of the provisions of paragraph (a) of
55 this subdivision or who refuses to submit to a chemical test of his or
56 her breath, blood, urine or saliva for the purpose of determining the
S. 4058 4
1 alcoholic and/or drug content of his or her blood shall be deemed
2 suspended, with respect to the firearm or firearms forming the basis of
3 such charge or refusal, pending a hearing held pursuant to this subdivi-
4 sion and such firearm or firearms, together with any ammunition
5 possessed therewith, shall be confiscated and held by the police pending
6 such hearing.
7 (c) (i) Any person who holds a license to carry or possess a firearm
8 in this state shall be deemed to have given his or her consent to a
9 chemical test of his or her breath, blood, urine or saliva for the
10 purpose of determining the alcoholic and/or drug content of his or her
11 blood; provided, that such test is administered by or at the direction
12 of a police officer with respect to a chemical test of breath, urine or
13 saliva or, with respect to a chemical test of blood, at the direction of
14 a police officer having reasonable grounds to believe such person
15 possesses a firearm in violation of this subdivision.
16 (ii) If such licensee, having been requested to submit to such chemi-
17 cal test and having been informed that his or her license to carry or
18 possess a firearm shall be suspended for a refusal to submit to such
19 chemical test, refuses to submit to such test or is administered such
20 test, a written report of such refusal or test result shall be imme-
21 diately made by the police officer before whom such refusal or test was
22 made. Such report may be verified by having the report sworn to, or
23 affixing to such report a form notice that false statements made therein
24 are punishable as a class A misdemeanor, pursuant to section 210.45 of
25 this chapter, and such form notice together with the subscription of the
26 deponent shall constitute a verification of the report. The report of
27 the police officer shall state that he or she had reasonable grounds to
28 believe such licensee to have been in violation of this subdivision and,
29 if appropriate, that said person had refused to submit to such chemical
30 test. Copies of such report shall be forwarded by the police officer to
31 the licensing officer within forty-eight hours.
32 (d) (i) Any licensee whose license to carry or possess a firearm has
33 been deemed suspended pursuant to the terms of this subdivision, is
34 entitled to a hearing by the licensing officer, no later than seven days
35 after the date on which he or she allegedly violated this subdivision.
36 Such hearing shall be conducted by the licensing officer, or if such
37 possession allegedly occurred in the city of New York, by the police
38 commissioner of such city. If the licensing officer fails to provide for
39 such hearing within the time prescribed herein, the license of such
40 person shall be reinstated pending a hearing pursuant to this subdivi-
41 sion and any lawfully possessed firearm and ammunition confiscated
42 pursuant to paragraph (b) of this subdivision shall be immediately
43 returned to the licensee. The burden of proof at a hearing conducted
44 pursuant to this subdivision shall be on the police officer to prove the
45 issues by a preponderance of the evidence. The hearing shall be limited
46 to the following issues: (1) did the person possess a loaded firearm on
47 his or her person in a public place while under the influence of alcohol
48 or drugs in violation of this subdivision and did the police officer
49 have reasonable grounds for believing such violation had occurred; and
50 (2) if suspension is based upon a refusal to submit to a chemical test,
51 did the police officer have reasonable grounds for believing the licen-
52 see possessed a firearm in violation of this subdivision, was such
53 person given sufficient warning, in clear and unequivocal language,
54 prior to such refusal that such refusal to submit to such chemical test
55 would result in the suspension of his or her license whether or not he
56 or she is found guilty of the charge and did such person refuse to
S. 4058 5
1 submit to such chemical test. If, after such hearing, the licensing
2 officer finds on both of said issues in the negative, he or she shall
3 immediately reinstate such license subject to any existing restriction,
4 revocation, or suspension of such license and any lawfully possessed
5 firearm and ammunition confiscated pursuant to paragraph (b) of this
6 subdivision shall be immediately returned to the licensee. If, after
7 such hearing, the licensing officer finds either of the issues in the
8 affirmative, he or she shall immediately suspend the license. The
9 firearm license shall be suspended for a period of one year. The licens-
10 ing officer, upon suspending a license, shall instruct the person that
11 all outstanding firearms held pursuant to such license, and any amend-
12 ments thereto, shall be surrendered to the duly entitled police authori-
13 ties within twenty-four hours of the conclusion of such hearing. The
14 licensing officer shall instruct such person that all weapons surren-
15 dered pursuant to this paragraph and paragraph (b) of this subdivision
16 shall be returned to such person upon the reinstatement of such license.
17 Any person may waive his or her right to a hearing under this paragraph.
18 Failure by such person to appear for his or her scheduled hearing shall
19 constitute a waiver of such hearing, provided, however, that such person
20 may petition the licensing officer for a new hearing which, if granted,
21 shall be held as soon as practicable.
22 (ii) Evidence of a refusal to submit to such chemical test shall be
23 admissible in any hearing held pursuant to the provisions of this subdi-
24 vision but only upon showing that the person was given sufficient warn-
25 ing, in clear and unequivocal language, of the effect of such refusal.
26 (iii) Upon the request of the person who was tested, the results of
27 such test shall be made available to him or her.
28 (iv) The chemical test provided for in subparagraph (i) of paragraph
29 (c) of this subdivision shall be conducted in the same manner as
30 provided in subdivision four of section eleven hundred ninety-four of
31 the vehicle and traffic law.
32 (v) Any person whose license is suspended for a violation of this
33 subdivision shall, as a condition for reinstatement of such license,
34 successfully complete the alcohol and drug rehabilitation program
35 provided for in section eight hundred thirty-seven-s of the executive
36 law. The licensing officer shall not reinstate such license until the
37 commissioner of the division of criminal justice services certifies such
38 person has successfully completed the alcohol and drug rehabilitation
39 program.
40 (vi) During the period of suspension provided for in this paragraph
41 such person shall not be permitted to apply for any license, or an
42 amendment to an existing license, provided for in this section.
43 (e) The licensing officer suspending a license shall give written
44 notice thereof, without unnecessary delay, to the executive department,
45 division of state police, Albany, and shall also notify immediately the
46 duly constituted police authorities of the locality.
47 (f) In any hearing pursuant to this subdivision, the licensing officer
48 shall admit evidence of the amount of alcohol or drugs in the person's
49 blood as shown by a test administered pursuant to the provisions of this
50 subdivision.
51 The following effect shall be given to evidence of blood-alcohol
52 content, as determined by such tests, of a person charged with a
53 violation of this subdivision:
54 (i) Evidence that there was less than .10 of one per centum by weight
55 of alcohol in such person's blood shall be prima facie evidence that
56 such person was not under the influence of alcohol;
S. 4058 6
1 (ii) Evidence that there was .10 of one per centum or more by weight
2 of alcohol in such person's blood shall be prima facie evidence that
3 such person was under the influence of alcohol.
4 (g) Except as herein specifically provided, the hearing conducted
5 pursuant to this subdivision shall be deemed to be an adjudicatory
6 proceeding subject to the provisions of article three of the state
7 administrative procedure act.
8 (h) Any person aggrieved by a decision after the hearing provided for
9 in this subdivision may appeal such decision pursuant to the provisions
10 of article seventy-eight of the civil practice law and rules.
11 (i) Notwithstanding any other provision of law to the contrary, no
12 person shall be arrested solely for an alleged violation of this subdi-
13 vision. However, a person for whom a chemical test is authorized pursu-
14 ant to this subdivision may be temporarily detained by the police solely
15 for the purpose of requesting or administering such chemical test when-
16 ever arrest without warrant for a petty offense would be authorized in
17 accordance with the provisions of section 140.10 of the criminal proce-
18 dure law.
19 (j) Nothing contained in this subdivision shall be deemed to in any
20 way reduce or limit the existing authority of a licensing officer to
21 revoke or suspend a license issued pursuant to this section. Nothing
22 contained in this subdivision shall be deemed to limit, reduce or in any
23 way effect the criminal liability of a licensee for any firearm or other
24 offense defined in this chapter or any other provision of law.
25 § 5. Subdivision 15 of section 400.00 of the penal law, as amended by
26 chapter 1 of the laws of 2013, is amended to read as follows:
27 15. Any violation by any person of any provision of this section,
28 other than a violation of paragraph (a) of subdivision eleven-a of this
29 section, is a class A misdemeanor.
30 § 6. The executive law is amended by adding a new section 837-s to
31 read as follows:
32 § 837-s. Alcohol and drug rehabilitation program. 1. Program estab-
33 lishment. There is hereby established an alcohol and drug rehabilitation
34 program within the division. The commissioner shall establish, by regu-
35 lation, the instructional and rehabilitative aspects of the program.
36 Such program shall consist of at least fifteen and not more than thirty
37 hours and include, but need not be limited to, classroom instruction in
38 areas deemed suitable by the commissioner.
39 2. Curriculum. The form, content and method of presentation of the
40 various aspects of such program shall be established by the commission-
41 er. In the development of the form, curriculum and content of such
42 program, the commissioner may consult with the commissioner of mental
43 health, the commissioner of the office of alcoholism and substance abuse
44 services and any other state department or agency and request and
45 receive assistance from them. The commissioner is also authorized to
46 develop more than one curriculum and course content for such program in
47 order to meet the varying rehabilitative needs of the participants.
48 3. Where available. A course in such program shall be available in at
49 least every county in the state, except where the commissioner deter-
50 mines that there is not a sufficient number of alcohol or drug-related
51 offenses in a county to mandate the establishment of said course, and
52 that provisions be made for the residents of said county to attend a
53 course in another county where a course exists.
54 4. Eligibility. Participation in the program shall be limited to those
55 persons having violated the provisions of subdivision eleven-a of
56 section 400.00 of the penal law.
S. 4058 7
1 5. Effect of completion. Upon successful completion of a course in
2 such program as certified by its administrator, the commissioner shall,
3 on a form provided for such purpose, notify the appropriate licensing
4 officer having issued the order of suspension of such licensee's
5 successful completion of the course provided for in this section.
6 6. Fees. The commissioner shall establish a schedule of fees to be
7 paid by or on behalf of each participant in the program, and may, from
8 time to time, modify same. Such fees shall defray the ongoing expenses
9 of the program, provided, however, that pursuant to an agreement with
10 the division a municipality, department thereof, or other agency may
11 conduct a course in such program with all or part of the expense of such
12 course and program being borne by such municipality, department or agen-
13 cy. In no event shall such fee be refundable, either for reasons of the
14 participant's withdrawal or expulsion from such program or otherwise.
15 § 7. This act shall take effect on the first of November next succeed-
16 ing the date on which it shall have become a law; provided however, that
17 effective immediately, the addition, amendment and/or repeal of any rule
18 or regulation necessary for the implementation of the foregoing sections
19 of this act on their effective date is authorized and directed to be
20 made and completed within 180 days after the date on which this act
21 becomes a law.
