Enacts the "alcohol and controlled substance expense recovery act"; permits each city, county, town and village to adopt a local law or ordinance providing for the civil recovery, from the operator of a motor vehicle, of any cost or expense expended or incurred for services or materials in responding to an emergency situation, caused by such operator who is under the influence of alcohol or a controlled substance; provides that such municipality may keep a schedule of such costs and commence a civil action to recover such costs if such operator is found to be so impaired.
STATE OF NEW YORK
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2803
2009-2010 Regular Sessions
IN ASSEMBLY
January 21, 2009
___________
Introduced by M. of A. KOLB, WALKER, McKEVITT, ERRIGO -- Multi-Sponsored
by -- M. of A. CORWIN, QUINN -- read once and referred to the Commit-
tee on Alcoholism and Drug Abuse
AN ACT to amend the general municipal law, in relation to reimbursement
of municipal cost and expense incurred by motor vehicle drivers under
the influence of alcohol and/or controlled substances
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general municipal law is amended by adding a new arti-
2 cle 17-A to read as follows:
3 ARTICLE 17-A
4 REIMBURSEMENT OF MUNICIPAL EXPENSE BY DRIVERS
5 OF MOTOR VEHICLES UNDER THE INFLUENCE OF
6 ALCOHOL AND/OR A CONTROLLED SUBSTANCE
7 Section 725. Short title; purpose of article.
8 726. Definitions.
9 727. Local laws and ordinances.
10 728. Standard of impairment; testing methods.
11 729. Presumption with respect to causal connection.
12 730. Additional presumption of impairment.
13 731. Damages.
14 732. Attorney's fees, court costs and expenses; recovery.
15 733. Severability.
16 § 725. Short title; purpose of article. This article shall be known
17 and may be cited as the "alcohol and controlled substance expense recov-
18 ery act". The legislature hereby declares that a high percentage of
19 automobile accidents are related to the use of alcohol and controlled
20 substances and, in addition to the terrible losses suffered by the fami-
21 lies and loved ones of injured parties, the community itself suffers
22 serious financial burdens by being obliged to respond to the scenes of
23 such accidents. Since there would appear to be no reason why those caus-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05050-01-9
A. 2803 2
1 ing or contributing to such accidents when using alcoholic beverages or
2 controlled substances should not suffer the economic burden created by
3 any such accident and the additional economic burden of recovering the
4 costs and expenses incident thereto, it is the determination of this
5 legislature that the passage of this article is required in order to
6 allow the more equitable distribution of the cost and expense imposed by
7 such antisocial conduct.
8 § 726. Definitions. The following terms shall have the meanings here-
9 inafter set forth, respectively:
10 1. "Controlled substances" shall mean and include any substance named
11 or described as such in title one of article thirty-three of the public
12 health law.
13 2. "Costs and expenses of emergency responses" shall mean and include,
14 but not be limited to, all costs of labor, medical materials, medical
15 equipment, police equipment, fire equipment, and administrative expenses
16 associated therewith, which shall be expended, used, associated with,
17 occasioned by or connected with any emergency medical, fire or police
18 response and, for the purposes hereof, the costs of emergency medical,
19 fire and police manpower services shall be as set forth on such sched-
20 ules as a municipality may adopt, from time to time, by resolution
21 pursuant to this article.
22 § 727. Local laws and ordinances. Notwithstanding any other provision
23 of law to the contrary and subject to the provisions of this article,
24 any city, county, town or village in this state, acting through its
25 local legislative body, is hereby authorized and empowered to adopt and
26 amend either a local law or an ordinance providing for the recovery by
27 such municipality of any cost or expense incurred or expended by it as
28 the result of the operation of a motor vehicle within such municipality
29 by an individual while under the influence of alcoholic beverages or
30 controlled substances or a combination of alcoholic beverages and
31 controlled substances to the extent that his or her normal faculties are
32 impaired or to the extent that he or she is deprived of full possession
33 of his or her normal faculties and, if such person shall proximately
34 cause an accident or is a substantial causative factor of an accident
35 resulting in the need for such municipality to provide emergency
36 medical, fire or police responses or services, such person shall be
37 liable to such municipality for all costs and expenses of such emergency
38 responses and services.
39 § 728. Standard of impairment; testing methods. 1. In any trial of
40 any civil action or proceeding with respect to the enforcement of any
41 local law or ordinance passed pursuant hereto alleging that any person
42 is liable to such municipality because such person was the cause of or
43 was a substantial causative factor of an accident requiring emergency
44 medical, fire or police responses while such person was driving or in
45 actual physical control of a vehicle while under the influence of alco-
46 holic beverages or controlled substances, or a combination of alcoholic
47 beverages and controlled substances, to the extent that his or her
48 normal faculties were impaired, or to the extent that he or she was
49 deprived of full possession of his or her normal faculties, the results
50 of any test administered in accordance with article thirty-one of the
51 vehicle and traffic law shall be admissible into evidence when otherwise
52 admissible, and the amount of alcohol or controlled substance in the
53 person's blood at the time alleged, as shown by chemical analysis of the
54 person's blood or breath or urine, shall give rise to the following
55 presumptions:
A. 2803 3
1 a. If there was, at the time, 0.05 percent or less by weight of alco-
2 hol in the person's blood, and if there was no evidence of a controlled
3 substance in such person's blood, it shall be presumed that the person
4 was not under the influence of alcoholic beverages or controlled
5 substances or any combination thereof to the extent that his or her
6 normal faculties were impaired.
7 b. If there was, at the time, in excess of 0.05 percent but less than
8 0.08 percent by weight of alcohol in the person's blood such facts shall
9 not give rise to any presumption that the person was or was not under
10 the influence of alcoholic beverages or controlled substances or a
11 combination thereof to the extent that his or her normal faculties were
12 impaired, but such fact may be considered with other competent evidence
13 in determining whether the person was under the influence of alcoholic
14 beverages or controlled substances or any combination thereof to the
15 extent that his or her normal faculties were impaired.
16 c. If there was, at the time, 0.08 percent or more by weight of alco-
17 hol in the person's blood, even if there was no evidence of a controlled
18 substance in such person's blood, such fact shall be prima facie
19 evidence that the person was under the influence of alcoholic beverages
20 to the extent that his or her normal faculties were impaired.
21 d. If there was, at the time, in excess of 0.05 percent by weight of
22 alcohol in the person's blood and evidence of a controlled substance in
23 the person's blood, such facts shall be prima facie evidence that the
24 person was under the influence of a combination of alcoholic beverages
25 and controlled substances to the extent that his or her normal faculties
26 were impaired.
27 2. The percent by weight of alcohol in the blood shall be based upon
28 grams of alcohol per 100 milliliters of blood.
29 3. The foregoing provisions of this section shall not be construed as
30 limiting the introduction of other competent evidence bearing upon the
31 question of whether the person was under the influence of alcoholic
32 beverages or controlled substances, or a combination of alcoholic bever-
33 ages and controlled substances, either to the extent that his or her
34 normal faculties were impaired or to the extent that he or she was
35 deprived of full possession of his or her normal faculties, or that such
36 impairment was the proximate cause or substantially causative of the
37 accident giving rise to the need for emergency medical, police or fire
38 services.
39 4. A chemical analysis of a person's blood to determine alcoholic
40 content, a chemical analysis of a person's breath or a chemical analysis
41 of a person's urine, in order to be considered valid under the
42 provisions of this section, must have been performed substantially in
43 accordance with the method set forth in article thirty-one of the vehi-
44 cle and traffic law. Any insubstantial differences between approved
45 techniques and actual testing procedures in any individual case shall
46 not render the test or test results invalid. Any technique or method
47 approved by the department of health with respect to such analysis shall
48 be deemed acceptable. Any person who shall be deemed qualified and
49 competent to conduct such analysis by the department of health shall be
50 deemed competent to conduct such analysis.
51 § 729. Presumption with respect to causal connection. In any trial of
52 any civil action or proceeding with respect to the enforcement hereof
53 alleging that any person is liable hereunder because such person was the
54 cause of or was a substantial causative factor of an accident requiring
55 emergency medical, fire or police responses while such person was driv-
56 ing or in actual physical control of a vehicle while under the influence
A. 2803 4
1 of alcoholic beverages or controlled substances, or a combination of
2 alcoholic beverages and controlled substances, to the extent that his or
3 her normal faculties were impaired or that he or she was deprived of
4 full possession of his or her normal faculties, it shall be presumed
5 that a person under the influence of alcoholic beverages and/or
6 controlled substances to the extent that his or her normal faculties
7 were impaired, or to the extent that he or she was deprived of full
8 possession of his or her normal faculties, was the proximate cause or
9 was a substantial causative factor of the accident giving rise to the
10 need for emergency medical, police and fire services.
11 § 730. Additional presumption of impairment. In any trial of any civil
12 action or proceeding with respect to the enforcement of any local law or
13 ordinance passed pursuant hereto alleging that any person is liable to
14 such municipality because such person was the cause of or was a substan-
15 tial causative factor of an accident requiring emergency medical, fire
16 or police responses while such person was driving or in actual physical
17 control of a vehicle while under the influence of alcoholic beverages or
18 controlled substances, or a combination of alcoholic beverages and
19 controlled substances, to the extent that his or her normal faculties
20 were impaired or that he or she was deprived of full possession of his
21 or her normal faculties, it shall be presumed that such person's normal
22 faculties were impaired or that such person was deprived of full
23 possession of his or her normal faculties if such person shall plead
24 guilty to or shall have been found guilty after trial of a violation of
25 section eleven hundred ninety-two of the vehicle and traffic law or if
26 such person refuses an officer's request to submit to any breath, blood
27 or urine test provided in section eleven hundred ninety-four of the
28 vehicle and traffic law and such officer shall have submitted a sworn
29 statement that he had reasonable cause to believe the person had been
30 driving or had been in actual physical control of a motor vehicle within
31 such municipality while under the influence of alcoholic beverages or
32 controlled substances, or a combination of alcoholic beverages and
33 controlled substances, and that such person had refused to submit to the
34 test or tests after being requested to do so by the officer.
35 § 731. Damages. Every municipality adopting a local law or ordinance
36 pursuant to this article shall develop and keep current a schedule of
37 such emergency costs and expenses likely to be incurred or expended as a
38 result of such an alcohol or controlled substance related accident
39 setting forth the cost and value of time and services, as well as mate-
40 rials, provided in emergency situations as contemplated by this article.
41 § 732. Attorney's fees, court costs and expenses; recovery. In any
42 trial or any civil action or proceeding arising in the enforcement of
43 any local law or ordinance passed pursuant hereto, the municipality
44 involved shall be entitled to recover all court costs, expenses and
45 attorney's fees incurred by such municipality in such dispute and such
46 right shall include all of such costs, expenses and attorney's fees
47 through all appeals or other actions.
48 § 733. Severability. If any section, subdivision, paragraph, sentence,
49 clause, phrase or portion of this article is for any reason held invalid
50 or unconstitutional by any court of competent jurisdiction, such portion
51 shall be deemed a separate, distinct and independent provision and such
52 holding shall not affect the validity of the remaining portions of this
53 article.
54 § 2. This act shall take effect immediately.
