Amd §§1194, 1193 & 1192, ren §119-b to be §119-c, add §§119-b & 120-a, V & T L
Relates to procedures relating to driving while ability impaired by drugs; defines impairment and intoxication; updates procedures for field testing of drivers suspected of being under the influence of drugs to include the use of oral/bodily fluid tests; provides that refusal to submit to such field tests is specified to be a traffic infraction; makes related provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3981C
SPONSOR: Magnarelli TITLE OF BILL:
An act to amend the vehicle and traffic law, in relation to procedures
relating to driving while ability impaired by drugs; and providing for
the repeal of such provisions upon expiration thereof
PURPOSE OF THE BILL:
To update and modernize New York's laws regarding driving while impaired
by drugs.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Adds a new definition of "impairment".
Section 2: Adds a new definition of "intoxication".
Section 3: Amends Section 1194 of the Vehicle and Traffic Law to update,
the procedures for field testing of drivers suspected of being under the
influence of drugs to include the use of oral/bodily fluid tests.
Refusal to submit to such field tests is specified to be a traffic
infraction.
Section 4: Subparagraph (7) of paragraph (e) or subdivision (2) of
section 1193 of the Vehicle and Traffic Law are amended to update the
law regarding suspension of licenses pending prosecution to reflect
updates to the definitions of driving while under the influence of drugs
and provide for such suspensions for alleged drugged drivers under
designated circumstances.
Section 5: Section 1192 of the Vehicle and Traffic Law is amended by
adding new subdivisions 13 and 14. New subdivision 13 provides for an
affirmative defense to driving under the influence of drugs if the
person was having an allergic reaction or medical emergency. Subdivi-
sion 14 requires the Commissioner of the Department of Motor Vehicles
and the Commissioner of the Division of Criminal. Justice Services to
collect data on the number of stops, arrests and convictions made under
this bill while providing demographic data and providing that report to
the Governor, Assembly and Senate.
Section 6: Establishes the effective date.
JUSTIFICATION:
Nationally, roadway fatalities have increased by more than 10,000 since
2006 and have been described by U.S. Transportation Secretary Pete
Buttigieg as a national crisis. In 2022 there were 42,514 fatalities
nationally which represents a slight decrease from 2021 (4 2,939) of
1.7%. But in the same time frame, New York's fatalities increased 1.6%
from 1,156 to 1,175, which is the latest number in a steadily climbing
roadway fatality rate: 2020 (1,045), 2021 (1156) and 2022 (1175). These
numbers represent a 24% increase in New York's fatalities in the 5 years
ending in 2022. At the same time, drug-related fatalities exceeded those
that were alcohol-related in both 2020 and 2022 according to the Insti-
tute for Traffic Safety Management and Research (ITSMR). The clear indi-
cation is that drugged driving has become an increasing threat and is
adding to the number of lives lost. 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.
However, the Institute for Traffic Safety Management and Research
(ITSMR) reports that in New York, there has been an 87% increase between
2013 and 2022 of the number of drivers involved in fatal crashes who
tested positive for at least one drug on the Public Health Law (PHL) §
3306 list. Drug-related driving crashes have increased 33% in the 5
years between 2018 and 2022. These numbers undercount the drugged driv-
ing threat, however, because they do not include drugs that are not on
the PHL list or drugs that were not tested for.
New York's current drugged driving statute requires law enforcement to
name the drug impairing the driver and for the drug to be on the PHL §
3306 list, thereby excluding constantly changing synthetic drugs and
even impairing household products. Regardless of how impaired, a driver
using an unlisted substance cannot be prosecuted for drugged driving in
New York under the Court of Appeals case of People v. Litto (8 N.Y.3d
692, 2007). The court referred to unlisted substances as a "legislative
gap". New York is one of only 4 states that requires a drug to be listed
in statute to trigger a drugged driving violation. In January of 2023,
the National Transportation Safety Board (NTSB) sent a letter to the
Governor recommending a legislative correction to remove the list
requirement. This bill seeks to follow the NTSB safety recommendation,
make the legislative correction and bring New York in line with the
other 46 states by providing definitions of the terms "impaired" and
"intoxicated" and including impairing substances that are not on the PHL
§ 3306 list.
This bill codifies the definitions enunciated more than 40 years ago by
the Court of Appeals in People v. Cruz, 48 N.Y.2nd 419 (1979) and People
v. Ardila, 85 N.Y.2nd 846 (1995) and extends intoxication to any
substance or combination of substances that are either not included in
the definition of a drug in VTL § 114-a or are unable to be identified.
The basis of the charge of Driving in an Intoxicated Condition under VTL
§ 1192.3 will be the condition of the driver and will no longer be
limited to alcohol. This language would combat the growing number of
constantly changing synthetic drugs and the dangerous use of uncon-
trolled substances by drivers. This legislation will also re-establish
"impaired" and "intoxicated" as separate standards and resolve the
confusion raised by contradictory Appellate Court holdings in People v.
Caden N., 189 A.D.3rd 84 (3rd Dept.2020) and People v. Dondorfer, 235
A.D.3d 71 (4th Dept. 2024). 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 driv-
ers 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.
Finally, it updates the law regarding suspension of licenses pending
prosecution by adding drugged drivers with charges supported by testing,
drug recognition evaluations 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.
Through this process, dangerously impaired drivers would have their
licenses suspended or revoked, be provided treatment intervention,
attend the educational Impaired Driving Program and receive behavior
modification. The goal of this legislation is to save lives by inter-
cepting drugged drivers before they crash and kill.
PRIOR LEGISLATIVE HISTORY:
2023-2024: S.3135, 2025: S.6485, S.6485a
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DAVE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become a law and be deemed repealed five
years after such effective date.
PRIOR LEGISLATIVE HISTORY:
2023-2024: A.174; 2022: A.9554
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DAVE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become a law and be deemed repealed five
years after such effective date.
STATE OF NEW YORK
________________________________________________________________________
3981--C
2025-2026 Regular Sessions
IN ASSEMBLY
January 30, 2025
___________
Introduced by M. of A. MAGNARELLI, STERN, WOERNER, BUTTENSCHON, BURDICK,
STIRPE, McMAHON, JACOBSON, DINOWITZ, SHIMSKY, DE LOS SANTOS, SIMON,
LEVENBERG, BERGER, PHEFFER AMATO, CONRAD, McDONOUGH, FALL, LUNSFORD,
DAVILA, JONES, TAPIA, GRIFFIN, McDONALD, YEGER, COLTON, STECK, KASSAY,
SEAWRIGHT, SCHIAVONI, O'PHARROW, ANDERSON, LUPARDO, KAY, BRONSON,
CLARK, FORREST, OTIS, WIEDER, P. CARROLL, BARRETT, EACHUS, PAULIN,
LASHER, LAVINE, TORRES, R. CARROLL, ALVAREZ, RAGA, ROZIC, SANTABAR-
BARA, TAYLOR, SAYEGH, WEPRIN, CUNNINGHAM, ZACCARO, WILLIAMS, SIMONE,
JACKSON -- read once and referred to the Committee on Transportation
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee -- again reported from said commit-
tee with amendments, ordered reprinted as amended and recommitted to
said committee -- again reported from said committee with amendments,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the vehicle and traffic law, in relation to procedures
relating to driving while ability impaired by drugs; and providing for
the repeal of such provisions upon expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 119-b of the vehicle and traffic law is renumbered
2 119-c and a new section 119-b is added to read as follows:
3 § 119-b. Impaired. Impairment is reached when a driver has voluntarily
4 consumed or ingested alcohol or a drug as defined in section one hundred
5 fourteen-a of this article to the extent that the driver has impaired,
6 to any extent, the physical and mental abilities which a driver is
7 expected to possess in order to operate a vehicle as a reasonable and
8 prudent driver.
9 § 2. The vehicle and traffic law is amended by adding a new section
10 120-a to read as follows:
11 § 120-a. Intoxication. Intoxication is a greater degree of impairment
12 which is reached when a driver has voluntarily consumed or ingested
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00438-15-5
A. 3981--C 2
1 alcohol or a substance or combination of substances to the extent that
2 the driver is incapable, to a substantial extent, of employing the phys-
3 ical and mental abilities which a driver is expected to possess in order
4 to operate a vehicle as a reasonable and prudent driver.
5 § 3. Subdivision 1, the opening paragraph of paragraph (a) and subpar-
6 agraph 1 of paragraph (b) of subdivision 2 and paragraphs (a), (b), (c),
7 subparagraph 4 of paragraph (d), and paragraph (e) of subdivision 3 of
8 section 1194 of the vehicle and traffic law, as added by chapter 47 of
9 the laws of 1988, the opening paragraph of paragraph (a) of subdivision
10 2 as amended by chapter 196 of the laws of 1996, subparagraph 1 of para-
11 graph (b) of subdivision 2 as amended by chapter 489 of the laws of 2017
12 and clause (A) of subparagraph 1 as amended by chapter 27 of the laws of
13 2018, are amended to read as follows:
14 1. Arrest and field testing. (a) Arrest. Notwithstanding the
15 provisions of section 140.10 of the criminal procedure law, a police
16 officer may, without a warrant, arrest a person, in case of a violation
17 of subdivision one of section eleven hundred ninety-two of this article,
18 if such violation is coupled with an accident or collision in which such
19 person is involved, which in fact has been committed, though not in the
20 police officer's presence, when the officer has reasonable cause to
21 believe that the violation was committed by such person.
22 (b) Field testing. Every person operating a motor vehicle which has
23 been involved in an accident or which is operated in violation of any of
24 the provisions of this chapter shall, at the request of a police offi-
25 cer, submit to a breath test and/or oral/bodily fluid test to be admin-
26 istered by the police officer. If such test indicates that such operator
27 has consumed alcohol or a drug or drugs, the police officer may request
28 such operator to submit to a chemical test in the manner set forth in
29 subdivision two of this section.
30 (c) Refusal to submit to a breath test and/or oral/bodily fluid test
31 pursuant to paragraph (b) of this subdivision shall be a traffic infrac-
32 tion.
33 Any person who operates a motor vehicle in this state shall be deemed
34 to have given consent to a chemical test of one or more of the follow-
35 ing: breath, blood, urine, or [saliva] oral/bodily fluid, for the
36 purpose of determining the alcoholic and/or drug content [of the blood]
37 provided that such test is administered by or at the direction of a
38 police officer with respect to a chemical test of breath, urine or
39 [saliva] oral/bodily fluid or, with respect to a chemical test of blood,
40 at the direction of a police officer:
41 (1) If: (A) such person having been placed under arrest; or (B) after
42 a breath and/or oral/bodily fluid test indicates the presence of alcohol
43 and/or a drug or drugs in the person's system; or (C) with regard to a
44 person under the age of twenty-one, there are reasonable grounds to
45 believe that such person has been operating a motor vehicle after having
46 consumed alcohol in violation of section eleven hundred ninety-two-a of
47 this article; and having thereafter been requested to submit to such
48 chemical test and having been informed that the person's license or
49 permit to drive and any non-resident operating privilege shall be imme-
50 diately suspended and subsequently revoked, or, for operators under the
51 age of twenty-one for whom there are reasonable grounds to believe that
52 such operator has been operating a motor vehicle after having consumed
53 alcohol in violation of section eleven hundred ninety-two-a of this
54 article, shall be revoked for refusal to submit to such chemical test or
55 any portion thereof, whether or not the person is found guilty of the
56 charge for which such person is arrested or detained, refuses to submit
A. 3981--C 3
1 to such chemical test or any portion thereof, [unless a court order has
2 been granted pursuant to subdivision three of this section,] the test
3 shall not be given and a written report of such refusal shall be imme-
4 diately made by the police officer before whom such refusal was made.
5 Such report may be verified by having the report sworn to, or by affix-
6 ing to such report a form notice that false statements made therein are
7 punishable as a class A misdemeanor pursuant to section 210.45 of the
8 penal law and such form notice together with the subscription of the
9 deponent shall constitute a verification of the report.
10 (a) Court ordered chemical tests. Notwithstanding the provisions of
11 subdivision two of this section, no person who operates a motor vehicle
12 in this state may refuse to submit to a chemical test of one or more of
13 the following: breath, blood, urine or [saliva] oral/bodily fluids, for
14 the purpose of determining the alcoholic and/or drug content of the
15 blood or oral/bodily fluids when a court order for such chemical test
16 has been issued in accordance with the provisions of this subdivision.
17 (b) When authorized. Upon refusal by any person to submit to a chemi-
18 cal test or any portion thereof as described above, the test shall not
19 be given unless a police officer or a district attorney, as defined in
20 subdivision thirty-two of section 1.20 of the criminal procedure law,
21 requests and obtains a court order to compel a person to submit to a
22 chemical test to determine the alcoholic [or] and/or drug content of the
23 person's blood or oral/bodily fluids upon a finding of reasonable cause
24 to believe that:
25 (1) such person was the operator of a motor vehicle and in the course
26 of such operation a person other than the operator was killed or
27 suffered serious physical injury as defined in section 10.00 of the
28 penal law; and
29 (2) a. either such person operated the vehicle in violation of any
30 subdivision of section eleven hundred ninety-two of this article, or
31 b. a breath test and/or oral/bodily fluid test administered by a
32 police officer in accordance with paragraph (b) of subdivision one of
33 this section indicates that alcohol and/or a drug or drugs has been
34 consumed by such person; and
35 (3) such person has been placed under lawful arrest; and
36 (4) such person has refused to submit to a chemical test or any
37 portion thereof, requested in accordance with the provisions of para-
38 graph (a) of subdivision two of this section or is unable to give
39 consent to such a test.
40 (c) Reasonable cause; definition. For the purpose of this subdivision
41 "reasonable cause" shall be determined by viewing the totality of
42 circumstances surrounding the incident which, when taken together, indi-
43 cate that the operator was driving in violation of section eleven
44 hundred ninety-two of this article. Such circumstances may include, but
45 are not limited to: evidence that the operator was operating a motor
46 vehicle in violation of any provision of this article or any other
47 moving violation at the time of the incident; any visible indication of
48 alcohol or drug consumption or impairment by the operator; the existence
49 of an open container containing an alcoholic beverage and/or a drug or
50 drugs in or around the vehicle driven by the operator; any other
51 evidence surrounding the circumstances of the incident which indicates
52 that the operator has been operating a motor vehicle while impaired by
53 the consumption of alcohol or drugs or intoxicated at the time of the
54 incident.
55 (4) If the court is satisfied that the requirements for the issuance
56 of a court order pursuant to the provisions of paragraph (b) of this
A. 3981--C 4
1 subdivision have been met, it may grant the application and issue an
2 order requiring the accused to submit to a chemical test to determine
3 the alcoholic and/or drug content of [his] such accused's blood [and]
4 and/or oral/bodily fluids and ordering the withdrawal of a blood and/or
5 oral/bodily fluid sample in accordance with the provisions of paragraph
6 (a) of subdivision four of this section. When a judge or justice deter-
7 mines to issue an order to compel submission to a chemical test based on
8 an oral application, the applicant therefor shall prepare the order in
9 accordance with the instructions of the judge or justice. In all cases
10 the order shall include the name of the issuing judge or justice, the
11 name of the applicant, and the date and time it was issued. It must be
12 signed by the judge or justice if issued in person, or by the applicant
13 if issued orally.
14 (e) Administration of compulsory chemical test. An order issued pursu-
15 ant to the provisions of this subdivision shall require that a chemical
16 test to determine the alcoholic and/or drug content of the operator's
17 blood and/or oral/bodily fluid must be administered. The provisions of
18 paragraphs (a), (b) and (c) of subdivision four of this section shall be
19 applicable to any chemical test administered pursuant to this section.
20 § 4. The subparagraph heading and clauses a and b of subparagraph 7 of
21 paragraph (e) of subdivision 2 of section 1193 of the vehicle and traf-
22 fic law, the subparagraph heading as added by chapter 312 of the laws of
23 1994, clause a as amended by chapter 732 of the laws of 2006, and clause
24 b as separately amended by chapters 3 and 571 of the laws of 2002, are
25 amended to read as follows:
26 Suspension pending prosecution; excessive blood alcohol content,
27 intoxication or impairment by a drug or drugs. a. Except as provided in
28 clause a-1 of this subparagraph, a court shall suspend a driver's
29 license, pending prosecution, of any person charged with a violation of
30 subdivision two, two-a, three, four or four-a of section eleven hundred
31 ninety-two of this article who, at the time of arrest, is alleged to
32 have had .08 of one percent or more by weight of alcohol in such driv-
33 er's blood or is alleged to have been impaired by the ingestion of a
34 drug or drugs as shown or supported by chemical analysis of blood,
35 breath, urine or [saliva] oral/bodily fluid, made pursuant to subdivi-
36 sion two or three of section eleven hundred ninety-four of this article,
37 or by an evaluation conducted by a certified drug recognition expert, or
38 any portion thereof, or if the driver made a statement admitting to
39 driving while intoxicated by alcohol or by any substance or combination
40 of substances, or while impaired by a drug or drugs.
41 b. The suspension occurring under clause a of this subparagraph shall
42 occur no later than at the conclusion of all proceedings required for
43 the arraignment and the suspension occurring under clause a-1 of this
44 subparagraph shall occur immediately after the holder's first appearance
45 before the court on the charge which shall, whenever possible, be the
46 next regularly scheduled session of the court after the arrest or at the
47 conclusion of all proceedings required for the arraignment; provided,
48 however, that if the results of any test administered pursuant to
49 section eleven hundred ninety-four of this article are not available
50 within such time period, the complainant police officer or other public
51 servant shall transmit such results to the court at the time they become
52 available, and the court shall, as soon as practicable following the
53 receipt of such results and in compliance with the requirements of this
54 subparagraph, suspend such license. In order for the court to impose
55 such suspension it must find that the accusatory instrument conforms to
56 the requirements of section 100.40 of the criminal procedure law and
A. 3981--C 5
1 there exists reasonable cause to believe either that (a) the holder
2 operated a motor vehicle while such holder had .08 of one percent or
3 more by weight of alcohol in [his or her] such holder's blood as was
4 shown by chemical analysis of such person's blood, breath, urine or
5 [saliva] oral/bodily fluid, or was impaired by the ingestion of a drug
6 or drugs as supported by such chemical test analysis made pursuant to
7 the provisions of section eleven hundred ninety-four of this article or
8 by an evaluation conducted by a certified drug recognition expert, or
9 any portion thereof, or the driver made a statement admitting to driving
10 while intoxicated by alcohol or by a substance or combination of
11 substances, or while impaired by a drug or drugs; or (b) the person was
12 the holder of a class DJ or MJ learner's permit or a class DJ or MJ
13 driver's license and operated a motor vehicle while such holder was in
14 violation of subdivision one, two and/or three of section eleven hundred
15 ninety-two of this article. At the time of such license suspension the
16 holder shall be entitled to an opportunity to make a statement regarding
17 these two issues and to present evidence tending to rebut the court's
18 findings.
19 § 5. Section 1192 of the vehicle and traffic law is amended by adding
20 two new subdivisions 13 and 14 to read as follows:
21 13. It shall be an affirmative defense to a charge under subdivision
22 three of this section that the operator suffered an allergic reaction or
23 medical emergency rather than being impaired by a substance or combina-
24 tion of substances. The operator must provide written notice of the
25 intent to assert the affirmative defense and shall be subject to the
26 rules of reciprocal discovery under article two hundred forty-five of
27 the criminal procedure law for any medical records or documentation
28 related to the affirmative defense.
29 14. The commissioner and the commissioner of the division of criminal
30 justice services shall collect data on the number of traffic stops,
31 arrests and convictions for driving while intoxicated by a substance or
32 combination of substances under subdivision three of this section, or
33 while impaired by a drug or a combination of drugs or a combination of
34 drugs and alcohol under subdivision four or four-a of this section. It
35 shall report the number of traffic stops, arrests and convictions by
36 race, sex, age and national origin and provide an annual report to the
37 governor, the speaker of the assembly and the temporary president of the
38 senate.
39 § 6. This act shall take effect on the first of November next succeed-
40 ing the date on which it shall have become a law and shall expire and be
41 deemed repealed 5 years after such effective date.
