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.
STATE OF NEW YORK
________________________________________________________________________
3981--B
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 --
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 committee with amend-
ments, 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 any substance listed in section thirty-
5 three hundred six of the public health law and cannabis and concentrated
6 cannabis as defined in section 222.00 of the penal law to the extent
7 that the driver has impaired, to any extent, the physical and mental
8 abilities which a driver is expected to possess in order to operate a
9 vehicle as a reasonable and prudent driver.
10 § 2. The vehicle and traffic law is amended by adding a new section
11 120-a to read as follows:
12 § 120-a. Intoxication. Intoxication is a greater degree of impairment
13 which is reached when a driver has voluntarily consumed or ingested
14 alcohol or a substance or combination of substances to the extent that
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00438-09-5
A. 3981--B 2
1 the driver is incapable, to a substantial extent, of employing the phys-
2 ical and mental abilities which a driver is expected to possess in order
3 to operate a vehicle as a reasonable and prudent driver.
4 § 3. Subdivisions 1, 2 and 3 of section 1194 of the vehicle and traf-
5 fic law, as added by chapter 47 of the laws of 1988, paragraph (a) of
6 subdivision 2 as amended by chapter 196 of the laws of 1996, paragraphs
7 (b) and (c) of subdivision 2 as amended by chapter 489 of the laws of
8 2017, clause (A) of subparagraph 1, subparagraphs 2 and 3 of paragraph
9 (b) and subparagraphs 1, 2 and 3 of paragraph (c) of subdivision 2 as
10 amended by chapter 27 of the laws of 2018, subparagraphs 1 and 2 of
11 paragraph (d) of subdivision 2 as amended by chapter 732 of the laws of
12 2006, and item (iii) of clause c of subparagraph 1 of paragraph (d) of
13 subdivision 2 as amended by section 37 of part LL of chapter 56 of the
14 laws of 2010, are amended to read as follows:
15 1. Arrest and field testing. (a) Arrest. Notwithstanding the
16 provisions of section 140.10 of the criminal procedure law, a police
17 officer may, without a warrant, arrest a person, in case of a violation
18 of subdivision one of section eleven hundred ninety-two of this article,
19 if such violation is coupled with an accident or collision in which such
20 person is involved, which in fact has been committed, though not in the
21 police officer's presence, when the officer has reasonable cause to
22 believe that the violation was committed by such person.
23 (b) Field testing. Every person operating a motor vehicle which has
24 been involved in an accident or which is operated in violation of any of
25 the provisions of this chapter shall, at the request of a police offi-
26 cer, submit to a breath test and/or oral/bodily fluid test to be admin-
27 istered by the police officer. If such test indicates that such operator
28 has consumed alcohol or a drug or drugs, the police officer may request
29 such operator to submit to a chemical test in the manner set forth in
30 subdivision two of this section.
31 (c) Refusal to submit to a breath test and/or oral/bodily fluid test
32 pursuant to paragraph (b) of this subdivision shall be a traffic infrac-
33 tion.
34 2. Chemical tests. (a) When authorized. Any person who operates a
35 motor vehicle in this state shall be deemed to have given consent to a
36 chemical test of one or more of the following: breath, blood, urine, or
37 [saliva] oral/bodily fluid, for the purpose of determining the alcoholic
38 and/or drug content [of the blood] provided that such test is adminis-
39 tered by or at the direction of a police officer with respect to a chem-
40 ical test of breath, urine or [saliva] oral/bodily fluid or, with
41 respect to a chemical test of blood, at the direction of a police offi-
42 cer[:
43 (1) having reasonable grounds to believe such person to have been
44 operating in violation of any subdivision of section eleven hundred
45 ninety-two of this article and within two hours after such person has
46 been placed under arrest for any such violation; or having reasonable
47 grounds to believe such person to have been operating in violation of
48 section eleven hundred ninety-two-a of this article and within two hours
49 after the stop of such person for any such violation,
50 (2) within two hours after a breath test, as provided in paragraph (b)
51 of subdivision one of this section, indicates that alcohol has been
52 consumed by such person and in accordance with the rules and regulations
53 established by the police force of which the officer is a member;
54 (3) for the purposes of this paragraph, "reasonable grounds" to
55 believe that a person has been operating a motor vehicle after having
56 consumed alcohol in violation of section eleven hundred ninety-two-a of
A. 3981--B 3
1 this article shall be determined by viewing the totality of circum-
2 stances surrounding the incident which, when taken together, indicate
3 that the operator was driving in violation of such subdivision. Such
4 circumstances may include any visible or behavioral indication of alco-
5 hol consumption by the operator, the existence of an open container
6 containing or having contained an alcoholic beverage in or around the
7 vehicle driven by the operator, or any other evidence surrounding the
8 circumstances of the incident which indicates that the operator has been
9 operating a motor vehicle after having consumed alcohol at the time of
10 the incident; or
11 (4) notwithstanding any other provision of law to the contrary, no
12 person under the age of twenty-one shall be arrested for an alleged
13 violation of section eleven hundred ninety-two-a of this article.
14 However, a person under the age of twenty-one for whom a chemical test
15 is authorized pursuant to this paragraph may be temporarily detained by
16 the police solely for the purpose of requesting or administering such
17 chemical test whenever arrest without a warrant for a petty offense
18 would be authorized in accordance with the provisions of section 140.10
19 of the criminal procedure law or paragraph (a) of subdivision one of
20 this section].
21 (b) Report of refusal. [(1)] If: [(A)] (1) such person having been
22 placed under arrest; or [(B)] (2) after a breath and/or oral/bodily
23 fluid test indicates the presence of alcohol and/or a drug or drugs in
24 the person's system; or [(C)] (3) with regard to a person under the age
25 of twenty-one, there are reasonable grounds to believe that such person
26 has been operating a motor vehicle after having consumed alcohol in
27 violation of section eleven hundred ninety-two-a of this article; and
28 having thereafter been requested to submit to such chemical test and
29 having been informed that the person's license or permit to drive and
30 any non-resident operating privilege shall be immediately suspended and
31 subsequently revoked, or, for operators under the age of twenty-one for
32 whom there are reasonable grounds to believe that such operator has been
33 operating a motor vehicle after having consumed alcohol in violation of
34 section eleven hundred ninety-two-a of this article, shall be revoked
35 for refusal to submit to such chemical test or any portion thereof,
36 whether or not the person is found guilty of the charge for which such
37 person is arrested or detained, refuses to submit to such chemical test
38 or any portion thereof, [unless a court order has been granted pursuant
39 to subdivision three of this section,] the test shall not be given and a
40 written report of such refusal shall be immediately made by the police
41 officer before whom such refusal was made. Such report may be verified
42 by having the report sworn to, or by affixing to such report a form
43 notice that false statements made therein are punishable as a class A
44 misdemeanor pursuant to section 210.45 of the penal law and such form
45 notice together with the subscription of the deponent shall constitute a
46 verification of the report.
47 [(2) The report of the police officer shall set forth reasonable
48 grounds to believe such arrested person or such detained person under
49 the age of twenty-one had been driving in violation of any subdivision
50 of section eleven hundred ninety-two or eleven hundred ninety-two-a of
51 this article, that said person had refused to submit to such chemical
52 test, and that no chemical test was administered pursuant to the
53 requirements of subdivision three of this section. The report shall be
54 presented to the court upon arraignment of an arrested person, provided,
55 however, in the case of a person under the age of twenty-one, for whom a
56 test was authorized pursuant to the provisions of subparagraph two or
A. 3981--B 4
1 three of paragraph (a) of this subdivision, and who has not been placed
2 under arrest for a violation of any of the provisions of section eleven
3 hundred ninety-two of this article, such report shall be forwarded to
4 the commissioner within forty-eight hours in a manner to be prescribed
5 by the commissioner, and all subsequent proceedings with regard to
6 refusal to submit to such chemical test by such person shall be as set
7 forth in subdivision three of section eleven hundred ninety-four-a of
8 this article.
9 (3) For persons placed under arrest for a violation of any subdivision
10 of section eleven hundred ninety-two of this article, the license or
11 permit to drive and any non-resident operating privilege shall, upon the
12 basis of such written report, be temporarily suspended by the court
13 without notice pending the determination of a hearing as provided in
14 paragraph (c) of this subdivision. Copies of such report must be trans-
15 mitted by the court to the commissioner and such transmittal may not be
16 waived even with the consent of all the parties. Such report shall be
17 forwarded to the commissioner within forty-eight hours of such arraign-
18 ment.
19 (4) The court or the police officer, in the case of a person under the
20 age of twenty-one alleged to be driving after having consumed alcohol,
21 shall provide such person with a scheduled hearing date, a waiver form,
22 and such other information as may be required by the commissioner. If a
23 hearing, as provided for in paragraph (c) of this subdivision, or subdi-
24 vision three of section eleven hundred ninety-four-a of this article, is
25 waived by such person, the commissioner shall immediately revoke the
26 license, permit, or non-resident operating privilege, as of the date of
27 receipt of such waiver in accordance with the provisions of paragraph
28 (d) of this subdivision.
29 (c) Hearings. Any person whose license or permit to drive or any non-
30 resident driving privilege has been suspended pursuant to paragraph (b)
31 of this subdivision is entitled to a hearing in accordance with a hear-
32 ing schedule to be promulgated by the commissioner. If the department
33 fails to provide for such hearing fifteen days after the date of the
34 arraignment of the arrested person, the license, permit to drive or
35 non-resident operating privilege of such person shall be reinstated
36 pending a hearing pursuant to this section. The hearing shall be limited
37 to the following issues: (1) did the police officer have reasonable
38 grounds to believe that such person had been driving in violation of any
39 subdivision of section eleven hundred ninety-two of this article; (2)
40 did the police officer make a lawful arrest of such person; (3) was such
41 person given sufficient warning, in clear or unequivocal language, prior
42 to such refusal that such refusal to submit to such chemical test or any
43 portion thereof, would result in the immediate suspension and subsequent
44 revocation of such person's license or operating privilege whether or
45 not such person is found guilty of the charge for which the arrest was
46 made; and (4) did such person refuse to submit to such chemical test or
47 any portion thereof. If, after such hearing, the hearing officer,
48 acting on behalf of the commissioner, finds on any one of said issues in
49 the negative, the hearing officer shall immediately terminate any
50 suspension arising from such refusal. If, after such hearing, the hear-
51 ing officer, acting on behalf of the commissioner finds all of the
52 issues in the affirmative, such officer shall immediately revoke the
53 license or permit to drive or any non-resident operating privilege in
54 accordance with the provisions of paragraph (d) of this subdivision. A
55 person who has had a license or permit to drive or non-resident operat-
56 ing privilege suspended or revoked pursuant to this subdivision may
A. 3981--B 5
1 appeal the findings of the hearing officer in accordance with the
2 provisions of article three-A of this chapter. Any person may waive the
3 right to a hearing under this section. Failure by such person to appear
4 for the scheduled hearing shall constitute a waiver of such hearing,
5 provided, however, that such person may petition the commissioner for a
6 new hearing which shall be held as soon as practicable.
7 (d) Sanctions. (1) Revocations. a. Any license which has been revoked
8 pursuant to paragraph (c) of this subdivision shall not be restored for
9 at least one year after such revocation, nor thereafter, except in the
10 discretion of the commissioner. However, no such license shall be
11 restored for at least eighteen months after such revocation, nor there-
12 after except in the discretion of the commissioner, in any case where
13 the person has had a prior revocation resulting from refusal to submit
14 to a chemical test, or has been convicted of or found to be in violation
15 of any subdivision of section eleven hundred ninety-two or section elev-
16 en hundred ninety-two-a of this article not arising out of the same
17 incident, within the five years immediately preceding the date of such
18 revocation; provided, however, a prior finding that a person under the
19 age of twenty-one has refused to submit to a chemical test pursuant to
20 subdivision three of section eleven hundred ninety-four-a of this arti-
21 cle shall have the same effect as a prior finding of a refusal pursuant
22 to this subdivision solely for the purpose of determining the length of
23 any license suspension or revocation required to be imposed under any
24 provision of this article, provided that the subsequent offense or
25 refusal is committed or occurred prior to the expiration of the
26 retention period for such prior refusal as set forth in paragraph (k) of
27 subdivision one of section two hundred one of this chapter.
28 b. Any license which has been revoked pursuant to paragraph (c) of
29 this subdivision or pursuant to subdivision three of section eleven
30 hundred ninety-four-a of this article, where the holder was under the
31 age of twenty-one years at the time of such refusal, shall not be
32 restored for at least one year, nor thereafter, except in the discretion
33 of the commissioner. Where such person under the age of twenty-one years
34 has a prior finding, conviction or youthful offender adjudication
35 resulting from a violation of section eleven hundred ninety-two or
36 section eleven hundred ninety-two-a of this article, not arising from
37 the same incident, such license shall not be restored for at least one
38 year or until such person reaches the age of twenty-one years, whichever
39 is the greater period of time, nor thereafter, except in the discretion
40 of the commissioner.
41 c. Any commercial driver's license which has been revoked pursuant to
42 paragraph (c) of this subdivision based upon a finding of refusal to
43 submit to a chemical test, where such finding occurs within or outside
44 of this state, shall not be restored for at least eighteen months after
45 such revocation, nor thereafter, except in the discretion of the commis-
46 sioner, but shall not be restored for at least three years after such
47 revocation, nor thereafter, except in the discretion of the commission-
48 er, if the holder of such license was operating a commercial motor vehi-
49 cle transporting hazardous materials at the time of such refusal. Howev-
50 er, such person shall be permanently disqualified from operating a
51 commercial motor vehicle in any case where the holder has a prior find-
52 ing of refusal to submit to a chemical test pursuant to this section or
53 has a prior conviction of any of the following offenses: any violation
54 of section eleven hundred ninety-two of this article; any violation of
55 subdivision one or two of section six hundred of this chapter; or has a
56 prior conviction of any felony involving the use of a motor vehicle
A. 3981--B 6
1 pursuant to paragraph (a) of subdivision one of section five hundred
2 ten-a of this chapter. Provided that the commissioner may waive such
3 permanent revocation after a period of ten years has expired from such
4 revocation provided:
5 (i) that during such ten year period such person has not been found to
6 have refused a chemical test pursuant to this section and has not been
7 convicted of any one of the following offenses: any violation of section
8 eleven hundred ninety-two of this article; refusal to submit to a chemi-
9 cal test pursuant to this section; any violation of subdivision one or
10 two of section six hundred of this chapter; or has a prior conviction of
11 any felony involving the use of a motor vehicle pursuant to paragraph
12 (a) of subdivision one of section five hundred ten-a of this chapter;
13 (ii) that such person provides acceptable documentation to the commis-
14 sioner that such person is not in need of alcohol or drug treatment or
15 has satisfactorily completed a prescribed course of such treatment; and
16 (iii) after such documentation is accepted, that such person is grant-
17 ed a certificate of relief from disabilities or a certificate of good
18 conduct pursuant to article twenty-three of the correction law by the
19 court in which such person was last penalized.
20 d. Upon a third finding of refusal and/or conviction of any of the
21 offenses which require a permanent commercial driver's license revoca-
22 tion, such permanent revocation may not be waived by the commissioner
23 under any circumstances.
24 (2) Civil penalties. Except as otherwise provided, any person whose
25 license, permit to drive, or any non-resident operating privilege is
26 revoked pursuant to the provisions of this section shall also be liable
27 for a civil penalty in the amount of five hundred dollars except that if
28 such revocation is a second or subsequent revocation pursuant to this
29 section issued within a five year period, or such person has been
30 convicted of a violation of any subdivision of section eleven hundred
31 ninety-two of this article within the past five years not arising out of
32 the same incident, the civil penalty shall be in the amount of seven
33 hundred fifty dollars. Any person whose license is revoked pursuant to
34 the provisions of this section based upon a finding of refusal to submit
35 to a chemical test while operating a commercial motor vehicle shall also
36 be liable for a civil penalty of five hundred fifty dollars except that
37 if such person has previously been found to have refused a chemical test
38 pursuant to this section while operating a commercial motor vehicle or
39 has a prior conviction of any of the following offenses while operating
40 a commercial motor vehicle: any violation of section eleven hundred
41 ninety-two of this article; any violation of subdivision two of section
42 six hundred of this chapter; or has a prior conviction of any felony
43 involving the use of a commercial motor vehicle pursuant to paragraph
44 (a) of subdivision one of section five hundred ten-a of this chapter,
45 then the civil penalty shall be seven hundred fifty dollars. No new
46 driver's license or permit shall be issued, or non-resident operating
47 privilege restored to such person unless such penalty has been paid. All
48 penalties collected by the department pursuant to the provisions of this
49 section shall be the property of the state and shall be paid into the
50 general fund of the state treasury.
51 (3) Effect of rehabilitation program. No period of revocation arising
52 out of this section may be set aside by the commissioner for the reason
53 that such person was a participant in the alcohol and drug rehabili-
54 tation program set forth in section eleven hundred ninety-six of this
55 article.
A. 3981--B 7
1 (e) Regulations. The commissioner shall promulgate such rules and
2 regulations as may be necessary to effectuate the provisions of subdivi-
3 sions one and two of this section.
4 (f) Evidence. Evidence of a refusal to submit to such chemical test or
5 any portion thereof shall be admissible in any trial, proceeding or
6 hearing based upon a violation of the provisions of section eleven
7 hundred ninety-two of this article but only upon a showing that the
8 person was given sufficient warning, in clear and unequivocal language,
9 of the effect of such refusal and that the person persisted in the
10 refusal.
11 (g) Results. Upon the request of the person who was tested, the
12 results of such test shall be made available to such person.]
13 3. Compulsory chemical tests. (a) Court ordered chemical tests.
14 Notwithstanding the provisions of subdivision two of this section, no
15 person who operates a motor vehicle in this state may refuse to submit
16 to a chemical test of one or more of the following: breath, blood, urine
17 or [saliva] oral/bodily fluids, for the purpose of determining the alco-
18 holic and/or drug content of the blood or oral/bodily fluids when a
19 court order for such chemical test has been issued in accordance with
20 the provisions of this subdivision.
21 (b) When authorized. Upon refusal by any person to submit to a chemi-
22 cal test or any portion thereof as described above, the test shall not
23 be given unless a police officer or a district attorney, as defined in
24 subdivision thirty-two of section 1.20 of the criminal procedure law,
25 requests and obtains a court order to compel a person to submit to a
26 chemical test to determine the alcoholic [or] and/or drug content of the
27 person's blood or oral/bodily fluids upon a finding of reasonable cause
28 to believe that:
29 (1) such person was the operator of a motor vehicle and in the course
30 of such operation [a person other than the operator was killed or
31 suffered serious physical injury as defined in section 10.00 of the
32 penal law]; and
33 (2) a. either such person operated the vehicle in violation of any
34 subdivision of section eleven hundred ninety-two of this article, or
35 b. a breath test and/or oral/bodily fluid test administered by a
36 police officer in accordance with paragraph (b) of subdivision one of
37 this section indicates that alcohol and/or a drug or drugs has been
38 consumed by such person; and
39 (3) such person has been placed under lawful arrest; and
40 (4) such person has refused to submit to a chemical test or any
41 portion thereof, requested in accordance with the provisions of para-
42 graph (a) of subdivision two of this section or is unable to give
43 consent to such a test.
44 (c) Reasonable cause; definition. For the purpose of this subdivision
45 "reasonable cause" shall be determined by viewing the totality of
46 circumstances surrounding the incident which, when taken together, indi-
47 cate that the operator was driving in violation of section eleven
48 hundred ninety-two of this article. Such circumstances may include, but
49 are not limited to: evidence that the operator was operating a motor
50 vehicle in violation of any provision of this article or any other
51 moving violation at the time of the incident; any visible indication of
52 alcohol or drug consumption or impairment by the operator; the existence
53 of an open container containing an alcoholic beverage and/or a drug or
54 drugs in or around the vehicle driven by the operator; any other
55 evidence surrounding the circumstances of the incident which indicates
56 that the operator has been operating a motor vehicle while impaired by
A. 3981--B 8
1 the consumption of alcohol or drugs or intoxicated at the time of the
2 incident.
3 (d) Court order; procedure. (1) [An application for a court order to
4 compel submission to a chemical test or any portion thereof, may be made
5 to any supreme court justice, county court judge or district court judge
6 in the judicial district in which the incident occurred, or if the inci-
7 dent occurred in the city of New York before any supreme court justice
8 or judge of the criminal court of the city of New York. Such application
9 may be communicated by telephone, radio or other means of electronic
10 communication, or in person.
11 (2) The applicant must provide identification by name and title and
12 must state the purpose of the communication. Upon being advised that an
13 application for a court order to compel submission to a chemical test is
14 being made, the court shall place under oath the applicant and any other
15 person providing information in support of the application as provided
16 in subparagraph three of this paragraph. After being sworn the applicant
17 must state that the person from whom the chemical test was requested was
18 the operator of a motor vehicle and in the course of such operation a
19 person, other than the operator, has been killed or seriously injured
20 and, based upon the totality of circumstances, there is reasonable cause
21 to believe that such person was operating a motor vehicle in violation
22 of any subdivision of section eleven hundred ninety-two of this article
23 and, after being placed under lawful arrest such person refused to
24 submit to a chemical test or any portion thereof, in accordance with the
25 provisions of this section or is unable to give consent to such a test
26 or any portion thereof. The applicant must make specific allegations of
27 fact to support such statement. Any other person properly identified,
28 may present sworn allegations of fact in support of the applicant's
29 statement.
30 (3) Upon being advised that an oral application for a court order to
31 compel a person to submit to a chemical test is being made, a judge or
32 justice shall place under oath the applicant and any other person
33 providing information in support of the application. Such oath or oaths
34 and all of the remaining communication must be recorded, either by means
35 of a voice recording device or verbatim stenographic or verbatim long-
36 hand notes. If a voice recording device is used or a stenographic record
37 made, the judge must have the record transcribed, certify to the accura-
38 cy of the transcription and file the original record and transcription
39 with the court within seventy-two hours of the issuance of the court
40 order. If the longhand notes are taken, the judge shall subscribe a copy
41 and file it with the court within twenty-four hours of the issuance of
42 the order.
43 (4)] If the court is satisfied that the requirements for the issuance
44 of a court order pursuant to the provisions of paragraph (b) of this
45 subdivision have been met, it may grant the application and issue an
46 order requiring the accused to submit to a chemical test to determine
47 the alcoholic and/or drug content of [his] such accused's blood [and]
48 and/or oral/bodily fluids and ordering the withdrawal of a blood and/or
49 oral/bodily fluid sample in accordance with the provisions of paragraph
50 (a) of subdivision four of this section. When a judge or justice deter-
51 mines to issue an order to compel submission to a chemical test based on
52 an oral application, the applicant therefor shall prepare the order in
53 accordance with the instructions of the judge or justice. In all cases
54 the order shall include the name of the issuing judge or justice, the
55 name of the applicant, and the date and time it was issued. It must be
A. 3981--B 9
1 signed by the judge or justice if issued in person, or by the applicant
2 if issued orally.
3 [(5)] (2) Any false statement by an applicant or any other person in
4 support of an application for a court order shall subject such person to
5 the offenses for perjury set forth in article two hundred ten of the
6 penal law.
7 [(6)] (3) The chief administrator of the courts shall establish a
8 schedule to provide that a sufficient number of judges or justices will
9 be available in each judicial district to hear oral applications for
10 court orders as permitted by this section.
11 (e) Administration of compulsory chemical test. An order issued pursu-
12 ant to the provisions of this subdivision shall require that a chemical
13 test to determine the alcoholic and/or drug content of the operator's
14 blood and/or oral/bodily fluid must be administered. The provisions of
15 paragraphs (a), (b) and (c) of subdivision four of this section shall be
16 applicable to any chemical test administered pursuant to this section.
17 § 4. The subparagraph heading and clauses a and b of subparagraph 7 of
18 paragraph (e) of subdivision 2 of section 1193 of the vehicle and traf-
19 fic law, the subparagraph heading as added by chapter 312 of the laws of
20 1994, clause a as amended by chapter 732 of the laws of 2006, and clause
21 b as separately amended by chapters 3 and 571 of the laws of 2002, are
22 amended to read as follows:
23 Suspension pending prosecution; excessive blood alcohol content or
24 impairment by a drug or drugs. a. Except as provided in clause a-1 of
25 this subparagraph, a court shall suspend a driver's license, pending
26 prosecution, of any person charged with a violation of subdivision two,
27 two-a, three, four or four-a of section eleven hundred ninety-two of
28 this article who, at the time of arrest, is alleged to have had .08 of
29 one percent or more by weight of alcohol in such driver's blood or is
30 alleged to have been impaired by the ingestion of a drug or drugs as
31 shown by chemical analysis of blood, breath, urine or [saliva]
32 oral/bodily fluid, made pursuant to subdivision two or three of section
33 eleven hundred ninety-four of this article, or the driver makes a state-
34 ment admitting to driving while intoxicated by alcohol or any substance
35 or combination of substances or while impaired by a drug or drugs.
36 b. The suspension occurring under clause a of this subparagraph shall
37 occur no later than at the conclusion of all proceedings required for
38 the arraignment and the suspension occurring under clause a-1 of this
39 subparagraph shall occur immediately after the holder's first appearance
40 before the court on the charge which shall, whenever possible, be the
41 next regularly scheduled session of the court after the arrest or at the
42 conclusion of all proceedings required for the arraignment; provided,
43 however, that if the results of any test administered pursuant to
44 section eleven hundred ninety-four of this article are not available
45 within such time period, the complainant police officer or other public
46 servant shall transmit such results to the court at the time they become
47 available, and the court shall, as soon as practicable following the
48 receipt of such results and in compliance with the requirements of this
49 subparagraph, suspend such license. In order for the court to impose
50 such suspension it must find that the accusatory instrument conforms to
51 the requirements of section 100.40 of the criminal procedure law and
52 there exists reasonable cause to believe either that (a) the holder
53 operated a motor vehicle while such holder had .08 of one percent or
54 more by weight of alcohol in [his or her] such holder's blood as was
55 shown by chemical analysis of such person's blood, breath, urine or
56 [saliva] oral/bodily fluid, or was impaired by the ingestion of a drug
A. 3981--B 10
1 or drugs as supported by such chemical test analysis, made pursuant to
2 the provisions of section eleven hundred ninety-four of this article or
3 by an evaluation conducted by a certified drug reconciliation expert, or
4 any portion thereof, or the driver makes a statement admitting to driv-
5 ing while intoxicated by alcohol, a substance or combination of
6 substances or while impaired by a drug or drugs; or (b) the person was
7 the holder of a class DJ or MJ learner's permit or a class DJ or MJ
8 driver's license and operated a motor vehicle while such holder was in
9 violation of subdivision one, two and/or three of section eleven hundred
10 ninety-two of this article. At the time of such license suspension the
11 holder shall be entitled to an opportunity to make a statement regarding
12 these two issues and to present evidence tending to rebut the court's
13 findings.
14 § 5. Section 1192 of the vehicle and traffic law is amended by adding
15 two new subdivisions 13 and 14 to read as follows:
16 13. It shall be an affirmative defense to a charge under subdivision
17 four or four-a of this section that the operator suffered an allergic
18 reaction or medical emergency rather than being impaired by a substance
19 or combination of substances. The defendant shall be subject to the
20 rules of reciprocal discovery under article two hundred forty-five of
21 the criminal procedure law for any medical records or documentation
22 related to the affirmative defense. Provided, however, that no defense
23 shall be available if any such consumed or ingested substance is
24 contained in section thirty-three hundred six of the public health law.
25 14. The commissioner and the commissioner of the division of criminal
26 justice services shall collect data on the number of traffic stops,
27 arrests and convictions for driving under the influence of drugs or
28 combination of drugs and alcohol under subdivision four or four-a of
29 this section. It shall report the number of traffic stops, arrests and
30 convictions by race, sex, age and national origin and provide an annual
31 report to the governor, the speaker of the assembly and the temporary
32 president of the senate.
33 § 6. This act shall take effect on the first of November next succeed-
34 ing the date on which it shall have become a law and shall expire and be
35 deemed repealed 5 years after such effective date.
