STATE OF NEW YORK
________________________________________________________________________
3127
2023-2024 Regular Sessions
IN SENATE
January 27, 2023
___________
Introduced by Sen. MANNION -- read twice and ordered printed, and when
printed to be committed to the Committee on Transportation
AN ACT to amend the vehicle and traffic law and the navigation law, in
relation to implementing oral fluid tests
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 1194 of the vehicle and traffic
2 law is amended by adding a new paragraph (c) to read as follows:
3 (c) Oral fluid test. (1) Definition. For the purposes of this article,
4 "oral fluid test" means a standardized preliminary saliva analysis test
5 validated by the National Highway Traffic Safety Administration for the
6 detection of cannabis. A field sobriety test is considered an oral fluid
7 test if it is administered in substantial compliance with the standards
8 prescribed by the National Highway Traffic Safety Administration.
9 (2) Oral fluid test. Every person operating a motor vehicle which has
10 been involved in an accident or which is operated in violation of any of
11 the provisions of this chapter shall, at the request of a police offi-
12 cer, submit to an oral fluid test to be administered by the police offi-
13 cer. If such test indicates the presence of cannabis in the person's
14 saliva, the police officer may request such operator to submit to a
15 chemical test in the manner set forth in subdivision two of this
16 section.
17 § 2. Subparagraph 2 of paragraph (a) of subdivision 2 of section 1194
18 of the vehicle and traffic law, as amended by chapter 196 of the laws of
19 1996, is amended to read as follows:
20 (2) within two hours after a breath test, as provided in paragraph (b)
21 of subdivision one of this section, and/or an oral fluid test, as
22 provided in paragraph (c) of subdivision one of this section, indicates
23 that alcohol and/or cannabis has been consumed by such person and in
24 accordance with the rules and regulations established by the police
25 force of which the officer is a member;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05316-01-3
S. 3127 2
1 § 3. Subparagraph 1 of paragraph (b) of subdivision 2 of section 1194
2 of the vehicle and traffic law, as amended by chapter 489 of the laws of
3 2017 and clause (A) as amended by chapter 27 of the laws of 2018, is
4 amended to read as follows:
5 (1) If: (A) such person having been placed under arrest; or (B) after
6 a breath test indicates the presence of alcohol in the person's system;
7 or (C) after an oral fluid test indicates the presence of cannabis in
8 the person's saliva; or (D) with regard to a person under the age of
9 twenty-one, there are reasonable grounds to believe that such person has
10 been operating a motor vehicle after having consumed alcohol in
11 violation of section eleven hundred ninety-two-a of this article; and
12 having thereafter been requested to submit to such chemical test and
13 having been informed that the person's license or permit to drive and
14 any non-resident operating privilege shall be immediately suspended and
15 subsequently revoked, or, for operators under the age of twenty-one for
16 whom there are reasonable grounds to believe that such operator has been
17 operating a motor vehicle after having consumed alcohol in violation of
18 section eleven hundred ninety-two-a of this article, shall be revoked
19 for refusal to submit to such chemical test or any portion thereof,
20 whether or not the person is found guilty of the charge for which such
21 person is arrested or detained, refuses to submit to such chemical test
22 or any portion thereof, unless a court order has been granted pursuant
23 to subdivision three of this section, the test shall not be given and a
24 written report of such refusal shall be immediately made by the police
25 officer before whom such refusal was made. Such report may be verified
26 by having the report sworn to, or by affixing to such report a form
27 notice that false statements made therein are punishable as a class A
28 misdemeanor pursuant to section 210.45 of the penal law and such form
29 notice together with the subscription of the deponent shall constitute a
30 verification of the report.
31 § 4. Subparagraph 2 of paragraph (b) of subdivision 3 of section 1194
32 of the vehicle and traffic law, as added by chapter 47 of the laws of
33 1988, is amended to read as follows:
34 (2) a. either such person operated the vehicle in violation of any
35 subdivision of section eleven hundred ninety-two of this article, or
36 b. a breath test administered by a police officer in accordance with
37 paragraph (b) of subdivision one of this section indicates that alcohol
38 has been consumed by such person, or
39 c. an oral fluid test administered by a police officer in accordance
40 with paragraph (c) of subdivision one of this section indicates the
41 presence of cannabis in the person's saliva; and
42 § 5. The vehicle and traffic law is amended by adding a new section
43 1195-a to read as follows:
44 § 1195-a. Oral fluid test evidence. 1. Admissibility. Upon the trial
45 of any action or proceeding arising out of actions alleged to have been
46 committed by any person arrested for a violation of any subdivision of
47 section eleven hundred ninety-two of this article, the court shall admit
48 the results of an oral fluid test pursuant to the provisions of section
49 eleven hundred ninety-four of this article.
50 2. Probative value. The following effect shall be given to evidence of
51 cannabis consumption, as determined by such tests, of a person arrested
52 for a violation of section eleven hundred ninety-two of this article:
53 (a) To assist the court or hearing officer in determining a challenge
54 to the validity of an arrest. This subdivision does not limit the intro-
55 duction of other competent evidence offered to establish the validity of
56 an arrest.
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1 (b) As evidence of the presence or nonpresence of cannabis in the
2 defendant's saliva if offered by the defendant to rebut testimony elic-
3 ited on cross-examination of a defense witness that an oral fluid test
4 of the defendant's saliva showed the presence of cannabis that was not
5 found to be present when a chemical test of the defendant's blood or
6 urine was administered under section eleven hundred ninety-four of this
7 article.
8 (c) As evidence of the presence or nonpresence of cannabis in the
9 defendant's saliva if offered by the prosecution to rebut testimony
10 elicited on cross-examination of a prosecution witness that an oral
11 fluid test of the defendant's saliva showed no presence of cannabis that
12 was found to be present when a chemical test of the defendant's blood or
13 urine was administered under section eleven hundred ninety-four of this
14 article.
15 3. Suppression. A defendant who has been compelled to submit to an
16 oral fluid test pursuant to the provisions of paragraph (c) of subdivi-
17 sion one of section eleven hundred ninety-four of this article may move
18 for the suppression of such evidence in accordance with article seven
19 hundred ten of the criminal procedure law on the grounds that the order
20 was obtained and the test administered in violation of the provisions of
21 such subdivision or any other applicable law.
22 § 6. Subdivision 6 of section 49-a of the navigation law is amended by
23 adding a new paragraph (c) to read as follows:
24 (c) Oral fluid test. (1) Definition. For the purposes of this article,
25 "oral fluid test" means a standardized preliminary saliva analysis test
26 validated by the National Highway Traffic Safety Administration for the
27 detection of cannabis. A field sobriety test is considered an oral fluid
28 test if it is administered in substantial compliance with the standards
29 prescribed by the National Highway Traffic Safety Administration.
30 (2) Oral fluid test. Every person operating a vessel on the waters of
31 the state which has been involved in an accident or which is operated in
32 violation of any of the provisions of this section shall, at the request
33 of a police officer, submit to an oral fluid test to be administered by
34 the police officer. If such test indicates the presence of cannabis in
35 the person's saliva, the police officer may request such operator to
36 submit to a chemical test in the manner set forth in subdivision seven
37 of this section.
38 § 7. Paragraphs (a) and (b) of subdivision 7 of section 49-a of the
39 navigation law, as added by chapter 805 of the laws of 1992, are amended
40 to read as follows:
41 (a) Any person who operates a vessel on the waters of the state shall
42 be requested to consent to a chemical test of one or more of the follow-
43 ing: breath, blood, urine, or saliva for the purpose of determining the
44 alcoholic or drug content of his blood, provided that such test is
45 administered at the direction of a police officer: (1) having reasonable
46 cause to believe such person to have been operating in violation of this
47 subdivision or paragraph (a), (b), (c), (d) or (e) of subdivision two of
48 this section and within two hours after such person has been placed
49 under arrest for any such violation or (2) within two hours after a
50 breath test as provided in paragraph (b) of subdivision six of this
51 section indicates that alcohol has been consumed by such person or (3)
52 within two hours after an oral fluid test as provided in paragraph (c)
53 of subdivision six of this section indicates the presence of cannabis in
54 the person's saliva and in accordance with the rules and regulations
55 established by the police force of which the officer is a member.
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1 (b) If such person having been placed under arrest or after a breath
2 test indicates the presence of alcohol in the person's system or after
3 an oral fluid test indicates the presence of cannabis in the person's
4 saliva and having thereafter been requested to submit to such chemical
5 test and having been informed that the person's privilege to operate a
6 vessel shall be immediately suspended for refusal to submit to such
7 chemical test or any portion thereof, whether or not the person is found
8 guilty of the charge for which such person is arrested, refuses to
9 submit to such chemical test or any portion thereof, unless a court
10 order has been granted pursuant to subdivision eight of this section,
11 the test shall not be given and a written report of such refusal shall
12 be immediately made by the police officer before whom such refusal was
13 made. Such report may be verified by having the report sworn to, or by
14 affixing to such report a form notice that false statements made therein
15 are punishable as a class A misdemeanor pursuant to section 210.45 of
16 the penal law and such form notice together with the subscription of the
17 deponent shall constitute a verification of the report. The report of
18 the police officer shall set forth reasonable grounds to believe such
19 arrested person to have been operating a vessel in violation of any
20 paragraph of subdivision two of this section, that said person had
21 refused to submit to such chemical test, and that no chemical test was
22 administered pursuant to the requirements of subdivision eight of this
23 section. The report shall be presented to the court upon the arraignment
24 of the arrested person. The privilege to operate a vessel shall, upon
25 the basis of such written report, be temporarily suspended by the court
26 without notice pending the determination of a hearing as provided here-
27 in. Copies of such report must be transmitted by the court to the
28 commissioner of parks, recreation and historic preservation and the
29 commissioner of motor vehicles and such transmittal may not be waived
30 even with the consent of all the parties. Such report shall be forwarded
31 to each commissioner within forty-eight hours of such arraignment. The
32 court shall provide such person with a hearing date schedule, a waiver
33 form, and such other information as may be required by the commissioner
34 of motor vehicles. If a hearing, as provided for in paragraph (c) of
35 this subdivision, is waived by such person, the commissioner of motor
36 vehicles shall immediately suspend the privilege to operate a vessel, as
37 of the date of receipt of such waiver in accordance with the provisions
38 of paragraph (d) of this subdivision.
39 § 8. Paragraph (a) of subdivision 7 of section 49-a of the navigation
40 law, as amended by chapter 688 of the laws of 2022, is amended to read
41 as follows:
42 (a) Any person who operates a vessel on the waters of the state shall
43 be requested to consent to a chemical test of one or more of the follow-
44 ing: breath, blood, urine, or saliva for the purpose of determining the
45 alcoholic or drug content of [his] the person's blood, provided that
46 such test is administered at the direction of a police officer: (1)
47 having reasonable cause to believe such person to have been operating in
48 violation of this subdivision or paragraph (a), (b), (c), (d), (e) or
49 (e-1) of subdivision two of this section and within two hours after such
50 person has been placed under arrest for any such violation or (2) within
51 two hours after a breath test as provided in paragraph (b) of subdivi-
52 sion six of this section indicates that alcohol has been consumed by
53 such person or (3) within two hours after an oral fluid test as provided
54 in paragraph (c) of subdivision six of this section indicates the pres-
55 ence of cannabis in the person's saliva and in accordance with the rules
S. 3127 5
1 and regulations established by the police force of which the officer is
2 a member.
3 § 9. Subparagraph 2 of paragraph (b) of subdivision 8 of section 49-a
4 of the navigation law, as added by chapter 805 of the laws of 1992, is
5 amended to read as follows:
6 (2) (i) either such person operated the vessel in violation of any
7 paragraph of subdivision two of this section, or
8 (ii) a breath test administered by a police officer in accordance with
9 subdivision six of this section indicates that alcohol has been consumed
10 by such person, or
11 (iii) an oral fluid test administered by a police officer in accord-
12 ance with subdivision six of this section indicates the presence of
13 cannabis in the person's saliva; and
14 § 10. This act shall take effect on the ninetieth day after it shall
15 have become a law; provided, however, that section eight of this act
16 shall take effect on the same date and in the same manner as section 3
17 of chapter 688 of the laws of 2022, takes effect. Effective immediate-
18 ly, the addition, amendment and/or repeal of any rule or regulation
19 necessary for the implementation of this act on its effective date are
20 authorized to be made and completed on or before such effective date.
