Amd 70.02, 70.06 & 70.25, Pen L; amd 1194, 1193, 600 & 114-a, V & T L; amd 160.10 & 30.30, CP L
Amends provisions involving the arrest, prosecution, sentencing and penalties for offenses involving vehicular assault, manslaughter and homicide; removes certain barriers to prosecution for operating a vehicle under the influence of drugs or alcohol.
STATE OF NEW YORK
________________________________________________________________________
6608
2023-2024 Regular Sessions
IN SENATE
April 28, 2023
___________
Introduced by Sen. PALUMBO -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the vehicle and traffic law and the crim-
inal procedure law, in relation to arrest, prosecution, sentencing and
penalties for offenses involving vehicular assault, manslaughter and
homicide and operating a vehicle under the influence of drugs or alco-
hol
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as "Andrew's law".
2 § 2. Subdivision 1 of section 70.02 of the penal law, as separately
3 amended by chapters 764 and 765 of the laws of 2005, paragraph (a) as
4 amended by chapter 189 of the laws of 2018, paragraph (b) as amended by
5 chapter 94 of the laws of 2020, paragraph (c) as amended by chapter 134
6 of the laws of 2019, and paragraph (d) as amended by chapter 7 of the
7 laws of 2007, is amended to read as follows:
8 1. Definition of a violent felony offense. A violent felony offense is
9 a class B violent felony offense, a class C violent felony offense, a
10 class D violent felony offense, or a class E violent felony offense,
11 defined as follows:
12 (a) Class B violent felony offenses: an attempt to commit the class
13 A-I felonies of murder in the second degree as defined in section
14 125.25, kidnapping in the first degree as defined in section 135.25, and
15 arson in the first degree as defined in section 150.20; aggravated
16 vehicular homicide as defined in section 125.14, manslaughter in the
17 first degree as defined in section 125.20, aggravated manslaughter in
18 the first degree as defined in section 125.22, rape in the first degree
19 as defined in section 130.35, criminal sexual act in the first degree as
20 defined in section 130.50, aggravated sexual abuse in the first degree
21 as defined in section 130.70, course of sexual conduct against a child
22 in the first degree as defined in section 130.75; assault in the first
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11071-01-3
S. 6608 2
1 degree as defined in section 120.10, kidnapping in the second degree as
2 defined in section 135.20, burglary in the first degree as defined in
3 section 140.30, arson in the second degree as defined in section 150.15,
4 robbery in the first degree as defined in section 160.15, sex traffick-
5 ing as defined in paragraphs (a) and (b) of subdivision five of section
6 230.34, sex trafficking of a child as defined in section 230.34-a,
7 incest in the first degree as defined in section 255.27, criminal
8 possession of a weapon in the first degree as defined in section 265.04,
9 criminal use of a firearm in the first degree as defined in section
10 265.09, criminal sale of a firearm in the first degree as defined in
11 section 265.13, aggravated assault upon a police officer or a peace
12 officer as defined in section 120.11, gang assault in the first degree
13 as defined in section 120.07, intimidating a victim or witness in the
14 first degree as defined in section 215.17, hindering prosecution of
15 terrorism in the first degree as defined in section 490.35, criminal
16 possession of a chemical weapon or biological weapon in the second
17 degree as defined in section 490.40, and criminal use of a chemical
18 weapon or biological weapon in the third degree as defined in section
19 490.47.
20 (b) Class C violent felony offenses: an attempt to commit any of the
21 class B felonies set forth in paragraph (a) of this subdivision; aggra-
22 vated criminally negligent homicide as defined in section 125.11, vehic-
23 ular manslaughter in the first degree as defined in section 125.13,
24 aggravated manslaughter in the second degree as defined in section
25 125.21, aggravated sexual abuse in the second degree as defined in
26 section 130.67, aggravated vehicular assault as defined in section
27 120.04-a, assault on a peace officer, police officer, firefighter or
28 emergency medical services professional as defined in section 120.08,
29 assault on a judge as defined in section 120.09, gang assault in the
30 second degree as defined in section 120.06, strangulation in the first
31 degree as defined in section 121.13, aggravated strangulation as defined
32 in section 121.13-a, burglary in the second degree as defined in section
33 140.25, robbery in the second degree as defined in section 160.10, crim-
34 inal possession of a weapon in the second degree as defined in section
35 265.03, criminal use of a firearm in the second degree as defined in
36 section 265.08, criminal sale of a firearm in the second degree as
37 defined in section 265.12, criminal sale of a firearm with the aid of a
38 minor as defined in section 265.14, aggravated criminal possession of a
39 weapon as defined in section 265.19, soliciting or providing support for
40 an act of terrorism in the first degree as defined in section 490.15,
41 hindering prosecution of terrorism in the second degree as defined in
42 section 490.30, and criminal possession of a chemical weapon or biolog-
43 ical weapon in the third degree as defined in section 490.37.
44 (c) Class D violent felony offenses: an attempt to commit any of the
45 class C felonies set forth in paragraph (b) of this subdivision; reck-
46 less assault of a child as defined in section 120.02, vehicular assault
47 in the first degree as defined in section 120.04, assault in the second
48 degree as defined in section 120.05, menacing a police officer or peace
49 officer as defined in section 120.18, stalking in the first degree[,] as
50 defined in subdivision one of section 120.60, strangulation in the
51 second degree as defined in section 121.12, vehicular manslaughter in
52 the second degree as defined in section 125.12, rape in the second
53 degree as defined in section 130.30, criminal sexual act in the second
54 degree as defined in section 130.45, sexual abuse in the first degree as
55 defined in section 130.65, course of sexual conduct against a child in
56 the second degree as defined in section 130.80, aggravated sexual abuse
S. 6608 3
1 in the third degree as defined in section 130.66, facilitating a sex
2 offense with a controlled substance as defined in section 130.90, labor
3 trafficking as defined in paragraphs (a) and (b) of subdivision three of
4 section 135.35, criminal possession of a weapon in the third degree as
5 defined in subdivision five, six, seven, eight, nine or ten of section
6 265.02, criminal sale of a firearm in the third degree as defined in
7 section 265.11, intimidating a victim or witness in the second degree as
8 defined in section 215.16, soliciting or providing support for an act of
9 terrorism in the second degree as defined in section 490.10, and making
10 a terroristic threat as defined in section 490.20, falsely reporting an
11 incident in the first degree as defined in section 240.60, placing a
12 false bomb or hazardous substance in the first degree as defined in
13 section 240.62, placing a false bomb or hazardous substance in a sports
14 stadium or arena, mass transportation facility or enclosed shopping mall
15 as defined in section 240.63, aggravated unpermitted use of indoor pyro-
16 technics in the first degree as defined in section 405.18, and criminal
17 manufacture, sale, or transport of an undetectable firearm, rifle or
18 shotgun as defined in section 265.50.
19 (d) Class E violent felony offenses: an attempt to commit any of the
20 felonies of criminal possession of a weapon in the third degree as
21 defined in subdivision five, six, seven or eight of section 265.02 as a
22 lesser included offense of that section as defined in section 220.20 of
23 the criminal procedure law, vehicular assault in the second degree as
24 defined in section 120.03, persistent sexual abuse as defined in section
25 130.53, aggravated sexual abuse in the fourth degree as defined in
26 section 130.65-a, falsely reporting an incident in the second degree as
27 defined in section 240.55 and placing a false bomb or hazardous
28 substance in the second degree as defined in section 240.61.
29 § 3. Subdivision 2 of section 70.25 of the penal law, as amended by
30 chapter 56 of the laws of 1984, is amended to read as follows:
31 2. (a) When more than one sentence of imprisonment is imposed on a
32 person for two or more offenses committed through a single act or omis-
33 sion, or through an act or omission which in itself constituted one of
34 the offenses and also was a material element of the other, the
35 sentences, except if one or more of such sentences is for a violation of
36 section 270.20 of this chapter, must run concurrently.
37 (b) Notwithstanding paragraph (a) of this subdivision, the court may
38 impose consecutive sentences where: (i) more than one sentence of impri-
39 sonment is imposed on a person for two or more counts of section 120.03,
40 120.04, 120.04-a, subdivisions three and four of section 120.05, 120.10,
41 120.11, 125.10, 125.11, 125.12, 125.13, 125.14, 125.15, 125.20, 125.21,
42 125.22, 125.25; and (ii) such multiple counts were charged based upon
43 multiple victims suffering physical injury, serious physical injury or
44 death as a result of a single act or omission of the defendant.
45 § 4. Paragraph (a) of subdivision 2 of section 1194 of the vehicle and
46 traffic law, as amended by chapter 196 of the laws of 1996, is amended
47 to read as follows:
48 (a) When authorized. Any person who operates a motor vehicle in this
49 state shall be deemed to have given consent to a chemical test of one or
50 more of the following: breath, blood, urine, or saliva, for the purpose
51 of determining the alcoholic and/or drug content of the blood provided
52 that such test is administered by or at the direction of a police offi-
53 cer with respect to a chemical test of breath, urine or saliva or, with
54 respect to a chemical test of blood, at the direction of a police offi-
55 cer:
S. 6608 4
1 (1) having reasonable grounds to believe such person to have been
2 operating in violation of any subdivision of section eleven hundred
3 ninety-two of this article and within two hours after such person has
4 been placed under arrest for any such violation; or having reasonable
5 grounds to believe such person to have been operating in violation of
6 section eleven hundred ninety-two-a of this article and within two hours
7 after the stop of such person for any such violation[,];
8 (2) [within two hours after a breath test, as provided in paragraph
9 (b) of subdivision one of this section, indicates that alcohol has been
10 consumed by such person and in accordance with the rules and regulations
11 established by the police force of which the officer is a member;
12 (3)] for the purposes of this paragraph, "reasonable grounds" to
13 believe that a person has been operating a motor vehicle after having
14 consumed alcohol in violation of section eleven hundred ninety-two-a of
15 this article shall be determined by viewing the totality of circum-
16 stances surrounding the incident which, when taken together, indicate
17 that the operator was driving in violation of such subdivision. Such
18 circumstances may include any visible or behavioral indication of alco-
19 hol consumption by the operator, the existence of an open container
20 containing or having contained an alcoholic beverage in or around the
21 vehicle driven by the operator, or any other evidence surrounding the
22 circumstances of the incident which indicates that the operator has been
23 operating a motor vehicle after having consumed alcohol at the time of
24 the incident; or
25 [(4)] (3) notwithstanding any other provision of law to the contrary,
26 no person under the age of twenty-one shall be arrested for an alleged
27 violation of section eleven hundred ninety-two-a of this article.
28 However, a person under the age of twenty-one for whom a chemical test
29 is authorized pursuant to this paragraph may be temporarily detained by
30 the police solely for the purpose of requesting or administering such
31 chemical test whenever arrest without a warrant for a petty offense
32 would be authorized in accordance with the provisions of section 140.10
33 of the criminal procedure law or paragraph (a) of subdivision one of
34 this section.
35 § 5. Paragraph (b) of subdivision 3 of section 1194 of the vehicle and
36 traffic law, as added by chapter 47 of the laws of 1988, is amended to
37 read as follows:
38 (b) When authorized. Upon refusal by any person to submit to a chemi-
39 cal test or any portion thereof as described above, the test shall not
40 be given unless a police officer or a district attorney, as defined in
41 subdivision thirty-two of section 1.20 of the criminal procedure law,
42 requests and obtains a court order to compel a person to submit to a
43 chemical test to determine the alcoholic or drug content of the person's
44 blood upon a finding of reasonable cause to believe that:
45 (1) such person was the operator of a motor vehicle and in the course
46 of such operation a person other than the operator was killed or
47 suffered serious physical injury as defined in section 10.00 of the
48 penal law; and
49 (2) a. either such person operated the vehicle in violation of any
50 subdivision of section eleven hundred ninety-two of this article, or
51 b. a breath test administered by a police officer in accordance with
52 paragraph (b) of subdivision one of this section indicates that alcohol
53 has been consumed by such person; and
54 (3) [such person has been placed under lawful arrest; and
55 (4)] such person has refused to submit to a chemical test or field
56 test or any portion thereof, requested in accordance with the provisions
S. 6608 5
1 of paragraph (a) of subdivision two of this section or is unable to give
2 consent to such a test.
3 § 6. Paragraph (a) of subdivision 1 of section 70.06 of the penal law,
4 as amended by chapter 410 of the laws of 1979, is amended to read as
5 follows:
6 (a) A second felony offender is a person, other than a second violent
7 felony offender as defined in section 70.04 of this article, who stands
8 convicted of a felony defined in this chapter or in the vehicle and
9 traffic law, other than a class A-I felony, after having previously been
10 subjected to one or more predicate felony convictions as defined in
11 paragraph (b) of this subdivision.
12 § 7. Paragraph (b) of subdivision 1 of section 160.10 of the criminal
13 procedure law, as amended by chapter 762 of the laws of 1971, is amended
14 to read as follows:
15 (b) A misdemeanor defined in the penal law or the vehicle and traffic
16 law; or
17 § 8. Section 114-a of the vehicle and traffic law, as amended by chap-
18 ter 92 of the laws of 2021, is amended to read as follows:
19 § 114-a. Drug. The term "drug" when used in this chapter, means [and
20 includes] any substance that impairs the physical or mental abilities
21 necessary to operate a motor vehicle as a reasonable and prudent driver,
22 including but not limited to, any substance listed in section thirty-
23 three hundred six of the public health law and cannabis and concentrated
24 cannabis as defined in section 222.00 of the penal law.
25 § 9. Paragraph (e) of subdivision 2 of section 1193 of the vehicle and
26 traffic law is amended by adding a new subparagraph 8 to read as
27 follows:
28 (8) Suspension pending prosecution; drug impairment. Except as
29 provided in clause a-1 of subparagraph seven of this paragraph, a court
30 shall suspend a driver's license, pending prosecution, of any person
31 charged with a violation of subdivision four or four-a of section eleven
32 hundred ninety-two of this article who, at the time of arrest, is
33 alleged to have been driving while ability impaired by drugs.
34 § 10. Paragraph (a) of subdivision 3 of section 30.30 of the criminal
35 procedure law, as amended by section 1 of part KKK of chapter 59 of the
36 laws of 2019, is amended to read as follows:
37 (a) Subdivisions one and two of this section do not apply to a crimi-
38 nal action wherein the defendant is accused of an offense defined in
39 sections 125.10, 125.12, 125.13, 125.14, 125.15, 125.20, 125.25, 125.26
40 and 125.27 of the penal law.
41 § 11. Paragraph c of subdivision 2 of section 600 of the vehicle and
42 traffic law, as amended by chapter 497 of the laws of 2022, is amended
43 to read as follows:
44 c. A violation of the provisions of paragraph a of this subdivision
45 resulting solely from the failure of an operator to exhibit his or her
46 license and insurance identification card for the vehicle or exchange
47 the information required in such paragraph shall constitute a class B
48 misdemeanor punishable by a fine of not less than two hundred fifty nor
49 more than five hundred dollars in addition to any other penalties
50 provided by law. Any subsequent such violation shall constitute a class
51 A misdemeanor punishable by a fine of not less than five hundred nor
52 more than one thousand dollars in addition to any other penalties
53 provided by law. Any violation of the provisions of paragraph a of this
54 subdivision, other than for the mere failure of an operator to exhibit
55 his or her license and insurance identification card for such vehicle or
56 exchange the information required in such paragraph, shall constitute a
S. 6608 6
1 class A misdemeanor, punishable by a fine of not less than seven hundred
2 fifty dollars nor more than one thousand dollars in addition to any
3 other penalties provided by law. Any such violation committed by a
4 person after such person has previously been convicted of such a
5 violation shall constitute a class E felony, punishable by a fine of not
6 less than one thousand nor more than three thousand dollars in addition
7 to any other penalties provided by law. Any violation of the provisions
8 of paragraph a of this subdivision, other than for the mere failure of
9 an operator to exhibit his or her license and insurance identification
10 card for such vehicle or exchange the information required in such para-
11 graph, where the personal injury involved (i) results in serious phys-
12 ical injury, as defined in section 10.00 of the penal law, shall consti-
13 tute a class [E] D felony, punishable by a fine of not less than one
14 thousand nor more than five thousand dollars in addition to any other
15 penalties provided by law, or (ii) results in death shall constitute a
16 class [D] C felony punishable by a fine of not less than two thousand
17 nor more than five thousand dollars in addition to any other penalties
18 provided by law.
19 § 12. This act shall take effect on the one hundred twentieth day
20 after it shall have become a law.
