Includes within the class A misdemeanor of criminal possession of a weapon in the fourth degree, the possession of a firearm, rifle or shotgun, outside the home, while impaired or intoxicated by use of alcohol or drugs; increases maximum fine for such offense to $10,000; provides for chemical testing of certain persons for whom there is reasonable cause to believe are in violation of such provision; provides for revocation of firearms permit upon conviction or refusal of a chemical test.
STATE OF NEW YORK
________________________________________________________________________
5268--A
2011-2012 Regular Sessions
IN ASSEMBLY
February 15, 2011
___________
Introduced by M. of A. TITONE, CASTRO, M. MILLER, LAVINE, PAULIN, HOOP-
ER, COLTON, GIBSON, P. RIVERA -- Multi-Sponsored by -- M. of A. GOTT-
FRIED, HEVESI, ROBINSON, SCARBOROUGH -- read once and referred to the
Committee on Codes -- recommitted to the Committee on Codes in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the penal law, in relation to possession of a firearm,
rifle or shotgun while under the influence of alcohol or drugs
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 80.05 of the penal law, as amended
2 by chapter 669 of the laws of 1984, is amended to read as follows:
3 1. Class A misdemeanor. A sentence to pay a fine for a class A misde-
4 meanor shall be a sentence to pay an amount, fixed by the court, not
5 exceeding one thousand dollars, provided, however, that a sentence
6 imposed for a violation of:
7 (a) section 215.80 of this chapter may include a fine in an amount
8 equivalent to double the value of the property unlawfully disposed of in
9 the commission of the crime; and
10 (b) subdivision nine of section 265.01 of this chapter may include a
11 fine, fixed by the court, not exceeding ten thousand dollars.
12 § 2. Section 265.00 of the penal law is amended by adding a new subdi-
13 vision 24 to read as follows:
14 24. "Drug" means any controlled substance listed in section thirty-
15 three hundred six of the public health law.
16 § 3. Subdivisions 2, 4, 5, 6, 7 and 8 of section 265.01 of the penal
17 law, subdivision 2 as amended by chapter 220 of the laws of 1988, subdi-
18 vision 4 as amended by chapter 357 of the laws of 2011, subdivisions 5
19 and 6 as added by chapter 1041 of the laws of 1974, subdivision 7 as
20 added by chapter 807 of the laws of 1981 and subdivision 8 as added by
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04985-03-2
A. 5268--A 2
1 chapter 646 of the laws of 1986, are amended and a new subdivision 9 is
2 added to read as follows:
3 (2) He or she possesses any dagger, dangerous knife, dirk, razor,
4 stiletto, imitation pistol, or any other dangerous or deadly instrument
5 or weapon with intent to use the same unlawfully against another; or
6 (4) He or she possesses a rifle, shotgun, antique firearm, black
7 powder rifle, black powder shotgun, or any muzzle-loading firearm, and
8 has been convicted of a felony or serious offense; or
9 (5) He or she possesses any dangerous or deadly weapon and is not a
10 citizen of the United States; or
11 (6) He or she is a person who has been certified not suitable to
12 possess a rifle or shotgun, as defined in subdivision sixteen of section
13 265.00 of this article, and refuses to yield possession of such rifle or
14 shotgun upon the demand of a police officer. Whenever a person is certi-
15 fied not suitable to possess a rifle or shotgun, a member of the police
16 department to which such certification is made, or of the state police,
17 shall forthwith seize any rifle or shotgun possessed by such person. A
18 rifle or shotgun seized as herein provided shall not be destroyed, but
19 shall be delivered to the headquarters of such police department, or
20 state police, and there retained until the aforesaid certificate has
21 been rescinded by the director or physician in charge, or other disposi-
22 tion of such rifle or shotgun has been ordered or authorized by a court
23 of competent jurisdiction[.]; or
24 (7) He or she knowingly possesses a bullet containing an explosive
25 substance designed to detonate upon impact[.]; or
26 (8) He or she possesses any armor piercing ammunition with intent to
27 use the same unlawfully against another[.]; or
28 (9) (a) He or she possesses a firearm, rifle or shotgun outside of his
29 or her home while:
30 (i) he or she is in an intoxicated condition; or
31 (ii) he or she has .08 of one per centum or more by weight of alcohol
32 in the person's blood as shown by chemical analysis of such person's
33 blood, breath, urine or saliva, made pursuant to section 265.45 of this
34 article; or
35 (iii) his or her ability to safely possess such firearm, rifle or
36 shotgun is impaired by consumption of alcohol; or
37 (iv) his or her ability to safely possess such firearm, rifle or shot-
38 gun is impaired by use of any drug; or
39 (v) his or her ability to safely possess such firearm, rifle or shot-
40 gun is impaired by the combined influence of drugs or of alcohol and any
41 drug or drugs.
42 (b) A person may be convicted of a violation of subparagraph (i), (ii)
43 or (iii) of paragraph (a) of this subdivision, notwithstanding that the
44 charge laid before the court alleged a violation of subparagraph (i) or
45 (ii) of paragraph (a) of this subdivision, and regardless of whether or
46 not such conviction is based on a plea of guilty.
47 § 4. Paragraphs 3, 4, 5, 7, 7-a, 7-b, 7-e, 8, 9, 9-a, 10, 12, 13 and
48 13-a of subdivision a of section 265.20 of the penal law, paragraphs 3,
49 7-a and 7-b as amended by chapter 210 of the laws of 1999, paragraphs 4,
50 9 and 10 as amended by chapter 1041 of the laws of 1974, paragraph 5 as
51 amended by chapter 235 of the laws of 2007, paragraph 7 as amended by
52 chapter 180 of the laws of 1998, paragraph 7-e as amended by chapter 281
53 of the laws of 2006, paragraph 8 as amended by chapter 61 of the laws of
54 2010, paragraph 9-a as amended by chapter 608 of the laws of 1984, para-
55 graph 12 as added by chapter 90 of the laws of 1979, paragraph 13 as
A. 5268--A 3
1 amended by chapter 150 of the laws of 1988 and paragraph 13-a as added
2 by chapter 370 of the laws of 1986, are amended to read as follows:
3 3. Possession of a pistol or revolver by a person to whom a license
4 therefor has been issued as provided under section 400.00 or 400.01 of
5 this chapter; provided, that such a license shall not preclude a
6 conviction for [the] either offense defined in subdivision three or nine
7 of section 265.01 of this article.
8 4. Possession of a rifle, shotgun or longbow for use while hunting,
9 trapping or fishing, by a person, not a citizen of the United States,
10 carrying a valid license issued pursuant to section 11-0713 of the envi-
11 ronmental conservation law; provided that such possession in accordance
12 with this paragraph shall not preclude the application of the provision
13 of or a conviction of the offense defined in subdivision nine of section
14 265.01 of this article.
15 5. Possession of a rifle or shotgun by a person other than a person
16 who has been convicted of a class A-I felony or a violent felony
17 offense, as defined in subdivision one of section 70.02 of this chapter,
18 who has been convicted as specified in subdivision four of section
19 265.01 of this article to whom a certificate of good conduct has been
20 issued pursuant to section seven hundred three-b of the correction law;
21 provided that such possession in accordance with this paragraph shall
22 not preclude the application of the provision of or a conviction of the
23 offense defined in subdivision nine of section 265.01 of this article.
24 7. Possession, at an indoor or outdoor shooting range for the purpose
25 of loading and firing, of a rifle or shotgun, the propelling force of
26 which is gunpowder by a person under sixteen years of age but not under
27 twelve, under the immediate supervision, guidance and instruction of (a)
28 a duly commissioned officer of the United States army, navy, air force,
29 marine corps or coast guard, or of the national guard of the state of
30 New York; or (b) a duly qualified adult citizen of the United States who
31 has been granted a certificate as an instructor in small arms practice
32 issued by the United States army, navy, air force or marine corps, or by
33 the adjutant general of this state, or by the national rifle association
34 of America, a not-for-profit corporation duly organized under the laws
35 of this state; or (c) a parent, guardian, or a person over the age of
36 eighteen designated in writing by such parent or guardian who shall have
37 a certificate of qualification in responsible hunting, including safety,
38 ethics, and landowner relations-hunter relations, issued or honored by
39 the department of environmental conservation; or (d) an agent of the
40 department of environmental conservation appointed to conduct courses in
41 responsible hunting practices pursuant to article eleven of the environ-
42 mental conservation law; provided that such possession in accordance
43 with this paragraph shall not preclude the application of the provisions
44 of or a conviction of the offense defined in subdivision nine of section
45 265.01 of this article.
46 7-a. Possession and use, at an indoor or outdoor pistol range located
47 in or on premises owned or occupied by a duly incorporated organization
48 organized for conservation purposes or to foster proficiency in small
49 arms or at a target pistol shooting competition under the auspices of or
50 approved by the national rifle association for the purpose of loading
51 and firing the same, by a person duly licensed to possess a pistol or
52 revolver pursuant to section 400.00 or 400.01 of this chapter of a
53 pistol or revolver duly so licensed to another person who is present at
54 the time; provided that such possession and use in accordance with this
55 paragraph shall not preclude the application of the provisions of or a
A. 5268--A 4
1 conviction of the offense defined in subdivision nine of section 265.01
2 of this article.
3 7-b. Possession and use, at an indoor or outdoor pistol range located
4 in or on premises owned or occupied by a duly incorporated organization
5 organized for conservation purposes or to foster proficiency in small
6 arms or at a target pistol shooting competition under the auspices of or
7 approved by the national rifle association for the purpose of loading
8 and firing the same, by a person who has applied for a license to
9 possess a pistol or revolver and pre-license possession of same pursuant
10 to section 400.00 or 400.01 of this chapter, who has not been previously
11 denied a license, been previously convicted of a felony or serious
12 offense, and who does not appear to be, or pose a threat to be, a danger
13 to himself or to others, and who has been approved for possession and
14 use herein in accordance with section 400.00 or 400.01 of this chapter;
15 provided however, (a) that such possession and use shall be of a pistol
16 or revolver duly licensed to and shall be used under the supervision,
17 guidance and instruction of, a person specified in paragraph seven of
18 this subdivision [and provided further that], (b) such possession and
19 use be within the jurisdiction of the licensing officer with whom the
20 person has made application therefor or within the jurisdiction of the
21 superintendent of state police in the case of a retired sworn member of
22 the division of state police who has made an application pursuant to
23 section 400.01 of this chapter, and (c) such possession and use in
24 accordance with this paragraph shall not preclude the application of the
25 provisions of or a conviction of the offense defined in subdivision nine
26 of section 265.01 of this article.
27 7-e. Possession and use of a pistol or revolver, at an indoor or
28 outdoor pistol range located in or on premises owned or occupied by a
29 duly incorporated organization organized for conservation purposes or to
30 foster proficiency in small arms or at a target pistol shooting competi-
31 tion under the auspices of or approved by an association or organization
32 described in paragraph [7-a] seven-a of this subdivision for the purpose
33 of loading and firing the same by a person at least fourteen years of
34 age but under the age of twenty-one who has not been previously
35 convicted of a felony or serious offense, and who does not appear to be,
36 or pose a threat to be, a danger to himself or herself or to others;
37 provided however, that such possession shall be of a pistol or revolver
38 duly licensed to and shall be used under the immediate supervision,
39 guidance and instruction of, a person specified in paragraph seven of
40 this subdivision; and provided, further, that such possession and use in
41 accordance with this paragraph shall not preclude the application of the
42 provisions of or a conviction of the offense defined in subdivision nine
43 of section 265.01 of this article.
44 8. The manufacturer of machine-guns, firearm silencers, assault weap-
45 ons, large capacity ammunition feeding devices, disguised guns, pilum
46 ballistic knives, switchblade or gravity knives, billies or blackjacks
47 as merchandise, or as a transferee recipient of the same for repair,
48 lawful distribution or research and development, and the disposal and
49 shipment thereof direct to a regularly constituted or appointed state or
50 municipal police department, sheriff, [policeman] police officer or
51 other peace officer, or to a state prison, penitentiary, workhouse,
52 county jail or other institution for the detention of persons convicted
53 or accused of crime or held as witnesses in criminal cases, or to the
54 military service of this state or of the United States; or for the
55 repair and return of the same to the lawful possessor or for research
56 and development; provided that status as a manufacturer, or disposal and
A. 5268--A 5
1 shipment in accordance with this paragraph shall not preclude the appli-
2 cation of the provisions of or a conviction of the offense defined in
3 subdivision nine of section 265.01 of this article.
4 9. The regular and ordinary transport of firearms as merchandise,
5 provided that the person transporting such firearms, where he or she
6 knows or has reasonable means of ascertaining what he or she is trans-
7 porting, notifies in writing the police commissioner, police chief or
8 other law enforcement officer performing such functions at the place of
9 delivery, of the name and address of the consignee and the place of
10 delivery, and withholds delivery to the consignee for such reasonable
11 period of time designated in writing by such police commissioner, police
12 chief or other law enforcement officer as such official may deem neces-
13 sary for investigation as to whether the consignee may lawfully receive
14 and possess such firearms, provided, further, that such transport in
15 accordance with this paragraph shall not preclude the application of the
16 provisions of or a conviction of the offense defined in subdivision nine
17 of section 265.01 of this article.
18 9-a. a. Except as provided in [subdivision] subparagraph b [hereof] of
19 this paragraph, the regular and ordinary transport of pistols or revol-
20 vers by a manufacturer of firearms to whom a license as a dealer in
21 firearms has been issued pursuant to section 400.00 of this chapter, or
22 by an agent or employee of such manufacturer of firearms who is other-
23 wise duly licensed to carry a pistol or revolver and who is duly author-
24 ized in writing by such manufacturer of firearms to transport pistols or
25 revolvers on the date or dates specified, directly between places where
26 the manufacturer of firearms regularly conducts business provided such
27 pistols or revolvers are transported unloaded, in a locked opaque
28 container, provided that status as a manufacturer, or disposal and ship-
29 ment in accordance with this paragraph shall not preclude the applica-
30 tion of the provisions of or a conviction of the offense defined in
31 subdivision nine of section 265.01 of this article. For purposes of
32 this [subdivision] paragraph, places where the manufacturer of firearms
33 regularly conducts business [includes] include, but [is] are not limited
34 to places where the manufacturer of firearms regularly or customarily
35 conducts development or design of pistols or revolvers, or regularly or
36 customarily conducts tests on pistols or revolvers, or regularly or
37 customarily participates in the exposition of firearms to the public.
38 b. The transportation of such pistols or revolvers into, out of or
39 within the city of New York may be done only with the consent of the
40 police commissioner of the city of New York. To obtain such consent, the
41 manufacturer must notify the police commissioner in writing of the name
42 and address of the transporting manufacturer, or agent or employee of
43 the manufacturer who is authorized in writing by such manufacturer to
44 transport pistols or revolvers, the number, make and model number of the
45 firearms to be transported and the place where the manufacturer regular-
46 ly conducts business within the city of New York and such other informa-
47 tion as the commissioner may deem necessary. The manufacturer must not
48 transport such pistols and revolvers between the designated places of
49 business for such reasonable period of time designated in writing by the
50 police commissioner as such official may deem necessary for investi-
51 gation and to give consent. The police commissioner may not unreasonably
52 withhold his consent.
53 10. Engaging in the business of gunsmith or dealer in firearms by a
54 person to whom a valid license therefor has been issued pursuant to
55 section 400.00 of this chapter, provided that engaging in such business
56 in accordance with this paragraph shall not preclude the application of
A. 5268--A 6
1 the provisions of or a conviction of the offense defined in subdivision
2 nine of section 265.01 of this article.
3 12. Possession of a pistol or revolver by a person who is a member or
4 coach of an accredited college or university target pistol team while
5 transporting the pistol or revolver into or through New York state to
6 participate in a collegiate, olympic or target pistol shooting competi-
7 tion under the auspices of or approved by the national rifle associ-
8 ation, provided such pistol or revolver is unloaded and carried in a
9 locked carrying case and the ammunition therefor is carried in a sepa-
10 rate locked container, provided, further that such possession in accord-
11 ance with this paragraph shall not preclude the application of the
12 provisions of or a conviction of the offense defined in subdivision nine
13 of section 265.01 of this article.
14 13. Possession of pistols and revolvers by a person who is a nonresi-
15 dent of this state while attending or traveling to or from, an organized
16 competitive pistol match or league competition under auspices of, or
17 approved by, the National Rifle Association and in which he or she is a
18 competitor, within forty-eight hours of such event or by a person who is
19 a non-resident of the state while attending or traveling to or from an
20 organized match sanctioned by the International Handgun Metallic Silhou-
21 ette Association and in which he or she is a competitor, within forty-
22 eight hours of such event, provided that (a) he or she has not been
23 previously convicted of a felony or a crime which, if committed in New
24 York, would constitute a felony, (b) such possession in accordance with
25 this paragraph shall not preclude the application of the provisions of
26 or a conviction of the offense defined in subdivision nine of section
27 260.01 of this article, and [further provided] (c) that the pistols or
28 revolvers are transported unloaded in a locked opaque container together
29 with a copy of the match program, match schedule or match registration
30 card. Such documentation shall constitute prima facie evidence of
31 exemption, [providing] provided that such person also has in his or her
32 possession a pistol license or firearms registration card issued in
33 accordance with the laws of his or her place of residence. For purposes
34 of this [subdivision] paragraph, a person licensed in a jurisdiction
35 which does not authorize such license by a person who has been previous-
36 ly convicted of a felony shall be presumed to have no prior conviction.
37 The superintendent of state police shall annually review the laws of
38 jurisdictions within the United States and Canada with respect to the
39 applicable requirements for licensing or registration of firearms and
40 shall publish a list of those jurisdictions which prohibit possession of
41 a firearm by a person previously convicted of a felony or crimes which
42 if committed in New York state would constitute a felony.
43 13-a. Except in cities not wholly contained within a single county of
44 the state, possession of pistols and revolvers by a person who is a
45 nonresident of this state while attending or traveling to or from, an
46 organized convention or exhibition for the display of or education about
47 firearms, which is conducted under auspices of, or approved by, the
48 National Rifle Association and in which he or she is a registered
49 participant, within forty-eight hours of such event, provided that (a)
50 he or she has not been previously convicted of a felony or a crime
51 which, if committed in New York, would constitute a felony, (b) such
52 possession in accordance with this paragraph shall not preclude the
53 application of the provisions of or a conviction of the offense defined
54 in subdivision nine of section 265.01 of this article, and [further
55 provided that] (c) the pistols or revolvers are transported unloaded in
56 a locked opaque container together with a copy of the convention or
A. 5268--A 7
1 exhibition program, convention or exhibition schedule or convention or
2 exhibition registration card. Such documentation shall constitute prima
3 facie evidence of exemption, [providing] provided that such person also
4 has in his or her possession a pistol license or firearms registration
5 card issued in accordance with the laws of his or her place of resi-
6 dence. For purposes of this paragraph, a person licensed in a jurisdic-
7 tion which does not authorize such license by a person who has been
8 previously convicted of a felony shall be presumed to have no prior
9 conviction. The superintendent of state police shall annually review the
10 laws of jurisdictions within the United States and Canada with respect
11 to the applicable requirements for licensing or registration of firearms
12 and shall publish a list of those jurisdictions which prohibit
13 possession of a firearm by a person previously convicted of a felony or
14 crimes which if committed in New York state would constitute a felony.
15 § 5. The penal law is amended by adding two new sections 265.45 and
16 265.50 to read as follows:
17 § 265.45 Testing.
18 1. Field testing. Every person who possesses a firearm, rifle or shot-
19 gun which has been brandished, displayed outside a holster, discharged
20 or otherwise used (other than in the person's home, at an indoor or
21 outdoor shooting range, or in an area where hunting is permitted with
22 the weapon), or which is possessed, displayed or discharged in violation
23 of any provision of this chapter shall, at the request of a police offi-
24 cer, submit to a breath test to be administered by the police officer,
25 unless such person demonstrates to such police officer's satisfaction
26 that he or she is not subject to the provisions of subdivision nine of
27 section 265.01 of this article. If such test indicates that such posses-
28 sor has consumed alcohol, the police officer may request such possessor
29 to submit to a chemical test in the manner set forth in subdivision two
30 of this section.
31 2. Chemical tests. (a) When authorized. Any person who possesses a
32 firearm, rifle or shotgun in this state, other than in such person's
33 home, shall be deemed to have given consent to a chemical test of one or
34 more of the following: breath, blood, urine, or saliva, for the purpose
35 of determining the alcoholic and/or drug content of the blood provided
36 that such test is administered by or at the direction of a police offi-
37 cer with respect to a chemical test of breath, urine or saliva or, with
38 respect to a chemical test of blood, at the direction of a police offi-
39 cer:
40 (1) having reasonable grounds to believe such person possessed a
41 firearm, rife or shotgun in violation of subdivision nine of section
42 265.01 of this article and within two hours after such person has been
43 placed under arrest for any such violation; or
44 (2) within two hours after a breath test, as provided in subdivision
45 one of this section, indicates that alcohol has been consumed by such
46 person and in accordance with the rules and regulations established by
47 the law enforcement agency of which the officer is a member.
48 For the purposes of this paragraph, "reasonable grounds" to believe
49 that a person possessed a firearm, rifle or shotgun in violation of
50 subdivision nine of section 265.01 of this article shall be determined
51 by viewing the totality of circumstances surrounding the incident which,
52 when taken together, indicate that the possession violated such subdivi-
53 sion. Such circumstances may include any visible or behavioral indi-
54 cation of alcohol or drug consumption by such person, the existence of
55 an open container containing or having contained an alcoholic beverage
56 in or around the vicinity of such person, or any other evidence
A. 5268--A 8
1 surrounding the circumstances of the incident which indicates that the
2 person was in possession of a firearm, rifle or shotgun after having
3 consumed alcohol or drugs at the time of the incident.
4 (b) Report of refusal. (1) If: (A) such person having been placed
5 under arrest; or (B) after a breath test indicates the presence of alco-
6 hol in the person's system; and the person having thereafter been
7 requested to submit to such chemical test and having been informed that
8 any license held by such person to possess a firearm, rifle or shotgun
9 shall be subject to suspension or revocation for refusal to submit to
10 such test whether or not the person is found guilty of the charge for
11 which such person is arrested or detained, then if such person refuses
12 to submit to such chemical test or any portion thereof, unless a court
13 order has been granted pursuant to subdivision three of this section,
14 the test shall not be given and a written report of such refusal shall
15 be immediately made by the police officer before whom such refusal was
16 made. Such report may be verified by having the report sworn to, or by
17 affixing to such report a form notice that false statements made therein
18 are punishable as a class A misdemeanor pursuant to section 210.45 of
19 this chapter and such form notice together with the subscription of the
20 deponent shall constitute a verification of the report.
21 (2) The report of the police officer shall set forth reasonable
22 grounds to believe such arrested person had possessed a firearm, rifle
23 or shotgun in violation of subdivision nine of section 265.01 of this
24 article, that said person had refused to submit to such chemical test,
25 and that no chemical test was administered pursuant to the requirements
26 of subdivision three of this section. The report shall be presented to
27 the court upon arraignment of an arrested person, and shall be transmit-
28 ted by such court to the appropriate licensing authority within forty-
29 eight hours of the arraignment. Such transmittal shall not be waived
30 even with the consent of all parties.
31 (3) The license may be temporarily suspended by such licensing author-
32 ity pending the determination of a hearing, in accordance with the rules
33 and procedures of such authority, for refusal to submit to a test in
34 either the circumstances described in subdivision one of this section or
35 the circumstances described in subparagraph one of this paragraph. Any
36 such refusal may, after such hearing or if uncontested, constitute
37 grounds for continued suspension or revocation of such license in
38 accordance with such rules and procedures.
39 (4) Nothing in this section shall be deemed to restrict the discretion
40 of any licensing authority or the discretion of any judge or justice of
41 a court of record under subdivision eleven of section 400.00 of this
42 chapter to suspend or revoke a license because of an alleged violation
43 of subdivision nine of section 265.01 of this article, or for any other
44 reason other than refusal to submit to a test as required by this subdi-
45 vision or subdivision one of this section.
46 (c) Regulations. A licensing authority or law enforcement agency may
47 promulgate such rules and regulations as may be necessary to effectuate
48 the provisions of this subdivision and subdivision one of this section.
49 (d) Evidence. Evidence of a refusal to submit to such chemical test or
50 any portion thereof shall be admissible in any trial, proceeding or
51 hearing based upon an alleged violation of the provisions of subdivision
52 nine of section 265.01 of this article but only upon a showing that the
53 person was given sufficient warning, in clear and unequivocal language,
54 of the effect of such refusal and that the person persisted in the
55 refusal. Such showing shall be satisfied by submission of a verified
56 report of refusal as provided in subparagraph one of paragraph (b) of
A. 5268--A 9
1 subdivision two of this section containing a statement that such person
2 was informed that his or her license shall be subject to suspension or
3 revocation whether or not the person is found guilty of the charge for
4 which such person is arrested or detained if such person refuses to
5 submit to such test.
6 (e) Results. Upon the request of the person who was tested, the
7 results of such test shall be made available to such person.
8 3. Compulsory chemical tests. (a) Court ordered chemical tests.
9 Notwithstanding the provisions of subdivision two of this section, no
10 person subject to the provisions of subdivision nine of section 265.01
11 of this article who possesses a firearm, rifle or shotgun (other than in
12 the person's home, at an indoor or outdoor shooting range, or an area
13 where hunting is permitted with the weapon) may refuse to submit to a
14 chemical test of one or more of the following: breath, blood, urine or
15 saliva, for the purpose of determining the alcoholic and/or drug content
16 of the blood when a court order for such chemical test has been issued
17 in accordance with the provisions of this subdivision.
18 (b) When authorized. Upon refusal by any person to submit to a chemi-
19 cal test or any portion thereof as described in paragraph (a) of this
20 subdivision, the test shall not be given unless a police officer or a
21 district attorney, as defined in subdivision thirty-two of section 1.20
22 of the criminal procedure law, requests and obtains a court order to
23 compel a person to submit to a chemical test to determine the alcoholic
24 or drug content of the person's blood upon a finding of reasonable cause
25 to believe that:
26 (1) such person possessed a firearm, rifle or shotgun with which
27 another person was killed or suffered physical injury; and
28 (2) (A) either such person possessed the firearm, rifle or shotgun in
29 violation of subdivision nine of section 265.01 of this article, or
30 (B) a breath test administered by a police officer in accordance with
31 subdivision one of this section indicates that alcohol has been consumed
32 by such person; and
33 (3) such person has been placed under lawful arrest; and
34 (4) such person has refused to submit to a chemical test or any
35 portion thereof, requested in accordance with the provisions of para-
36 graph (a) of subdivision two of this section or is unable to give
37 consent to such a test.
38 (c) Reasonable cause; definition. For the purpose of this subdivision
39 "reasonable cause" shall be determined by viewing the totality of
40 circumstances surrounding the incident which, when taken together, indi-
41 cate that the person possessed a firearm, rifle or shotgun in violation
42 of subdivision nine of section 265.01 of this article. Such circum-
43 stances may include, but are not limited to: evidence that such person
44 was brandishing or using the firearm, rifle or shotgun in violation of
45 any provision of this chapter or committing any other crime at the time
46 of the incident; any visible indication of alcohol or drug consumption
47 or impairment by such person; the existence of an open container
48 containing an alcoholic beverage in or around the vicinity of such
49 person; or any other evidence surrounding the circumstances of the inci-
50 dent which indicates that the person possessed a firearm, rifle or shot-
51 gun while impaired by the consumption of alcohol or drugs or was intoxi-
52 cated at the time of the incident.
53 (d) Court order; procedure. (1) An application for a court order to
54 compel submission to a chemical test or any portion thereof, may be made
55 to any supreme court justice, county court judge or district court judge
56 in the judicial district in which the incident occurred, or if the inci-
A. 5268--A 10
1 dent occurred in the city of New York before any supreme court justice
2 or judge of the criminal court of the city of New York. Such applica-
3 tion may be communicated by telephone, radio or other means of electron-
4 ic communication, or in person.
5 (2) The applicant must provide identification by name and title and
6 must state the purpose of the communication. Upon being advised that an
7 application for a court order to compel submission to a chemical test is
8 being made, the court shall place under oath the applicant and any other
9 person providing information in support of the application as provided
10 in subparagraph three of this paragraph. After being sworn the applicant
11 must state that the person from whom the chemical test was requested
12 possessed a firearm, rifle or shotgun with which another person was
13 killed or physically injured and, based upon the totality of circum-
14 stances, there is reasonable cause to believe that such person possessed
15 a firearm, rifle or shotgun in violation of subdivision nine of section
16 265.01 of this article or a breath test indicated that alcohol had been
17 consumed by such person and, after being placed under lawful arrest such
18 person refused to submit to a chemical test or any portion thereof, in
19 accordance with the provisions of this section or is unable to give
20 consent to such a test or any portion thereof. The applicant must make
21 specific allegations of fact to support such statement. Any other person
22 properly identified, may present sworn allegations of fact in support of
23 the applicant's statement.
24 (3) Upon being advised that an oral application for a court order to
25 compel a person to submit to a chemical test is being made, a judge or
26 justice shall place under oath the applicant and any other person
27 providing information in support of the application. Such oath or oaths
28 and all of the remaining communication must be recorded, either by means
29 of a voice recording device or verbatim stenographic or verbatim long-
30 hand notes. If a voice recording device is used or a stenographic record
31 made, the judge must have the record transcribed, certify to the accura-
32 cy of the transcription and file the original record and transcription
33 with the court within seventy-two hours of the issuance of the court
34 order. If longhand notes are taken, the judge shall subscribe a copy and
35 file it with the court within twenty-four hours of the issuance of the
36 order.
37 (4) If the court is satisfied that the requirements for the issuance
38 of a court order pursuant to the provisions of paragraph (b) of this
39 subdivision have been met, it may grant the application and issue an
40 order requiring the accused to submit to a chemical test to determine
41 the alcoholic and/or drug content of his or her blood and ordering the
42 withdrawal of a blood sample in accordance with the provisions of para-
43 graph (a) of subdivision four of this section. When a judge or justice
44 determines to issue an order to compel submission to a chemical test
45 based on an oral application, the applicant therefor shall prepare the
46 order in accordance with the instructions of the judge or justice. In
47 all cases the order shall include the name of the issuing judge or
48 justice, the name of the applicant, and the date and time it was issued.
49 It must be signed by the judge or justice if issued in person, or by the
50 applicant if issued orally.
51 (5) Any false statement by an applicant or any other person in support
52 of an application for a court order shall subject such person to the
53 offenses for perjury set forth in article two hundred ten of this chap-
54 ter.
55 (6) The chief administrator of the courts shall establish a schedule
56 to provide that a sufficient number of judges or justices will be avail-
A. 5268--A 11
1 able in each judicial district to hear oral applications for court
2 orders as permitted by this section.
3 (e) Administration of compulsory chemical test. An order issued pursu-
4 ant to the provisions of this subdivision shall require that a chemical
5 test to determine the alcoholic and/or drug content of the possessor's
6 blood must be administered. The provisions of paragraphs (a), (b) and
7 (c) of subdivision four of this section shall be applicable to any chem-
8 ical test administered pursuant to this section.
9 4. Testing procedures. (a) Persons authorized to withdraw blood; immu-
10 nity; testimony. (1) At the request of a police officer, the following
11 persons may withdraw blood for the purpose of determining the alcoholic
12 and/or drug content therein: (A) a physician, a registered professional
13 nurse or a registered physician assistant; or (B) under the supervision
14 and at the direction of a physician: a medical laboratory technician or
15 medical technologist as classified by civil service; a phlebotomist; an
16 advanced emergency medical technician as certified by the department of
17 health; or a medical laboratory technician or medical technologist
18 employed by a clinical laboratory approved under title five of article
19 five of the public health law. This limitation shall not apply to the
20 taking of a urine, saliva or breath specimen.
21 (2) No person entitled to withdraw blood pursuant to subparagraph one
22 of this paragraph or hospital employing such person, and no other
23 employer of such person shall be sued or held liable for any act done or
24 omitted in the course of withdrawing blood at the request of a police
25 officer pursuant to this section.
26 (3) Any person who may have a cause of action arising from the with-
27 drawal of blood as aforesaid, for which no personal liability exists
28 under subparagraph two of this paragraph, may maintain such action
29 against the state if any person entitled to withdraw blood pursuant to
30 this paragraph acted at the request of a police officer employed by the
31 state, or against the appropriate political subdivision of the state if
32 such person acted at the request of a police officer employed by a poli-
33 tical subdivision of the state. No action shall be maintained pursuant
34 to this subparagraph unless notice of claim is duly filed or served in
35 compliance with law.
36 (4) Notwithstanding the foregoing provisions of this paragraph an
37 action may be maintained by the state or a political subdivision thereof
38 against a person entitled to withdraw blood pursuant to subparagraph one
39 of this paragraph or hospital employing such person for whose act or
40 omission the state or the political subdivision has been held liable
41 under this paragraph to recover damages, not exceeding the amount
42 awarded to the claimant, that may have been sustained by the state or
43 the political subdivision by reason of gross negligence or bad faith on
44 the part of such person.
45 (5) The testimony of any person other than a physician, entitled to
46 withdraw blood pursuant to subparagraph one of this paragraph, in
47 respect to any such withdrawal of blood made by such person may be
48 received in evidence with the same weight, force and effect as if such
49 withdrawal of blood were made by a physician.
50 (6) The provisions of subparagraphs two, three and four of this para-
51 graph shall also apply with regard to any person employed by a hospital
52 as security personnel for any act done or omitted in the course of with-
53 drawing blood at the request of a police officer pursuant to a court
54 order in accordance with subdivision three of this section.
A. 5268--A 12
1 (b) Right to additional test. The person tested shall be permitted to
2 choose a physician to administer a chemical test in addition to the one
3 administered at the direction of the police officer.
4 (c) Rules and regulations. The rules and regulations issued by the
5 department of health pursuant to paragraph (c) of subdivision four of
6 section eleven hundred ninety-four of the vehicle and traffic law shall
7 also apply to analyses under this section. If the analyses were made by
8 an individual possessing a permit issued by the department of health,
9 this shall be presumptive evidence that the examination was properly
10 given. The provisions of this paragraph do not prohibit the introduction
11 as evidence of an analysis made by an individual other than a person
12 possessing a permit issued by the department of health.
13 5. Definitions. For the purposes of this section:
14 (a) "License" means and includes licenses issued pursuant to section
15 400.00 of this chapter, and any permit issued by a county, city, town or
16 village pursuant to a local law, code or ordinance which restricts the
17 possession and purchase of rifles and shotguns.
18 (b) "Licensing authority" means the licensing officer or agency which
19 issues a license.
20 § 265.50 Chemical test evidence.
21 1. Admissibility. Upon the trial of any action or proceeding arising
22 out of actions alleged to have been committed by any person arrested for
23 a violation of subdivision nine of section 265.01 of this article, the
24 court shall admit evidence of the amount of alcohol or drugs in the
25 defendant's blood as shown by a test administered pursuant to the
26 provisions of section 265.45 of this article.
27 2. Probative value. The following effect shall be given to evidence of
28 blood-alcohol content, as determined by such tests, of a person arrested
29 for violation of subdivision nine of section 265.01 of this article:
30 (a) Evidence that there was .05 of one per centum or less by weight of
31 alcohol in such person's blood shall be prima facie evidence that the
32 ability of such person to safely possess a firearm, rifle or shotgun was
33 not impaired by the consumption of alcohol, and that such person was not
34 in an intoxicated condition;
35 (b) Evidence that there was more than .05 of one per centum but less
36 than .07 of one per centum by weight of alcohol in such person's blood
37 shall be prima facie evidence that such person was not in an intoxicated
38 condition, but such evidence shall be relevant evidence, but shall not
39 be given prima facie effect, in determining whether the ability of such
40 person to safely possess a firearm, rifle or shotgun was impaired by the
41 consumption of alcohol; and
42 (c) Evidence that there was .07 of one per centum or more but less
43 than .08 of one per centum by weight of alcohol in such person's blood
44 shall be prima facie evidence that such person was not in an intoxicated
45 condition, but such evidence shall be given prima facie effect in deter-
46 mining whether the ability of such person to safely possess a firearm,
47 rifle or shotgun was impaired by the consumption of alcohol.
48 3. Suppression. A defendant who has been compelled to submit to a
49 chemical test pursuant to the provisions of subdivision three of section
50 265.45 of this article may move for the suppression of such evidence in
51 accordance with article seven hundred ten of the criminal procedure law
52 on the grounds that the order was obtained and the test administered in
53 violation of the provisions of such subdivision or any other applicable
54 law.
55 § 6. Subdivision 11 of section 400.00 of the penal law, as amended by
56 chapter 210 of the laws of 1999, is amended to read as follows:
A. 5268--A 13
1 11. License: revocation and suspension. The conviction of a licensee
2 anywhere of a felony or serious offense shall operate as a revocation of
3 the license. A license may be revoked or suspended as provided for in
4 subdivision two of section 265.45 of this chapter, section 530.14 of the
5 criminal procedure law or section eight hundred forty-two-a of the fami-
6 ly court act. Except for a license issued pursuant to section 400.01 of
7 this article, a license may be revoked and cancelled at any time in the
8 city of New York, and in the counties of Nassau and Suffolk, by the
9 licensing officer, and elsewhere than in the city of New York by any
10 judge or justice of a court of record; a license issued pursuant to
11 section 400.01 of this article may be revoked and cancelled at any time
12 by the licensing officer or any judge or justice of a court of record.
13 The official revoking a license shall give written notice thereof with-
14 out unnecessary delay to the executive department, division of state
15 police, Albany, and shall also notify immediately the duly constituted
16 police authorities of the locality.
17 § 7. This act shall take effect on the one hundred eightieth day after
18 it shall have become a law; provided, however, that any actions, includ-
19 ing but not limited to the promulgation of rules and regulations, neces-
20 sary to implement the provisions of this act on its effective date are
21 authorized and directed to be made and completed on or before such date.
