STATE OF NEW YORK
________________________________________________________________________
5766
2015-2016 Regular Sessions
IN ASSEMBLY
March 4, 2015
___________
Introduced by M. of A. CUSICK -- read once and referred to the Committee
on Transportation
AN ACT to amend the vehicle and traffic law and the penal law, in
relation to driving while intoxicated
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (c) of subdivision 1 of section 1193 of the vehi-
2 cle and traffic law is amended by adding a new subparagraph (iv) to read
3 as follows:
4 (iv) In calculating the ten year period under item (i) of clause b of
5 subparagraph three of paragraph (e) of subdivision two of this section,
6 any period of time during which the person was incarcerated for any
7 reason between the time of commission of the previous violation of
8 subdivision two, two-a, three, four or four-a of section eleven hundred
9 ninety-two of this article or of vehicular assault in the second or
10 first degree, as defined, respectively, in sections 120.03 and 120.04
11 and aggravated vehicular assault as defined in section 120.04-a of the
12 penal law or of vehicular manslaughter in the second or first degree, as
13 defined, respectively, in sections 125.12 and 125.13 and aggravated
14 vehicular homicide as defined in section 125.14 of such law, and the
15 time of commission of the present offense shall be excluded and such ten
16 year period shall be extended by a period or periods equal to the time
17 served under such incarceration.
18 § 2. Subdivision 1-a of section 1193 of the vehicle and traffic law,
19 as added by chapter 691 of the laws of 2002, paragraph (c) as amended by
20 chapter 669 of the laws of 2007, paragraph (d) as added by chapter 732
21 of the laws of 2006, is amended to read as follows:
22 1-a. Additional penalties. (a) Except as provided for in [paragraph]
23 paragraphs (a-1), (b) and (b-1) of this subdivision, a person who oper-
24 ates a vehicle in violation of subdivision two [or], two-a, three, four
25 or four-a of section eleven hundred ninety-two of this article after
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03102-01-5
A. 5766 2
1 having been convicted of a violation of subdivision two [or], two-a,
2 three, four or four-a of such section within the preceding [five] ten
3 years shall, in addition to any other penalties which may be imposed
4 pursuant to subdivision one of this section, be sentenced to a term of
5 imprisonment of [five] not less than thirty days [or, as an alternative
6 to such imprisonment, be required to perform thirty days of service for
7 a public or not-for-profit corporation, association, institution or
8 agency as set forth in paragraph (h) of subdivision two of section 65.10
9 of the penal law as a condition of sentencing for such violation].
10 Notwithstanding the provisions of this paragraph, a sentence of a term
11 of imprisonment of [five] thirty days or more pursuant to the provisions
12 of subdivision one of this section shall be deemed to be in compliance
13 with this subdivision. Nothing contained in this paragraph shall be
14 construed to limit or prohibit a court from imposing any other addi-
15 tional penalty, condition, license suspension or revocation or screening
16 or assessment of sanction of any kind required or permitted by law.
17 (a-1) A person who operates a vehicle in violation of subdivision
18 two-a of section eleven hundred ninety-two of this article after having
19 been convicted of a violation of such subdivision within the preceding
20 ten years shall, in addition to any penalties which may be imposed
21 pursuant to subdivision one of this section, be sentenced to a term of
22 imprisonment of not less than one hundred eighty days. Nothing
23 contained in this paragraph shall be construed to limit or prohibit a
24 court from imposing any other additional penalty, condition, license
25 suspension or revocation or screening or assessment of sanction of any
26 kind required or permitted by law.
27 (b) [A] Except as provided in paragraph (b-1) of this subdivision, a
28 person who operates a vehicle in violation of subdivision two [or],
29 two-a, three, four or four-a of section eleven hundred ninety-two of
30 this article after having been convicted on two or more occasions of a
31 violation of [any of such subdivisions] subdivision two, two-a, three,
32 four or four-a of such section within the preceding [five] ten years
33 shall, in addition to any other penalties which may be imposed pursuant
34 to subdivision one of this section, be sentenced to a term of imprison-
35 ment of [ten] not less than ninety days [or, as an alternative to such
36 imprisonment, be required to perform sixty days of service for a public
37 or not-for-profit corporation, association, institution or agency as set
38 forth in paragraph (h) of subdivision two of section 65.10 of the penal
39 law as a condition of sentencing for such violation]. Notwithstanding
40 the provisions of this paragraph, a sentence of a term of imprisonment
41 of [ten] ninety days or more pursuant to the provisions of subdivision
42 one of this section shall be deemed to be in compliance with this subdi-
43 vision. Nothing contained in this paragraph shall be construed to limit
44 or prohibit a court from imposing any other additional penalty, condi-
45 tion, license suspension or revocation or screening or assessment of
46 sanction of any kind required or permitted by law.
47 (b-1) A person who operates a vehicle in violation of subdivision
48 two-a of section eleven hundred ninety-two of this article after having
49 been convicted of two or more violations of such subdivision within the
50 preceding ten years shall, in addition to any penalties which may be
51 imposed pursuant to subdivision one of this section, be sentenced to a
52 term of imprisonment of not less than one year. Nothing contained in
53 this paragraph shall be construed to limit or prohibit a court from
54 imposing any other additional penalty, condition, license suspension or
55 revocation or screening or assessment of sanction of any kind required
56 or permitted by law.
A. 5766 3
1 (c) A court sentencing a person who has been convicted of operating a
2 vehicle in violation of subdivision two, two-a, three or an alcohol-re-
3 lated violation of subdivision four-a of section eleven hundred ninety-
4 two of this article pursuant to paragraph (a) [or], (a-1), (b) or (b-1)
5 of this subdivision shall: (i) order the installation of an ignition
6 interlock device approved pursuant to section eleven hundred ninety-
7 eight of this article in any motor vehicle owned or operated by the
8 person so sentenced. Such devices shall remain installed during any
9 period of license revocation required to be imposed pursuant to para-
10 graph (b) of subdivision two of this section, and, upon the termination
11 of such revocation period, for an additional period as determined by the
12 court; and (ii) order that such person receive an assessment of the
13 degree of their alcohol or substance abuse and dependency pursuant to
14 the provisions of section eleven hundred ninety-eight-a of this article.
15 Where such assessment indicates the need for treatment, such court is
16 authorized to impose treatment as a condition of such sentence except
17 that such court shall impose treatment as a condition of a sentence of
18 probation or conditional discharge pursuant to the provisions of subdi-
19 vision three of section eleven hundred ninety-eight-a of this article.
20 Any person ordered to install an ignition interlock device pursuant to
21 this paragraph shall be subject to the provisions of subdivisions four,
22 five, seven, eight and nine of section eleven hundred ninety-eight of
23 this article. Nothing contained in this paragraph shall be construed to
24 limit or prohibit a court from imposing any other additional penalty,
25 condition, license suspension or revocation or screening or assessment
26 of sanction of any kind required or permitted by law.
27 (d) Confidentiality of records. The provisions of subdivision six of
28 section eleven hundred ninety-eight-a of this article shall apply to the
29 records and content of all assessments and treatment conducted pursuant
30 to this subdivision.
31 (e) In calculating the ten year period under paragraphs (a), (a-1),
32 (b) and (b-1) of this subdivision, any period of time during which the
33 person was incarcerated for any reason between the time of commission of
34 the previous violation of subdivision two, two-a, three, four or four-a
35 of section eleven hundred ninety-two of this article and the time of
36 commission of the present offense shall be excluded and such ten year
37 period shall be extended by a period or periods equal to the time served
38 under such incarceration.
39 § 3. Paragraph (a) of subdivision 1 of section 70.06 of the penal law,
40 as amended by chapter 410 of the laws of 1979, is amended to read as
41 follows:
42 (a) A second felony offender is a person, other than a second violent
43 felony offender as defined in section 70.04, who stands convicted of a
44 felony [defined in this chapter], other than a class A-I felony, after
45 having previously been subjected to one or more predicate felony
46 convictions as defined in paragraph (b) of this subdivision.
47 § 4. This act shall take effect on the first of November next succeed-
48 ing the date on which it shall have become a law.
