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A07494 Summary:

BILL NOA07494A
 
SAME ASSAME AS S05671-A
 
SPONSORWoerner
 
COSPNSRD'Urso, Buchwald, McDonald, Thiele, Seawright, DeStefano, McDonough, Mosley, Galef
 
MLTSPNSRCrouch, Englebright, Tague
 
Amd §§1193 & 1198, V & T L; amd §65.10, Pen L
 
Describes the role of the ignition interlock monitor as well as requirements of people charged with violations that require the installation of an ignition interlock device to comply with court orders.
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A07494 Actions:

BILL NOA07494A
 
05/07/2019referred to transportation
06/11/2019amend (t) and recommit to transportation
06/11/2019print number 7494a
01/08/2020referred to transportation
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A07494 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7494--A
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                       May 7, 2019
                                       ___________
 
        Introduced  by M. of A. WOERNER -- read once and referred to the Commit-
          tee on Transportation -- committee discharged, bill  amended,  ordered
          reprinted as amended and recommitted to said committee
 
        AN  ACT  to  amend  the  vehicle  and  traffic law and the penal law, in
          relation to the ignition interlock program

          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, as amended by chapter 169 of the laws of 2013, and
     3  subparagraph (ii-a) as added by chapter 191 of  the  laws  of  2014,  is
     4  amended to read as follows:
     5    (c)  Felony  offenses.  (i)  A  person  who  operates a vehicle (A) in
     6  violation of subdivision two, two-a, three, four or  four-a  of  section
     7  eleven hundred ninety-two of this article after having been convicted of
     8  a  violation  of  subdivision  two, two-a, three, four or four-a of such
     9  section or of vehicular assault  in  the  second  or  first  degree,  as
    10  defined,  respectively,  in  sections  120.03  and 120.04 and aggravated
    11  vehicular assault as defined in section 120.04-a of the penal law or  of
    12  vehicular  manslaughter  in  the  second  or  first  degree, as defined,
    13  respectively, in sections 125.12 and  125.13  and  aggravated  vehicular
    14  homicide  as defined in section 125.14 of such law, within the preceding
    15  ten years, or (B) in violation of paragraph (b) of subdivision two-a  of
    16  section  eleven  hundred ninety-two of this article shall be guilty of a
    17  class E felony, and shall be punished by a fine of  not  less  than  one
    18  thousand  dollars  nor more than five thousand dollars or by a period of
    19  imprisonment as provided in the penal law, or  by  both  such  fine  and
    20  imprisonment.
    21    (ii)  A person who operates a vehicle in violation of subdivision two,
    22  two-a, three, four or four-a of section  eleven  hundred  ninety-two  of
    23  this  article  after having been convicted of a violation of subdivision
    24  two, two-a, three, four or  four-a  of  such  section  or  of  vehicular

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11389-03-9

        A. 7494--A                          2
 
     1  assault  in  the  second  or  first degree, as defined, respectively, in
     2  sections 120.03 and 120.04 and aggravated vehicular assault  as  defined
     3  in section 120.04-a of the penal law or of vehicular manslaughter in the
     4  second or first degree, as defined, respectively, in sections 125.12 and
     5  125.13 and aggravated vehicular homicide as defined in section 125.14 of
     6  such  law,  twice  within  the preceding ten years, shall be guilty of a
     7  class D felony, and shall be punished by a fine of  not  less  than  two
     8  thousand  dollars  nor  more than ten thousand dollars or by a period of
     9  imprisonment as provided in the penal law, or  by  both  such  fine  and
    10  imprisonment.
    11    (ii-a)  A  person  who  operates a vehicle in violation of subdivision
    12  two, two-a, three, four or four-a of section eleven  hundred  ninety-two
    13  of  this  article after having been convicted of a violation of subdivi-
    14  sion two, two-a, three, four or four-a of such section or  of  vehicular
    15  assault  in  the  second  or  first degree, as defined, respectively, in
    16  sections 120.03 and 120.04 and aggravated vehicular assault  as  defined
    17  in section 120.04-a of the penal law or of vehicular manslaughter in the
    18  second or first degree, as defined, respectively, in sections 125.12 and
    19  125.13 and aggravated vehicular homicide as defined in section 125.14 of
    20  such  law, three or more times within the preceding fifteen years, shall
    21  be guilty of a class D felony, and shall be punished by a  fine  of  not
    22  less  than two thousand dollars nor more than ten thousand dollars or by
    23  a period of imprisonment as provided in the penal law, or by  both  such
    24  fine and imprisonment.
    25    [(iii)  In  addition to the imposition of any fine or period of impri-
    26  sonment set forth in this paragraph, the court shall also sentence  such
    27  person convicted of, or adjudicated a youthful offender for, a violation
    28  of  subdivision two, two-a or three of section eleven hundred ninety-two
    29  of this article to a period of probation or conditional discharge, as  a
    30  condition  of  which it shall order such person to install and maintain,
    31  in accordance with the provisions of section eleven hundred ninety-eight
    32  of this article, an ignition interlock device in any motor vehicle owned
    33  or operated by such person during the term of such probation  or  condi-
    34  tional  discharge  imposed  for such violation of section eleven hundred
    35  ninety-two of this article and in no event for a  period  of  less  than
    36  twelve   months;  provided,  however,  that  such  period  of  interlock
    37  restriction shall terminate upon submission of proof  that  such  person
    38  installed  and  maintained an ignition interlock device for at least six
    39  months, unless the court ordered such person to install and  maintain  a
    40  ignition  interlock  device  for  a  longer period as authorized by this
    41  subparagraph and specified  in  such  order.  The  period  of  interlock
    42  restriction  shall  commence from the earlier of the date of sentencing,
    43  or the date that an ignition interlock device was installed  in  advance
    44  of sentencing. Provided, however, the court may not authorize the opera-
    45  tion  of  a  motor  vehicle  by any person whose license or privilege to
    46  operate a motor vehicle has been revoked pursuant to the  provisions  of
    47  this section.]
    48    § 2. Paragraph (g) of subdivision 1 of section 1193 of the vehicle and
    49  traffic  law,  as  amended  by section 57 of part A of chapter 56 of the
    50  laws of 2010, is amended to read as follows:
    51    (g) Condition of probation and conditional discharge; ignition  inter-
    52  lock  device requirements; alternative sentence. (1) For the purposes of
    53  this subdivision, "ignition  interlock  monitor"  shall  mean  a  person
    54  designated  by  the county where a conviction for a violation of section
    55  eleven hundred ninety-two of this article shall have occurred who  moni-
    56  tors  compliance  with  the provisions of section eleven hundred ninety-

        A. 7494--A                          3
 
     1  eight of this article and the concurrent regulations related thereto, by
     2  participants in the ignition interlock program.
     3    (2)  In  addition to the imposition of any fine or period of imprison-
     4  ment as set forth in  this  subdivision  and  to  any  license  sanction
     5  imposed  pursuant  to  subdivision  two of this section, the court shall
     6  sentence such person convicted of, or adjudicated  a  youthful  offender
     7  for,  a  violation of subdivision two, two-a, three or four-a of section
     8  eleven hundred ninety-two of this article to a period  of  probation  or
     9  conditional discharge, the conditions of which shall include the follow-
    10  ing:
    11    (i) an express prohibition on the operation of any motor vehicle with-
    12  out  a  functioning  ignition  interlock  device  for a period of twelve
    13  months or longer, as set forth in this paragraph or in paragraph (c)  of
    14  subdivision one-a of this section; and
    15    (ii)  such  person  shall  install and maintain in accordance with the
    16  provisions of section eleven hundred ninety-eight of  this  article,  an
    17  ignition  interlock device in the motor vehicle most frequently operated
    18  by such person for a period of twelve months or longer as set  forth  in
    19  subparagraph  three  of this paragraph, including the one hundred eighty
    20  days after a license has been restored. A declaration from the  ignition
    21  interlock  monitor  on  a  form provided by the commissioner, certifying
    22  that such person has operated such motor vehicle free of any  violations
    23  as  set  forth  in paragraph (i) of this subdivision for a period of one
    24  hundred twenty consecutive days after the restoration of the  operator's
    25  license,  shall  be deemed to have satisfied the conditions of probation
    26  or conditional discharge relating to the ignition interlock requirements
    27  set forth in this paragraph. The period of interlock  restriction  shall
    28  commence on the date that such ignition interlock device shall have been
    29  installed.
    30    (3)  Notwithstanding  the provisions of subparagraph two of this para-
    31  graph and subdivision two of this section relating to license sanctions,
    32  a court may impose an alternative sentence upon  such  person  convicted
    33  of,  or  adjudicated a youthful offender for, a violation of subdivision
    34  two, two-a, three or four-a of section eleven hundred ninety-two of this
    35  article, a period of probation or conditional discharge, the  conditions
    36  of which shall include the following:
    37    (i)  a  prohibition  from  operating any vehicle without a functioning
    38  ignition interlock device for a period of twelve months or longer as set
    39  forth in subparagraph four of this paragraph; and
    40    (ii) an order that such person install  and  maintain,  in  accordance
    41  with the provisions of section eleven hundred ninety-eight of this arti-
    42  cle,  an  ignition  interlock device in the motor vehicle most regularly
    43  operated by such person for a period of twelve months.    A  declaration
    44  from  the  ignition  interlock monitor on a form provided by the commis-
    45  sioner, certifying that such person has operated the motor vehicle  free
    46  of  any violations as set forth in paragraph (i) of this subdivision for
    47  a period of three hundred consecutive  days  shall  be  deemed  to  have
    48  satisfied  the conditions of probation or conditional discharge relating
    49  to the ignition interlock requirements as set forth in  this  paragraph.
    50  The period of interlock restriction shall commence on the date that such
    51  ignition  interlock  device  shall  have been installed. The alternative
    52  sentence set forth herein shall not be imposed on any  offender  subject
    53  to  the  additional  penalties  set  forth  in subdivision one-a of this
    54  section or who shall have also been convicted  of  a  violation  of  any
    55  provision  of  article  one hundred twenty or one hundred twenty five of
    56  the penal law involving the operation of a vehicle.

        A. 7494--A                          4
 
     1    (4) When a sentence is imposed pursuant to subparagraph two  or  three
     2  of  this  paragraph,  in  no  event  shall  the commissioner restore the
     3  license of any such person until the commissioner receives certification
     4  by the ignition interlock monitor that such person shall  have  operated
     5  the  motor  vehicle free of any violations set forth in paragraph (i) of
     6  this subdivision for a period of one hundred twenty days for a  sentence
     7  imposed  pursuant to subparagraph two of this paragraph and for a period
     8  of three hundred consecutive days for a  sentence  imposed  pursuant  to
     9  subparagraph  three  of  this  paragraph.  A  violation  of  any  of the
    10  provisions of paragraph (i) of this subdivision shall cause the  respec-
    11  tive period of operation to reset from the date of any such violation.
    12    (h)  Driving  while  ability  impaired  by alcohol; ignition interlock
    13  device requirement.  Notwithstanding any other provision of law  to  the
    14  contrary, when a person shall be charged with a violation of subdivision
    15  two,  two-a,  three,  or  four-a of section eleven hundred ninety-two of
    16  this article and a plea of guilty shall have been entered  in  satisfac-
    17  tion  of such charge to a violation of subdivision one of section eleven
    18  hundred ninety-two of this article, the conditions of  such  plea  shall
    19  include  an  express  prohibition  on the operation of any motor vehicle
    20  without a functioning ignition interlock device  for  a  period  of  six
    21  months, and such person shall install and maintain an ignition interlock
    22  device  for  a  period  of not less than six months on the motor vehicle
    23  operated most frequently by such person. A declaration from the ignition
    24  interlock monitor on a form provided  by  the  commissioner,  certifying
    25  that  such  person has operated the motor vehicle free of any violations
    26  as set forth in paragraph (i) of this subdivision for a period of ninety
    27  consecutive days after the date of installation, shall be deemed to have
    28  satisfied the conditions of such plea relating to the ignition interlock
    29  requirements set forth  in  this  paragraph.  The  period  of  interlock
    30  restriction  shall  be  deemed  to  commence from the date such ignition
    31  interlock device shall have been installed. If such person is  found  to
    32  have  violated the terms of the use of such ignition interlock device as
    33  set forth in paragraph (i) of this subdivision, such ninety  day  period
    34  shall reset from the date of any such violation.
    35    (i)  Violations  of  ignition  interlock requirements. For purposes of
    36  paragraphs (g) and (h) of  this  subdivision,  the  following  shall  be
    37  deemed a violation of the ignition interlock device requirements:
    38    (1)  any  violation  of  the provisions of subdivision nine of section
    39  eleven hundred ninety-eight of this chapter; or
    40    (2) a certified violation on a form provided by the commissioner  that
    41  such person has:
    42    (i) attempted to start his or her vehicle with a blood alcohol concen-
    43  tration  level of .04 or more, unless a subsequent test performed within
    44  ten minutes thereafter registers a  blood  alcohol  concentration  level
    45  lower  than  .04  and  the digital image provided confirms that the same
    46  person provided both samples;
    47    (ii) failed to take any random test, unless a review  of  the  digital
    48  image  confirms  that such vehicle was not occupied by the driver at the
    49  time of the missed test;
    50    (iii) failed to pass any random re-test with a blood  alcohol  concen-
    51  tration level of .025 or lower, unless a subsequent test performed with-
    52  in  ten minutes registers a blood alcohol concentration level lower than
    53  .025, and the digital image confirms that the same person provided  both
    54  samples; or
    55    (iv)  failed  to  appear  at the ignition interlock device vendor when
    56  required for maintenance, repair, calibration,  monitoring,  inspection,

        A. 7494--A                          5
 
     1  or  replacement  of  such  device.  A  certificate of violation shall be
     2  accompanied by a contemporaneous digital image verifying the identity of
     3  the violator.
     4    (j)  Ignition  interlock  device  requirements; terms of imprisonment.
     5  When a sentence imposed pursuant to this subdivision includes a term  of
     6  imprisonment,  the  satisfaction  of such term of imprisonment shall not
     7  reduce or otherwise limit the requirements set forth in paragraph (g) of
     8  this subdivision.
     9    (k) Demonstration of regular and consistent use. During the period  of
    10  authorized  use  of  a  motor  vehicle with an ignition interlock device
    11  pursuant to the provisions of this subdivision, the person so authorized
    12  shall demonstrate regular and consistent use of the  ignition  interlock
    13  device.
    14    (l) The office of probation and correctional alternatives shall recom-
    15  mend  to  the  commissioner of the division of criminal justice services
    16  regulations governing the monitoring of compliance by persons ordered to
    17  install and maintain ignition interlock devices to provide standards for
    18  monitoring by departments of probation, and options  for  monitoring  of
    19  compliance by such persons, that counties may adopt as an alternative to
    20  monitoring by a department of probation.
    21    §  3.  Paragraph (c) of subdivision 1-a of section 1193 of the vehicle
    22  and traffic law, as amended by chapter 669  of  the  laws  of  2007,  is
    23  amended to read as follows:
    24    (c)  A  court  sentencing a person pursuant to paragraph (a) or (b) of
    25  this subdivision shall: (i) order, as a condition of such sentence,  the
    26  installation  of  an  ignition  interlock  device  approved  pursuant to
    27  section eleven hundred ninety-eight of this article in [any]  the  motor
    28  vehicle  [owned or] most frequently operated by the person so sentenced.
    29  Such devices shall remain installed during any period of license revoca-
    30  tion required to be imposed pursuant to paragraph (b) of subdivision two
    31  of this section, and, upon the termination of  such  revocation  period,
    32  for  an  additional  period  as determined by the court, but in no event
    33  less than twelve months; and (ii) order  that  such  person  receive  an
    34  assessment of the degree of their alcohol or substance abuse and depend-
    35  ency pursuant to the provisions of section eleven hundred ninety-eight-a
    36  of  this  article.   Where such assessment indicates the need for treat-
    37  ment, such court is authorized to impose treatment  as  a  condition  of
    38  such  sentence except that such court shall impose treatment as a condi-
    39  tion of a sentence of probation or conditional discharge pursuant to the
    40  provisions of subdivision three of section eleven hundred ninety-eight-a
    41  of this article. Any person ordered to  install  an  ignition  interlock
    42  device  pursuant  to this paragraph shall be subject to paragraph (j) of
    43  subdivision one of this section and the provisions of subdivisions four,
    44  five, seven, eight and nine of section eleven  hundred  ninety-eight  of
    45  this article.
    46    §  4. Subdivisions 1, 2, 3, 4 and 5 of section 1198 of the vehicle and
    47  traffic law, subdivisions 1, 2, 3, 4 and paragraph (a) of subdivision  5
    48  as amended by chapter 496 of the laws of 2009, paragraph (a) of subdivi-
    49  sion  4 as amended by chapter 169 of the laws of 2013, and subdivision 5
    50  as amended by chapter 669 of the laws of 2007, are amended  to  read  as
    51  follows:
    52    1.  Applicability. The provisions of this section shall apply through-
    53  out the state to each person required or otherwise ordered by a court as
    54  a condition of sentence, plea, probation or conditional discharge, which
    55  shall prohibit the operation of a motor vehicle  without  a  functioning
    56  ignition interlock device and requires such person to install and [oper-

        A. 7494--A                          6

     1  ate]  maintain  an ignition interlock device in [any] the vehicle [which
     2  he or she owns or operates] most frequently operated by such person.
     3    2.  Requirements. (a) In addition to any other penalties prescribed by
     4  law, the court shall require that any person who has been convicted [of]
     5  or adjudicated a youthful offender for a violation of  subdivision  two,
     6  two-a [or], three or four-a of section eleven hundred ninety-two of this
     7  article,  or any crime defined by this chapter or the penal law of which
     8  an alcohol-related violation of any provision of section eleven  hundred
     9  ninety-two of this article is an essential element, [to] shall not oper-
    10  ate  a  motor  vehicle  without  an  ignition interlock device and shall
    11  install and maintain, as a condition of  plea,  sentence,  probation  or
    12  conditional  discharge,  a  functioning  ignition  interlock  device  in
    13  accordance with the provisions of this section and,  as  applicable,  in
    14  accordance  with the provisions of subdivisions one and one-a of section
    15  eleven hundred ninety-three of  this  article;  provided,  however,  the
    16  court  may  not authorize the operation of a motor vehicle by any person
    17  whose license or privilege to operate a motor vehicle has  been  revoked
    18  except as provided herein. For any such individual subject to a sentence
    19  of  probation,  installation  and maintenance of such ignition interlock
    20  device shall be a condition of probation.
    21    (b) Nothing contained in this section shall  prohibit  a  court,  upon
    22  application  by a probation department, from modifying the conditions of
    23  probation of any person convicted of any violation set  forth  in  para-
    24  graph  (a)  of  this  subdivision  prior  to  the effective date of this
    25  section, to require the installation and maintenance  of  a  functioning
    26  ignition  interlock  device, and such person shall thereafter be subject
    27  to the provisions of this section.
    28    [(c) Nothing contained in this section  shall  authorize  a  court  to
    29  sentence  any  person  to a period of probation or conditional discharge
    30  for the purpose of subjecting such person  to  the  provisions  of  this
    31  section,  unless such person would have otherwise been so eligible for a
    32  sentence of probation or conditional discharge.]
    33    3. Conditions. (a) [Notwithstanding any other provision of law] Except
    34  as provided for sentences imposed pursuant to paragraph (g) of  subdivi-
    35  sion  one  of  section  eleven hundred ninety-three of this chapter, the
    36  commissioner may grant a post-revocation  conditional  license,  as  set
    37  forth  in  paragraph  (b)  of this subdivision, to a person who has been
    38  convicted of a violation of subdivision two, two-a [or], three or four-a
    39  of section eleven hundred ninety-two of this article and  who  has  been
    40  sentenced  to  a  period of probation or conditional discharge, provided
    41  the person has satisfied the minimum period of license revocation estab-
    42  lished by law and the commissioner has been notified  that  such  person
    43  may  operate  only  a motor vehicle equipped with a functioning ignition
    44  interlock device.   No such request shall  be  made  nor  shall  such  a
    45  license be granted, however, if such person has been found by a court to
    46  have  committed a violation of section five hundred eleven of this chap-
    47  ter during the license revocation period or deemed by a  court  to  have
    48  violated  any  condition of probation or conditional discharge set forth
    49  by the court relating to  the  operation  of  a  motor  vehicle  or  the
    50  consumption  of  alcohol. In exercising discretion relating to the issu-
    51  ance of a post-revocation conditional license pursuant to this  subdivi-
    52  sion,  the  commissioner  shall not deny such issuance based solely upon
    53  the number of convictions for violations of any subdivision  of  section
    54  eleven hundred ninety-two of this article committed by such person with-
    55  in  the ten years prior to application for such license. Upon the termi-
    56  nation of the period of probation or conditional discharge  set  by  the

        A. 7494--A                          7
 
     1  court,  the  person  may  apply to the commissioner for restoration of a
     2  license or privilege to operate a motor vehicle in accordance with  this
     3  chapter.
     4    (b)  Notwithstanding  any  inconsistent  provision  of this chapter, a
     5  post-revocation conditional license granted pursuant to paragraph (a) of
     6  this subdivision shall be valid only for use by the holder thereof,  (1)
     7  [enroute]  en route to and from the holder's place of employment, (2) if
     8  the holder's employment requires the operation of a motor  vehicle  then
     9  during  the hours thereof, (3) [enroute] en route to and from a class or
    10  course at an accredited school, college or  university  or  at  a  state
    11  approved  institution  of  vocational  or technical training, (4) to and
    12  from court ordered probation activities, (5) to and from a motor vehicle
    13  office for the transaction of business relating to such license, (6) for
    14  a three hour consecutive daytime period, chosen by the department, on  a
    15  day  during  which the participant is not engaged in usual employment or
    16  vocation, (7) [enroute] en route to and from a  medical  examination  or
    17  treatment  as part of a necessary medical treatment for such participant
    18  or member of the participant's household,  as  evidenced  by  a  written
    19  statement  to  that  effect  from  a  licensed medical practitioner, (8)
    20  [enroute] en route to and from a  class  or  an  activity  which  is  an
    21  authorized  part  of  the alcohol and drug rehabilitation program and at
    22  which participant's attendance is required, and (9) [enroute]  en  route
    23  to and from a place, including a school, at which a child or children of
    24  the  participant are cared for on a regular basis and which is necessary
    25  for the participant to maintain such participant's employment or enroll-
    26  ment at an accredited school,  college  or  university  or  at  a  state
    27  approved institution of vocational or technical training.
    28    (c) The post-revocation conditional license described in this subdivi-
    29  sion  may  be revoked by the commissioner for sufficient cause including
    30  but not limited to, failure to comply with the terms of the condition of
    31  probation or conditional discharge set forth by the court, conviction of
    32  any traffic offense other than one involving parking, stopping or stand-
    33  ing [or], conviction of any alcohol or drug related offense, misdemeanor
    34  or felony, any violation of section five hundred eleven of this  chapter
    35  or  section  eleven  hundred  ninety-two of this article with respect to
    36  operating a motor vehicle without  an  ignition  interlock  device  when
    37  required  to  do  so,  or failure to install or maintain a court ordered
    38  ignition interlock device.
    39    (d) Nothing contained herein shall prohibit the court from  requiring,
    40  as  a  condition of probation or conditional discharge, the installation
    41  of a functioning ignition interlock device in any vehicle owned or oper-
    42  ated by a person sentenced for a violation of  subdivision  two,  two-a,
    43  [or] three or four-a of section eleven hundred ninety-two of this [chap-
    44  ter]  article,  or any crime defined by this chapter or the penal law of
    45  which an alcohol-related violation of any provision  of  section  eleven
    46  hundred ninety-two of this [chapter] article is an essential element, if
    47  the  court in its discretion, determines that such a condition is neces-
    48  sary to ensure the public safety. Imposition of  an  ignition  interlock
    49  condition  shall  in  no  way  limit the effect of any period of license
    50  suspension or revocation set forth by the commissioner or the court.
    51    (e) Nothing contained herein shall prevent the court from applying any
    52  other conditions of probation or conditional discharge allowed  by  law,
    53  including treatment for alcohol or drug abuse, restitution and community
    54  service.
    55    (f) The commissioner shall note on the operator's record of any person
    56  restricted  pursuant  to  this  section  that,  in addition to any other

        A. 7494--A                          8
 
     1  restrictions, conditions or limitations, such person may operate only  a
     2  motor vehicle equipped with an ignition interlock device.
     3    4.  Proof  of  compliance  and recording of condition.   (a) Following
     4  imposition by the court of the use of an ignition interlock device as  a
     5  condition plea, sentence, of probation or conditional discharge it shall
     6  require  the  person to provide proof of compliance with this section to
     7  the court and the probation  department  or  other  monitor  where  such
     8  person is under probation or conditional discharge supervision.  A claim
     9  by  such  person  that  he  or  she has good cause for not installing an
    10  ignition interlock device shall be  made  to  the  court  at  or  before
    11  sentencing,  in  writing in the form of a sworn affidavit signed by such
    12  person asserting under oath that he or she  is  not  the  registered  or
    13  titled owner of any motor vehicle and will not operate any motor vehicle
    14  during  the  period  of  restriction,  or that such person does not have
    15  access to the vehicle operated  by  such  person  at  the  time  of  the
    16  violation  of section eleven hundred ninety-two of this article, or that
    17  the registered owner of that vehicle or any vehicle registered  to  such
    18  person's  household  will  not  give  consent for the installation of an
    19  interlock device on his or her vehicle. The affidavit  shall  include  a
    20  statement  regarding  whether such person owned any motor vehicle on the
    21  date of the underlying violation of section eleven hundred ninety-two of
    22  this article and whether ownership of any of  those  vehicles  has  been
    23  transferred  to another party by sale, gift or any other means since the
    24  date of said violation. The affidavit shall  also  include  a  statement
    25  from  such person that he or she has not and will not transfer ownership
    26  of any vehicle to evade installation of an  ignition  interlock  device,
    27  the  address  of  such  person's employment, if applicable, and how such
    28  person  intends  to  travel  to  that  location  during  the  period  of
    29  restriction.  The  person  also  may include any other facts and circum-
    30  stances he or she believes to be relevant to the claim  of  good  cause.
    31  The  court  shall make a finding whether good cause exists on the record
    32  and, if good cause shall be found, issue such finding in writing  to  be
    33  filed  by  such  person  with  the  probation department or the ignition
    34  interlock monitor, as appropriate. In the event the  court  denies  such
    35  person's  claim  of  good cause on the basis of the affidavit filed with
    36  the court, such persons shall be given an opportunity to be heard.  Such
    37  person  shall also be permitted to waive the opportunity to be heard, if
    38  he or she chooses to do so. If  [the]  a  person  shall  be  ordered  to
    39  install and maintain an ignition interlock device, and such person fails
    40  to provide for such proof of installation, absent a finding by the court
    41  of good cause for that failure which is entered in the record, the court
    42  may  revoke,  modify, or terminate the person's sentence of probation or
    43  conditional discharge as provided under law.  [Good cause may include  a
    44  finding  that  the  person  is  not the owner of a motor vehicle if such
    45  person asserts under oath that such person is not the owner of any motor
    46  vehicle and that he or she will not operate any motor vehicle during the
    47  period of interlock restriction except as may  be  otherwise  authorized
    48  pursuant  to  law.]  "Owner"  shall have the same meaning as provided in
    49  section one hundred twenty-eight of this chapter.
    50    (b) When a court imposes the condition specified in subdivision one of
    51  this section, the court shall notify the commissioner in such manner  as
    52  the  commissioner  may  prescribe,  and the commissioner shall note such
    53  condition on the operating record of the person subject to  such  condi-
    54  tions.
    55    5. Cost, installation and maintenance.  (a) The cost of installing and
    56  maintaining  the  ignition interlock device shall be borne by the person

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     1  subject to such condition unless the court  determines  such  person  is
     2  financially  unable  to  afford  such  cost  whereupon  such cost may be
     3  imposed pursuant to a payment plan or waived.   In  the  event  of  such
     4  waiver,  the  cost of the device shall be borne in accordance with regu-
     5  lations issued under paragraph (g) of subdivision one of section  eleven
     6  hundred ninety-three of this article or pursuant to such other agreement
     7  as  may  be entered into for provision of the device. Such cost shall be
     8  considered a fine for the purposes of subdivision five of section 420.10
     9  of the criminal procedure law. Such cost shall not  replace,  but  shall
    10  instead be in addition to, any fines, surcharges, or other costs imposed
    11  pursuant to this chapter or other applicable laws.
    12    (b)  The  installation  and  service  provider  of the device shall be
    13  responsible for the installation, calibration, and maintenance  of  such
    14  device.
    15    (c)  Failure  to  install such device, failure to appear for a service
    16  visit or failure to comply with service instructions or circumvention of
    17  or tampering with the device, in violation of regulations promulgated by
    18  the division of criminal justice services, shall constitute a  violation
    19  of  the  conditions  of  a  person's  sentence, probation or conditional
    20  discharge.
    21    § 5. Paragraph (k-1) of subdivision 2 of section 65.10  of  the  penal
    22  law,  as  amended by chapter 669 of the laws of 2007, is amended to read
    23  as follows:
    24    (k-1) Install and maintain a functioning ignition interlock device, as
    25  that term is defined in section one hundred nineteen-a  of  the  vehicle
    26  and  traffic  law, in any vehicle owned or operated by the defendant [if
    27  the court in its discretion determines that such a condition  is  neces-
    28  sary  to  ensure the public safety. The court may require such condition
    29  only where a person has been convicted of  a  violation  of  subdivision
    30  two,  two-a or three of section eleven hundred ninety-two of the vehicle
    31  and traffic law, or any crime defined by the vehicle and traffic law  or
    32  this  chapter  of which an alcohol-related violation of any provision of
    33  section eleven hundred ninety-two of the vehicle and traffic law  is  an
    34  essential  element]. The offender shall be required to install and oper-
    35  ate the ignition interlock device only in accordance with the provisions
    36  of paragraphs (g), (h), (i) and (j) of subdivision one of section eleven
    37  hundred ninety-three and section  eleven  hundred  ninety-eight  of  the
    38  vehicle and traffic law.
    39    §  6.  The  division  of  criminal  justice services is authorized and
    40  directed to compile and publish annually a report on its website of  the
    41  total number of repeat convictions with respect to violations of section
    42  1192  of  the  vehicle and traffic law for the five years succeeding the
    43  effective date of this act, and shall also include the total  number  of
    44  repeat  convictions  for  the five years preceding the effective date in
    45  such report. The division is authorized and directed to coordinate  with
    46  any  other agency, authority, department, division, bureau, or political
    47  subdivision to compile this information,  including  without  limitation
    48  the governor's highway traffic safety committee.
    49    § 7. This act shall take effect on the first of November next succeed-
    50  ing  the  date  on  which it shall have become a law, provided, however,
    51  that the amendments to section 1198 of the vehicle and traffic law  made
    52  by  section four of this act shall not affect the repeal of such section
    53  and shall be deemed repealed therewith.
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