Provides for mandatory testing of breath, blood or urine in the event of a motor vehicle collision resulting in death or injury; provides immunity from civil liability for those health care providers who comply with the provisions of law requiring such testing.
STATE OF NEW YORK
________________________________________________________________________
9704
IN ASSEMBLY
April 5, 2016
___________
Introduced by M. of A. BENEDETTO -- read once and referred to the
Committee on Transportation
AN ACT to amend the vehicle and traffic law, in relation to mandatory
testing in the event of a motor vehicle collision resulting in injury
or death
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subparagraphs 1 and 2 of paragraph (a) of subdivision 2 of
2 section 1194 of the vehicle and traffic law, as amended by chapter 196
3 of the laws of 1996, are amended and a new subparagraph 2-a is added to
4 read as follows:
5 (1) having reasonable grounds to believe such person to have been
6 operating in violation of any subdivision of section eleven hundred
7 ninety-two of this article and within two hours after such person has
8 been placed under arrest for any such violation; or having reasonable
9 grounds to believe such person to have been operating in violation of
10 section eleven hundred ninety-two-a of this article and within two hours
11 after the stop of such person for any such violation, or
12 (2) within two hours after a breath test, as provided in paragraph (b)
13 of subdivision one of this section, indicates that alcohol has been
14 consumed by such person and in accordance with the rules and regulations
15 established by the police force of which the officer is a member[;], or
16 (2-a) having reasonable grounds to believe such person to have been
17 operating a motor vehicle in a manner that causes serious physical inju-
18 ry as defined in section 10.00 of the penal law to, or the death of,
19 another person and within two hours after such operation which resulted
20 in such serious physical injury or death, or
21 § 2. Subdivision 3 of section 1194 of the vehicle and traffic law, as
22 added by chapter 47 of the laws of 1988, is amended to read as follows:
23 3. Compulsory chemical tests. (a) [Court] Mandatory and court ordered
24 chemical tests. Notwithstanding the provisions of subdivision two of
25 this section, no person who operates a motor vehicle in this state may
26 refuse to submit to a chemical test of one or more of the following:
27 breath, blood, urine or saliva, for the purpose of determining the alco-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08282-01-5
A. 9704 2
1 holic and/or drug content of the blood when (i) a court order for such
2 chemical test has been issued in accordance with the provisions of this
3 subdivision or (ii) such person operated a motor vehicle in a manner
4 that causes the death of another person.
5 (b) [When] Court ordered chemical tests, when authorized. Upon (i)
6 refusal by any person to submit to a chemical test or any portion there-
7 of [as described above] requested by a police officer, pursuant to the
8 provisions of subparagraph two-a of paragraph (a) of subdivision two of
9 this section, having reasonable cause to believe such person to have
10 been operating a motor vehicle in a manner that caused serious physical
11 injury to another person, or (ii) the inability of any person to give
12 consent to a chemical test or any portion thereof requested by a police
13 officer, pursuant to the provisions of subparagraph two-a of paragraph
14 (a) of subdivision two of this section, having reasonable cause to
15 believe such person to have been operating a motor vehicle in a manner
16 that caused serious physical injury to, or the death of, another person,
17 the test shall not be given unless a police officer or a district attor-
18 ney, as defined in subdivision thirty-two of section 1.20 of the crimi-
19 nal procedure law, requests and obtains a court order to compel a person
20 to submit to a chemical test to determine the alcoholic or drug content
21 of the person's blood upon a finding of reasonable cause to believe
22 that:
23 (1) (A) such person was the operator of a motor vehicle and in the
24 course of such operation a person other than the operator [was killed
25 or] suffered serious physical injury as defined in section 10.00 of the
26 penal law; and
27 [(2) a. either such person operated the vehicle in violation of any
28 subdivision of section eleven hundred ninety-two of this article, or
29 b. a breath test administered by a police officer in accordance with
30 paragraph (b) of subdivision one of this section indicates that alcohol
31 has been consumed by such person; and
32 (3) such person has been placed under lawful arrest; and
33 (4)] (B) such person has refused to submit to a chemical test or any
34 portion thereof, requested in accordance with the provisions of subpara-
35 graph two-a of paragraph (a) of subdivision two of this section or [is
36 unable to give consent to such a test]
37 (2) (A) such person was the operator of a motor vehicle and in the
38 course of such operation a person other than the operator was killed or
39 suffered serious physical injury as defined in section 10.00 of the
40 penal law; and
41 (B) such person was unable to give consent to such a test.
42 (c) Reasonable cause; definition. For the purpose of this subdivision
43 "reasonable cause" shall be determined by viewing the totality of
44 circumstances surrounding the incident which, when taken together, indi-
45 cate that the operator was [driving in violation of section eleven
46 hundred ninety-two of this article. Such circumstances may include, but
47 are not limited to: evidence that the operator was operating a motor
48 vehicle in violation of any provision of this article or any other
49 moving violation at the time of the incident; any visible indication of
50 alcohol or drug consumption or impairment by the operator; the existence
51 of an open container containing an alcoholic beverage in or around the
52 vehicle driven by the operator; any other evidence surrounding the
53 circumstances of the incident which indicates that the operator has been
54 operating a motor vehicle while impaired by the consumption of alcohol
55 or drugs or intoxicated at the time of the incident] operating a motor
56 vehicle and in the course of such operation a person other than the
A. 9704 3
1 operator was killed or suffered serious physical injury as defined in
2 section 10.00 of the penal law.
3 (d) Court order; procedure. (1) An application for a court order to
4 compel submission to a chemical test or any portion thereof, may be made
5 to any supreme court justice, county court judge or district court judge
6 in the judicial district in which the incident occurred, or if the inci-
7 dent occurred in the city of New York before any supreme court justice
8 or judge of the criminal court of the city of New York. Such application
9 may be communicated by telephone, radio or other means of electronic
10 communication, or in person.
11 (2) The applicant must provide identification by name and title and
12 must state the purpose of the communication. Upon being advised that an
13 application for a court order to compel submission to a chemical test is
14 being made, the court shall place under oath the applicant and any other
15 person providing information in support of the application as provided
16 in subparagraph three of this paragraph. After being sworn the applicant
17 must state that the person from whom the chemical test was requested was
18 the operator of a motor vehicle and in the course of such operation a
19 person, other than the operator, has been [killed or] seriously injured
20 [and, based upon the totality of circumstances, there is reasonable
21 cause to believe that such person was operating a motor vehicle in
22 violation of any subdivision of section eleven hundred ninety-two of
23 this article] and, after being placed under lawful arrest such person
24 refused to submit to a chemical test or any portion thereof[,] in
25 accordance with the provisions of this section or is unable to give
26 consent to such a test or any portion thereof. The applicant must make
27 specific allegations of fact to support such statement. Any other person
28 properly identified, may present sworn allegations of fact in support of
29 the applicant's statement.
30 (3) Upon being advised that an oral application for a court order to
31 compel a person to submit to a chemical test is being made, a judge or
32 justice shall place under oath the applicant and any other person
33 providing information in support of the application. Such oath or oaths
34 and all of the remaining communication must be recorded, either by means
35 of a voice recording device or verbatim stenographic or verbatim long-
36 hand notes. If a voice recording device is used or a stenographic record
37 made, the judge must have the record transcribed, certify to the accura-
38 cy of the transcription and file the original record and transcription
39 with the court within seventy-two hours of the issuance of the court
40 order. If the longhand notes are taken, the judge shall subscribe a copy
41 and file it with the court within twenty-four hours of the issuance of
42 the order.
43 (4) If the court is satisfied that the requirements for the issuance
44 of a court order pursuant to the provisions of paragraph (b) of this
45 subdivision have been met, it may grant the application and issue an
46 order requiring the accused to submit to a chemical test to determine
47 the alcoholic and/or drug content of his blood and ordering the with-
48 drawal of a blood sample in accordance with the provisions of paragraph
49 (a) of subdivision four of this section. When a judge or justice deter-
50 mines to issue an order to compel submission to a chemical test based on
51 an oral application, the applicant therefor shall prepare the order in
52 accordance with the instructions of the judge or justice. In all cases
53 the order shall include the name of the issuing judge or justice, the
54 name of the applicant, and the date and time it was issued. It must be
55 signed by the judge or justice if issued in person, or by the applicant
56 if issued orally.
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1 (5) Any false statement by an applicant or any other person in support
2 of an application for a court order shall subject such person to the
3 offenses for perjury set forth in article two hundred ten of the penal
4 law.
5 (6) The chief administrator of the courts shall establish a schedule
6 to provide that a sufficient number of judges or justices will be avail-
7 able in each judicial district to hear oral applications for court
8 orders as permitted by this section.
9 (e) Administration of compulsory chemical test. An order issued pursu-
10 ant to the provisions of this subdivision shall require that a chemical
11 test to determine the alcoholic and/or drug content of the operator's
12 blood must be administered. The provisions of paragraphs (a), (b) and
13 (c) of subdivision four of this section shall be applicable to any chem-
14 ical test administered pursuant to this section.
15 § 3. This act shall take effect on the first of November next succeed-
16 ing the date on which it shall have become a law, and shall apply to
17 violations committed on and after such date.
