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A01325 Summary:

BILL NOA01325B
 
SAME ASSAME AS S06598-B
 
SPONSORWoerner (MS)
 
COSPNSRThiele, Seawright, DeStefano, McDonough, Galef, Simon, Williams, McDonald, Wallace, Jacobson, Sillitti, Griffin, Stern, Englebright, Gottfried, Lavine, Zinerman, Lawler, Angelino, Brown K
 
MLTSPNSRTague
 
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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A01325 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1325--B
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     January 8, 2021
                                       ___________
 
        Introduced by M. of A. WOERNER, THIELE, SEAWRIGHT, DeSTEFANO, McDONOUGH,
          GALEF,  SIMON,  WILLIAMS, McDONALD, WALLACE, JACOBSON, SILLITTI, GRIF-
          FIN, STERN, ENGLEBRIGHT, GOTTFRIED, LAVINE, ZINERMAN, LAWLER, ANGELINO
          -- Multi-Sponsored by -- M. of A. TAGUE -- read once and  referred  to
          the  Committee  on  Transportation  -- recommitted to the Committee on
          Transportation in accordance with Assembly Rule 3, sec. 2 -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee  --  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.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01428-05-2

        A. 1325--B                          2
 
     1    (ii)  A person who operates a vehicle in violation of subdivision two,
     2  two-a, three, four or four-a of section  eleven  hundred  ninety-two  of
     3  this  article  after having been convicted of a violation of subdivision
     4  two, two-a, three, four or  four-a  of  such  section  or  of  vehicular
     5  assault  in  the  second  or  first degree, as defined, respectively, in
     6  sections 120.03 and 120.04 and aggravated vehicular assault  as  defined
     7  in section 120.04-a of the penal law or of vehicular manslaughter in the
     8  second or first degree, as defined, respectively, in sections 125.12 and
     9  125.13 and aggravated vehicular homicide as defined in section 125.14 of
    10  such  law,  twice  within  the preceding ten years, shall be guilty of a
    11  class D felony, and shall be punished by a fine of  not  less  than  two
    12  thousand  dollars  nor  more than ten thousand dollars or by a period of
    13  imprisonment as provided in the penal law, or  by  both  such  fine  and
    14  imprisonment.
    15    (ii-a)  A  person  who  operates a vehicle in violation of subdivision
    16  two, two-a, three, four or four-a of section eleven  hundred  ninety-two
    17  of  this  article after having been convicted of a violation of subdivi-
    18  sion two, two-a, three, four or four-a of such section or  of  vehicular
    19  assault  in  the  second  or  first degree, as defined, respectively, in
    20  sections 120.03 and 120.04 and aggravated vehicular assault  as  defined
    21  in section 120.04-a of the penal law or of vehicular manslaughter in the
    22  second or first degree, as defined, respectively, in sections 125.12 and
    23  125.13 and aggravated vehicular homicide as defined in section 125.14 of
    24  such  law, three or more times within the preceding fifteen years, shall
    25  be guilty of a class D felony, and shall be punished by a  fine  of  not
    26  less  than two thousand dollars nor more than ten thousand dollars or by
    27  a period of imprisonment as provided in the penal law, or by  both  such
    28  fine and imprisonment.
    29    [(iii)  In  addition to the imposition of any fine or period of impri-
    30  sonment set forth in this paragraph, the court shall also sentence  such
    31  person convicted of, or adjudicated a youthful offender for, a violation
    32  of  subdivision two, two-a or three of section eleven hundred ninety-two
    33  of this article to a period of probation or conditional discharge, as  a
    34  condition  of  which it shall order such person to install and maintain,
    35  in accordance with the provisions of section eleven hundred ninety-eight
    36  of this article, an ignition interlock device in any motor vehicle owned
    37  or operated by such person during the term of such probation  or  condi-
    38  tional  discharge  imposed  for such violation of section eleven hundred
    39  ninety-two of this article and in no event for a  period  of  less  than
    40  twelve   months;  provided,  however,  that  such  period  of  interlock
    41  restriction shall terminate upon submission of proof  that  such  person
    42  installed  and  maintained an ignition interlock device for at least six
    43  months, unless the court ordered such person to install and  maintain  a
    44  ignition  interlock  device  for  a  longer period as authorized by this
    45  subparagraph and specified  in  such  order.  The  period  of  interlock
    46  restriction  shall  commence from the earlier of the date of sentencing,
    47  or the date that an ignition interlock device was installed  in  advance
    48  of sentencing. Provided, however, the court may not authorize the opera-
    49  tion  of  a  motor  vehicle  by any person whose license or privilege to
    50  operate a motor vehicle has been revoked pursuant to the  provisions  of
    51  this section.]
    52    § 2. Paragraph (g) of subdivision 1 of section 1193 of the vehicle and
    53  traffic  law,  as  amended  by section 57 of part A of chapter 56 of the
    54  laws of 2010, is amended to read as follows:
    55    (g) Condition of probation and conditional discharge; ignition  inter-
    56  lock  device requirements; alternative sentence authorized.  (1) For the

        A. 1325--B                          3
 
     1  purposes of this subdivision, "ignition interlock monitor" shall mean  a
     2  person  designated  by  the county where a conviction for a violation of
     3  section eleven hundred ninety-two of this article  shall  have  occurred
     4  who  monitors  compliance  with the provisions of section eleven hundred
     5  ninety-eight of this article  and  the  concurrent  regulations  related
     6  thereto,  by participants in the ignition interlock program as set forth
     7  in section eleven hundred ninety-eight of this article.
     8    (2) In addition to the imposition of any fine or period  of  imprison-
     9  ment  as  set  forth  in  this  subdivision  and to any license sanction
    10  imposed pursuant to subdivision two of this  section,  the  court  shall
    11  sentence  such  person  convicted of, or adjudicated a youthful offender
    12  for, a violation of subdivision two, two-a, three or four-a  of  section
    13  eleven  hundred  ninety-two  of this article to a period of probation or
    14  conditional discharge, the conditions of which shall include the follow-
    15  ing:
    16    (i) an express prohibition on the operation of any motor vehicle with-
    17  out a functioning ignition interlock  device  for  a  period  of  twelve
    18  months  or  longer,  pursuant  to the requirements of this paragraph and
    19  paragraph (c) of subdivision one-a of this section; and
    20    (ii) such person shall install and maintain  in  accordance  with  the
    21  provisions  of  section  eleven hundred ninety-eight of this article, an
    22  ignition interlock device in any motor vehicle operated by  such  person
    23  for  a  period  of  twelve months or longer as set forth in subparagraph
    24  four of this paragraph, including the one hundred eighty  days  after  a
    25  license  has  been  restored;  provided, however, a declaration from the
    26  ignition interlock monitor on  a  form  provided  by  the  commissioner,
    27  certifying  that such person has operated such motor vehicle free of any
    28  violations as set forth in paragraph (j) of this subdivision for a peri-
    29  od of one hundred twenty consecutive days after the restoration  of  the
    30  operator's  license, shall be deemed to have satisfied the conditions of
    31  probation or conditional discharge relating to  the  ignition  interlock
    32  requirements  set  forth  in  this  paragraph.  The  period of interlock
    33  restriction shall commence on the  date  that  such  ignition  interlock
    34  device shall have been installed.
    35    (3)  Notwithstanding  the provisions of subparagraph two of this para-
    36  graph and subdivision two of this section relating to license sanctions,
    37  a court may, in its discretion, impose an alternative sentence upon such
    38  person convicted of, or adjudicated a youthful offender for, a violation
    39  of subdivision two, two-a, three or four-a  of  section  eleven  hundred
    40  ninety-two  of  this  article,  a  period  of  probation  or conditional
    41  discharge, the conditions of which shall include the following:
    42    (i) an express prohibition from operating any vehicle without a  func-
    43  tioning ignition interlock device for a period of twelve months or long-
    44  er  pursuant  to the requirements of this paragraph and paragraph (c) of
    45  subdivision one-a of this section; and
    46    (ii) an order that such person install  and  maintain,  in  accordance
    47  with the provisions of section eleven hundred ninety-eight of this arti-
    48  cle,  an ignition interlock device in any motor vehicle operated by such
    49  person for a period of twelve months or longer, as set forth in subpara-
    50  graph four of this paragraph; provided, however, a declaration from  the
    51  ignition  interlock  monitor  on  a  form  provided by the commissioner,
    52  certifying that such person has operated the motor vehicle free  of  any
    53  violations as set forth in paragraph (j) of this subdivision for a peri-
    54  od  of  three hundred consecutive days shall be deemed to have satisfied
    55  the conditions of probation or conditional  discharge  relating  to  the
    56  ignition  interlock  requirements  as  set  forth in this paragraph. The

        A. 1325--B                          4
 
     1  period of interlock restriction shall commence on  the  date  that  such
     2  ignition  interlock  device  shall  have been installed. The alternative
     3  sentence set forth herein shall not be imposed on any  offender  subject
     4  to  the additional penalties set forth in paragraph (a) or (b) of subdi-
     5  vision one-a of this section or who shall have also been convicted of  a
     6  violation  of any provision of article one hundred twenty or one hundred
     7  twenty-five of the penal law involving the operation of a motor vehicle.
     8    (4) When a sentence is imposed pursuant to subparagraph two  or  three
     9  of  this  paragraph,  in  no  event  shall  the commissioner restore the
    10  license of any such person until the commissioner receives certification
    11  by the ignition interlock monitor that such person shall  have  operated
    12  the  motor  vehicle  substantially  free  of any violations set forth in
    13  paragraph (j) of  this  subdivision  for  the  applicable  time  periods
    14  imposed  pursuant  to  subparagraphs  two and three of this paragraph. A
    15  violation of any of the provisions of paragraph (j) of this  subdivision
    16  shall cause the respective period of operation to reset from the date of
    17  any such violation.
    18    (h)  Driving  while  ability  impaired  by alcohol; ignition interlock
    19  device requirement.  Notwithstanding any other provision of law  to  the
    20  contrary,  when a person is charged with a violation of subdivision two,
    21  two-a, three, or four-a of section eleven  hundred  ninety-two  of  this
    22  article  and a plea of guilty shall have been entered in satisfaction of
    23  such charge to a violation of subdivision one of section eleven  hundred
    24  ninety-two of this article, the conditions of such plea shall include an
    25  express  prohibition  on  the  operation  of any motor vehicle without a
    26  functioning ignition interlock device for a period of  six  months,  and
    27  that such person shall install and maintain an ignition interlock device
    28  for  a  period of not less than six months on any motor vehicle operated
    29  by such person.  If the court accepts the plea to  the  reduced  charge,
    30  the  court  shall  sentence such person to a conditional discharge which
    31  shall include such requirement in addition to any fine required by  this
    32  article  and  any other condition authorized by law.  A declaration from
    33  the ignition interlock monitor on a form provided by  the  commissioner,
    34  certifying  that  such person has operated the motor vehicle free of any
    35  violations as set forth in paragraph (j) of this subdivision for a peri-
    36  od of ninety consecutive days after the date of installation,  shall  be
    37  deemed  to  have  satisfied  the conditions of such plea relating to the
    38  ignition interlock requirements set forth in this paragraph. The  period
    39  of  interlock restriction shall be deemed to commence from the date such
    40  ignition interlock device shall have been installed. If such  person  is
    41  found  to  have violated the terms of the use of such ignition interlock
    42  device as set forth in paragraph (j) of this  subdivision,  such  ninety
    43  day period shall reset from the date of any such violation.
    44    (i)  Permanent  revocation;  ignition  interlock requirement. A person
    45  subject to a permanent license revocation pursuant  to  a  provision  of
    46  this  chapter or any rule promulgated pursuant to this chapter, when the
    47  underlying basis for the permanent revocation relates to two or more  of
    48  violations  of  section eleven hundred ninety-two of this article and/or
    49  refusal to submit to a chemical test pursuant to section eleven  hundred
    50  ninety-four of this article, such person shall be entitled to a post-re-
    51  vocation conditional license provided that the person has not within the
    52  past  twenty-five  years  been  convicted  of a violation of article one
    53  hundred twenty or article one  hundred  twenty-five  of  the  penal  law
    54  related  to  the  operation  of a motor vehicle, and the person has been
    55  subject to a license revocation for not less than  five  years  and  has
    56  not,  during  that period, been convicted of a violation of this chapter

        A. 1325--B                          5
 
     1  regarding the operation  of  a  motor  vehicle.  Upon  application,  the
     2  commissioner  shall provide such applicant with a post-revocation condi-
     3  tional license that will include the following conditions:
     4    (1) an express prohibition on the operation of any motor vehicle with-
     5  out  a functioning ignition interlock device for a period of twenty-four
     6  months as set forth in this paragraph; and
     7    (2) such person shall install and  maintain  in  accordance  with  the
     8  provisions  of  section  eleven hundred ninety-eight of this article, an
     9  ignition interlock device in any motor vehicle operated by such  person,
    10  for  a  period  of  twenty-four  months.    There  shall be a rebuttable
    11  presumption of rehabilitation for the purpose of petitioning the commis-
    12  sioner for restoration of the operator's  license  to  operate  a  motor
    13  vehicle  upon  a  declaration  from the ignition interlock monitor, on a
    14  form provided by the commissioner, certifying that such person has oper-
    15  ated such motor vehicle free of any violations of this chapter,  except-
    16  ing  violations  related  to standing, stopping or parking, and has been
    17  substantially devoid of any violations set forth  in  paragraph  (j)  of
    18  this  subdivision during the post-revocation conditional license period.
    19  A violation  of  section  five  hundred  eleven  of  this  chapter,  any
    20  provision  of  section  eleven  hundred  ninety-two  of this article, or
    21  refusal to submit to a chemical test pursuant to section eleven  hundred
    22  ninety-four  of  this  article  during  the  post-revocation conditional
    23  license period will result in immediate revocation of such license.  The
    24  period  of  interlock  restriction  shall commence on the date that such
    25  ignition interlock device shall have been installed.
    26    (j) Violations of ignition interlock  requirements.  For  purposes  of
    27  paragraphs  (g)  and  (h)  of  this  subdivision, the following shall be
    28  deemed a violation of the ignition interlock device requirements:
    29    (1) any violation of the provisions of  subdivision  nine  of  section
    30  eleven hundred ninety-eight of this article; or
    31    (2)  a certified violation on a form provided by the commissioner that
    32  such person has:
    33    (i) attempted to start his or her vehicle with a blood alcohol concen-
    34  tration level of .04 or more, unless a subsequent test performed  within
    35  ten  minutes  thereafter  registers  a blood alcohol concentration level
    36  lower than .04 and the digital image provided  confirms  that  the  same
    37  person provided both samples;
    38    (ii)  failed  to  take any random test, unless a review of the digital
    39  image confirms that such vehicle was not occupied by the driver  at  the
    40  time of the missed test;
    41    (iii)  failed  to pass any random re-test with a blood alcohol concen-
    42  tration level of .025 or lower, unless a subsequent test performed with-
    43  in ten minutes registers a blood alcohol concentration level lower  than
    44  .025,  and the digital image confirms that the same person provided both
    45  samples; or
    46    (iv) failed to appear at the ignition  interlock  device  vendor  when
    47  required  for  maintenance, repair, calibration, monitoring, inspection,
    48  or replacement  of  such  device.  When  applicable,  a  certificate  of
    49  violation  shall be accompanied by a contemporaneous digital image veri-
    50  fying the identity of the violator.
    51    (k) Ignition interlock device  requirements;  terms  of  imprisonment.
    52  When  a sentence imposed pursuant to this subdivision includes a term of
    53  imprisonment, the satisfaction of such term of  imprisonment  shall  not
    54  reduce or otherwise limit the requirements set forth in paragraph (g) of
    55  this subdivision.

        A. 1325--B                          6
 
     1    (l)  Demonstration of regular and consistent use. During the period of
     2  authorized use of a motor vehicle  with  an  ignition  interlock  device
     3  pursuant to the provisions of this subdivision, the person so authorized
     4  shall  demonstrate  regular and consistent use of the ignition interlock
     5  device.
     6    (m)  A  person  who  has successfully satisfied the ignition interlock
     7  requirements set forth in paragraph (g) or (h) of this subdivision shall
     8  no longer be subject to the provisions of section eleven  hundred  nine-
     9  ty-nine of this article relating to the driver responsibility assessment
    10  and  any  fee  paid  by  such  person  pursuant to such section shall be
    11  returned by the commissioner upon satisfactory proof of compliance.
    12    (n) The office of probation and correctional alternatives shall recom-
    13  mend to the commissioner of the division of  criminal  justice  services
    14  regulations governing the monitoring of compliance by persons ordered to
    15  install and maintain ignition interlock devices to provide standards for
    16  monitoring  by  departments  of probation, and options for monitoring of
    17  compliance by such persons, that counties may adopt as an alternative to
    18  monitoring by a department of probation.
    19    § 3. Paragraph (c) of subdivision 1-a of section 1193 of  the  vehicle
    20  and  traffic  law,  as  amended  by  chapter 669 of the laws of 2007, is
    21  amended to read as follows:
    22    (c) A court sentencing a person pursuant to paragraph (a)  or  (b)  of
    23  this  subdivision shall: (i) order, as a condition of such sentence, the
    24  installation of  an  ignition  interlock  device  approved  pursuant  to
    25  section eleven hundred ninety-eight of this article in any motor vehicle
    26  [owned  or]  operated  by  the  person  so sentenced. Such devices shall
    27  remain installed during any period of license revocation required to  be
    28  imposed  pursuant  to  paragraph (b) of subdivision two of this section,
    29  and, upon the termination of such revocation period, for  an  additional
    30  period  as determined by the court or as otherwise provided in paragraph
    31  (g) of subdivision one of this section; and (ii) order that such  person
    32  receive  an assessment of the degree of their alcohol or substance abuse
    33  and dependency pursuant to the  provisions  of  section  eleven  hundred
    34  ninety-eight-a  of  this  article.   Where such assessment indicates the
    35  need for treatment, such court is authorized to impose  treatment  as  a
    36  condition of such sentence except that such court shall impose treatment
    37  as  a  condition  of  a  sentence  of probation or conditional discharge
    38  pursuant to the  provisions  of  subdivision  three  of  section  eleven
    39  hundred ninety-eight-a of this article. Any person ordered to install an
    40  ignition interlock device pursuant to this paragraph shall be subject to
    41  paragraph  (g)  of subdivision one of this section and the provisions of
    42  subdivisions four, five, seven, eight and nine of section eleven hundred
    43  ninety-eight of this article.
    44    § 4. Subdivisions 1, 2, 3, 4 and 5 of section 1198 of the vehicle  and
    45  traffic  law, subdivisions 1, 2, 3, 4 and paragraph (a) of subdivision 5
    46  as amended by chapter 496 of the laws of 2009, paragraph (a) of subdivi-
    47  sion 4 as amended by chapter 169 of the laws of 2013, and subdivision  5
    48  as  amended  by  chapter 669 of the laws of 2007, are amended to read as
    49  follows:
    50    1. Applicability. The provisions of this section shall apply  through-
    51  out the state to each person required or otherwise ordered by a court as
    52  a condition of sentence, plea, probation or conditional discharge, which
    53  shall  prohibit  the  operation of a motor vehicle without a functioning
    54  ignition interlock device and requires such person to install and [oper-
    55  ate] maintain an ignition interlock device in any vehicle [which  he  or
    56  she owns or operates] operated by such person.

        A. 1325--B                          7
 
     1    2.  Requirements. (a) In addition to any other penalties prescribed by
     2  law, the court shall require that any person who has been convicted [of]
     3  or adjudicated a youthful offender for a violation of  subdivision  two,
     4  two-a [or], three or four-a of section eleven hundred ninety-two of this
     5  article,  or any crime defined by this chapter or the penal law of which
     6  an alcohol-related violation of any provision of section eleven  hundred
     7  ninety-two of this article is an essential element, [to] shall not oper-
     8  ate  a motor vehicle without a functioning ignition interlock device and
     9  shall install and maintain, as a condition of plea, sentence,  probation
    10  or  conditional  discharge,  a  functioning ignition interlock device in
    11  accordance with the provisions of this section and,  as  applicable,  in
    12  accordance  with the provisions of subdivisions one and one-a of section
    13  eleven hundred ninety-three of  this  article;  provided,  however,  the
    14  court  may  not authorize the operation of a motor vehicle by any person
    15  whose license or privilege to operate a motor vehicle has  been  revoked
    16  except as provided herein. For any such individual subject to a sentence
    17  of  probation,  installation  and maintenance of such ignition interlock
    18  device shall be a condition of probation.
    19    (b) Nothing contained in this section shall  prohibit  a  court,  upon
    20  application  by a probation department, from modifying the conditions of
    21  probation of any person convicted of any violation set  forth  in  para-
    22  graph  (a)  of  this  subdivision  prior  to  the effective date of this
    23  section, to require the installation and maintenance  of  a  functioning
    24  ignition  interlock  device, and such person shall thereafter be subject
    25  to the provisions of this section.
    26    [(c) Nothing contained in this section  shall  authorize  a  court  to
    27  sentence  any  person  to a period of probation or conditional discharge
    28  for the purpose of subjecting such person  to  the  provisions  of  this
    29  section,  unless such person would have otherwise been so eligible for a
    30  sentence of probation or conditional discharge.]
    31    3. Conditions. (a) [Notwithstanding any other provision of law] Except
    32  as otherwise provided for sentences imposed pursuant to paragraph (g) of
    33  subdivision one of section eleven hundred ninety-three of this  chapter,
    34  the commissioner may grant a post-revocation conditional license, as set
    35  forth  in  paragraph  (b)  of this subdivision, to a person who has been
    36  convicted of a violation of subdivision two, two-a [or], three or four-a
    37  of section eleven hundred ninety-two of this article and  who  has  been
    38  sentenced  to  a  period of probation or conditional discharge, provided
    39  the person has satisfied the minimum period of license revocation estab-
    40  lished by law and the commissioner has been notified  that  such  person
    41  may  operate  only  a motor vehicle equipped with a functioning ignition
    42  interlock device.   No such request shall  be  made  nor  shall  such  a
    43  license be granted, however, if such person has been found by a court to
    44  have  committed a violation of section five hundred eleven of this chap-
    45  ter during the license revocation period or deemed by a  court  to  have
    46  violated  any  condition of probation or conditional discharge set forth
    47  by the court relating to  the  operation  of  a  motor  vehicle  or  the
    48  consumption  of  alcohol. In exercising discretion relating to the issu-
    49  ance of a post-revocation conditional license pursuant to this  subdivi-
    50  sion,  the  commissioner  shall not deny such issuance based solely upon
    51  the number of convictions for violations of any subdivision  of  section
    52  eleven hundred ninety-two of this article committed by such person with-
    53  in  the ten years prior to application for such license. Upon the termi-
    54  nation of the period of probation or conditional discharge  set  by  the
    55  court,  the  person  may  apply to the commissioner for restoration of a

        A. 1325--B                          8
 
     1  license or privilege to operate a motor vehicle in accordance with  this
     2  chapter.
     3    (b)  Notwithstanding  any  inconsistent  provision  of this chapter, a
     4  post-revocation conditional license granted pursuant to paragraph (a) of
     5  this subdivision shall be valid only for use by the holder thereof,  (1)
     6  [enroute]  en route to and from the holder's place of employment, (2) if
     7  the holder's employment requires the operation of a motor  vehicle  then
     8  during  the hours thereof, (3) [enroute] en route to and from a class or
     9  course at an accredited school, college or  university  or  at  a  state
    10  approved  institution  of  vocational  or technical training, (4) to and
    11  from court ordered probation activities, (5) to and from a motor vehicle
    12  office for the transaction of business relating to such license, (6) for
    13  a three hour consecutive daytime period, chosen by the department, on  a
    14  day  during  which the participant is not engaged in usual employment or
    15  vocation, (7) [enroute] en route to and from a  medical  examination  or
    16  treatment  as part of a necessary medical treatment for such participant
    17  or member of the participant's household,  as  evidenced  by  a  written
    18  statement  to  that  effect  from  a  licensed medical practitioner, (8)
    19  [enroute] en route to and from a  class  or  an  activity  which  is  an
    20  authorized  part  of  the alcohol and drug rehabilitation program and at
    21  which participant's attendance is required, and (9) [enroute]  en  route
    22  to and from a place, including a school, at which a child or children of
    23  the  participant are cared for on a regular basis and which is necessary
    24  for the participant to maintain such participant's employment or enroll-
    25  ment at an accredited school,  college  or  university  or  at  a  state
    26  approved institution of vocational or technical training.
    27    (c) The post-revocation conditional license described in this subdivi-
    28  sion  may  be revoked by the commissioner for sufficient cause including
    29  but not limited to, failure to comply with the terms of the condition of
    30  probation or conditional discharge set forth by the court, conviction of
    31  any traffic offense other than one involving parking, stopping or stand-
    32  ing [or], conviction of any alcohol or drug related offense, misdemeanor
    33  or felony, any violation of this article with  respect  to  operating  a
    34  motor  vehicle  without  a  functioning  ignition  interlock device when
    35  required to do so, or failure to install or  maintain  a  court  ordered
    36  ignition interlock device.
    37    (d)  Nothing contained herein shall prohibit the court from requiring,
    38  as a condition of probation or conditional discharge,  the  installation
    39  of a functioning ignition interlock device in any vehicle owned or oper-
    40  ated  by  a  person sentenced for a violation of subdivision two, two-a,
    41  [or] three or four-a of section eleven hundred ninety-two of this [chap-
    42  ter] article, or any crime defined by this chapter or the penal  law  of
    43  which  an  alcohol-related  violation of any provision of section eleven
    44  hundred ninety-two of this [chapter] article is an essential element, if
    45  the court in its discretion, determines that such a condition is  neces-
    46  sary  to  ensure  the public safety. Imposition of an ignition interlock
    47  condition shall in no way limit the effect  of  any  period  of  license
    48  suspension or revocation set forth by the commissioner or the court.
    49    (e) Nothing contained herein shall prevent the court from applying any
    50  other  conditions  of probation or conditional discharge allowed by law,
    51  including treatment for alcohol or drug abuse, restitution and community
    52  service.
    53    (f) The commissioner shall note on the operator's record of any person
    54  restricted pursuant to this section  that,  in  addition  to  any  other
    55  restrictions,  conditions or limitations, such person may operate only a
    56  motor vehicle equipped with an ignition interlock device.

        A. 1325--B                          9
 
     1    4. Proof of compliance and recording  of  condition.    (a)  Following
     2  imposition  by the court of the use of an ignition interlock device as a
     3  condition plea, sentence, of probation or conditional discharge it shall
     4  require the person to provide proof of compliance with this  section  to
     5  the  court  and  the  probation  department  or other monitor where such
     6  person is under probation or conditional discharge supervision.  A claim
     7  by such person that he or she has  good  cause  for  not  installing  an
     8  ignition  interlock  device  shall  be  made  to  the court at or before
     9  sentencing, in writing in the form of a sworn affidavit signed  by  such
    10  person asserting under oath that: (a) he or she is not the registered or
    11  titled owner of any motor vehicle and will not operate any motor vehicle
    12  during the period of restriction; and (b) that such person does not have
    13  access  to  the  vehicle  operated  by  such  person  at the time of the
    14  violation of section eleven hundred ninety-two of this article; and  (c)
    15  that  the  registered owner of that vehicle or any vehicle registered to
    16  such person's household will not give consent for the installation of an
    17  interlock device on his or her vehicle. The affidavit  shall  include  a
    18  statement  regarding  whether such person owned any motor vehicle on the
    19  date of the underlying violation of section eleven hundred ninety-two of
    20  this article and whether ownership of any of  those  vehicles  has  been
    21  transferred  to another party by sale, gift or any other means since the
    22  date of said violation. The affidavit shall  also  include  a  statement
    23  from  such person that he or she has not and will not transfer ownership
    24  of any vehicle to evade installation of an  ignition  interlock  device,
    25  the  address  of  such  person's employment, if applicable, and how such
    26  person  intends  to  travel  to  that  location  during  the  period  of
    27  restriction.  The  person  also  may include any other facts and circum-
    28  stances he or she believes to be relevant to the claim  of  good  cause.
    29  The  court  shall make a finding whether good cause exists on the record
    30  and, if good cause shall be found, issue such finding in writing  to  be
    31  filed  by  such  person  with  the  probation department or the ignition
    32  interlock monitor, as appropriate. In the event the  court  denies  such
    33  person's  claim  of  good cause on the basis of the affidavit filed with
    34  the court, such persons shall be given an opportunity to be heard.  Such
    35  person  shall also be permitted to waive the opportunity to be heard, if
    36  he or she chooses to do so. If  [the]  a  person  shall  be  ordered  to
    37  install and maintain an ignition interlock device, and such person fails
    38  to provide for such proof of installation, absent a finding by the court
    39  of good cause for that failure which is entered in the record, the court
    40  may  revoke,  modify, or terminate the person's sentence of probation or
    41  conditional discharge as provided under law.  [Good cause may include  a
    42  finding  that  the  person  is  not the owner of a motor vehicle if such
    43  person asserts under oath that such person is not the owner of any motor
    44  vehicle and that he or she will not operate any motor vehicle during the
    45  period of interlock restriction except as may  be  otherwise  authorized
    46  pursuant  to  law.]  "Owner"  shall have the same meaning as provided in
    47  section one hundred twenty-eight of this chapter.
    48    (b) When a court imposes the condition specified in subdivision one of
    49  this section, the court shall notify the commissioner in such manner  as
    50  the  commissioner  may  prescribe,  and the commissioner shall note such
    51  condition on the operating record of the person subject to  such  condi-
    52  tions.
    53    5. Cost, installation and maintenance.  (a) The cost of installing and
    54  maintaining  the  ignition interlock device shall be borne by the person
    55  subject to such condition unless the court  determines  such  person  is
    56  financially  unable  to  afford  such  cost  whereupon  such cost may be

        A. 1325--B                         10

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