Bill S1372A-2009

Establishes the crime of operating a vehicle while fatigued

Establishes the crime of operating a vehicle while fatigued; relates to vehicular assault and vehicular manslaughter by including within the definition of such crimes the operation of a vehicle while fatigued where the result of such operation is serious physical injury or death to another person.

Details

Actions

  • Jun 8, 2010: REPORTED AND COMMITTED TO CODES
  • Mar 2, 2010: PRINT NUMBER 1372A
  • Mar 2, 2010: AMEND AND RECOMMIT TO TRANSPORTATION
  • Jan 6, 2010: REFERRED TO TRANSPORTATION
  • Jan 29, 2009: REFERRED TO TRANSPORTATION

Votes

VOTE: COMMITTEE VOTE: - Transportation - Jun 8, 2010
Ayes (12): Dilan, Stavisky, Savino, Perkins, Addabbo, Squadron, Diaz, Valesky, Aubertine, Fuschillo, Nozzolio, Volker
Ayes W/R (5): Foley, Libous, Robach, Larkin, Young
Nays (1): Lanza
Excused (1): Johnson O

Memo

 BILL NUMBER:  S1372A       REVISED 03/02/10

TITLE OF BILL : An act to amend the vehicle and traffic law and the penal law, in relation to operating a vehicle while fatigued; in relation to vehicular assault and vehicular manslaughter; and providing for the mandatory suspension of a driver's license upon conviction of operating a vehicle while fatigued

PURPOSE : To strengthen provisions of the vehicle and traffic law and penal law that relate to the crimes of vehicular assault and vehicular manslaughter when serious physical injury or death is caused by a person driving a vehicle while impaired because of lack of sleep.

SUMMARY OF PROVISIONS : Section 1 of the Vehicle and Traffic Law is amended by adding a new section 1212-a:

* Defines operating a vehicle while fatigued. * Expands what constitutes proof that a person was driving while fatigued * Defines criteria for rebuttable presumption * Defines vehicle included in law * This section shall not apply to emergency personnel engaged in response to catastrophic event which affects public safety; or medical, fire or ambulance personnel responding to certain emergencies or calls for assistance; or persons impaired by fatigue under circumstances in which a reasonable person would not have anticipated the onset of fatigue nor had a reasonable opportunity to discontinue operation of his or her vehicle. * Defines class of crime and penalties.

Paragraph b of subdivision 2 of section 510 of the vehicle and traffic law is amended by adding a new subparagraph (xvi) regarding penalties.

Subparagraph 2 of paragraph (a) of subdivision 2 of section 1193 of the V & TL, as amended by chapter 196 of the laws of 1996 is amended and a new subparagraph 3 is added regarding penalties for persons under the age of twenty one.

Section 120.03 of the penal law is amended to include driving while fatigued as vehicular assault in the second degree.

JUSTIFICATION : Current criminal law provisions are an inadequate deterrent to drivers who knowingly operate a vehicle while fatigued and drowsy. This creates an enhanced risk of serious injury to, or the death of, innocent victims. The addition of the rebuttable presumption provision would create a causal link between a driver who causes serious physical injury or death and a presumption that it was his or her drowsiness that was the cause. The accused would be able to rebut such a presumption by presenting evidence that shows that it was a separate intervening factor or factors that caused the serious injury or death.

LEGISLATIVE HISTORY : This bill has been previously introduced.

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : 180 days after it shall become law.

Text

STATE OF NEW YORK ________________________________________________________________________ 1372--A 2009-2010 Regular Sessions IN SENATE January 29, 2009 ___________
Introduced by Sens. STAVISKY, ADDABBO, FUSCHILLO, HUNTLEY, C. JOHNSON -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation -- recommitted to the Committee on Transportation in accordance with Senate Rule 6, sec. 8 -- 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 operating a vehicle while fatigued; in relation to vehicu- lar assault and vehicular manslaughter; and providing for the mandato- ry suspension of a driver's license upon conviction of operating a vehicle while fatigued THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The vehicle and traffic law is amended by adding a new section 1212-a to read as follows: S 1212-A. OPERATING A VEHICLE WHILE FATIGUED. (A) A PERSON IS GUILTY OF OPERATING A VEHICLE WHILE FATIGUED WHEN HE OR SHE OPERATES ANY VEHI- CLE WHILE HIS OR HER ABILITY TO DRIVE IS IMPAIRED BY FATIGUE. PROOF OF FATIGUED OPERATION SHALL INCLUDE, BUT NOT BE LIMITED TO: (1) EVIDENCE THAT THE DEFENDANT FELL ASLEEP WHILE DRIVING; (2) EVIDENCE THAT THE DEFENDANT WAS AWARE OR SHOULD REASONABLY HAVE BEEN EXPECTED TO BE AWARE THAT HE OR SHE HAS BEEN WITHOUT SLEEP FOR TWENTY-FOUR OR MORE CONSECUTIVE HOURS. EVIDENCE OF SUCH LACK OF SLEEP AS SET FORTH IN THIS SUBDIVISION SHALL CREATE A REBUTTABLE PRESUMPTION THAT SUCH PERSON'S ABILITY TO DRIVE WAS IMPAIRED BY FATIGUE. (B) FOR THE PURPOSES OF THIS SECTION, THE TERM "VEHICLE" SHALL MEAN A MOTOR VEHICLE, MOTORCYCLE, VESSEL, PUBLIC VESSEL, SNOWMOBILE, ALL-TER- RAIN VEHICLE OR ANY OTHER VEHICLE PROPELLED BY ANY POWER OTHER THAN MUSCULAR POWER.
(C) THIS SECTION SHALL NOT APPLY TO EMERGENCY PERSONNEL ENGAGED IN THE RESPONSE TO A CATASTROPHIC EVENT WHICH AFFECTS PUBLIC SAFETY; OR MEDICAL, FIRE OR AMBULANCE PERSONNEL RESPONDING TO CERTAIN EMERGENCIES OR CALLS FOR ASSISTANCE; OR PERSONS IMPAIRED BY FATIGUE UNDER CIRCUM- STANCES IN WHICH A REASONABLE PERSON WOULD NOT HAVE ANTICIPATED THE ONSET OF FATIGUE NOR HAD A REASONABLE OPPORTUNITY TO DISCONTINUE OPERA- TION OF HIS OR HER VEHICLE. (D) EVERY PERSON VIOLATING THIS SECTION SHALL BE GUILTY OF A CLASS A MISDEMEANOR. A FIRST VIOLATION OF THIS SECTION SHALL BE SUBJECT TO A FINE NOT TO EXCEED FIVE HUNDRED DOLLARS; ANY SUBSEQUENT VIOLATION OF THIS SECTION SHALL BE SUBJECT TO A FINE NOT TO EXCEED ONE THOUSAND DOLLARS AND MANDATORY LICENSE SUSPENSION IN ACCORDANCE WITH THE PROVISIONS OF SECTION FIVE HUNDRED TEN OF THIS CHAPTER. S 2. Paragraph b of subdivision 2 of section 510 of the vehicle and traffic law is amended by adding a new subparagraph (xvi) to read as follows: (XVI) FOR A PERIOD OF SIX MONTHS WHERE THE HOLDER IS CONVICTED OF A VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THIS CHAPTER. S 3. Subparagraph 2 of paragraph (a) of subdivision 2 of section 1193 of the vehicle and traffic law, as amended by chapter 196 of the laws of 1996, is amended and a new subparagraph 3 is added to read as follows: (2) Persons under the age of twenty-one; driving after having consumed alcohol. Six months, where the holder has been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article where such person was under the age of twenty-one at the time of commission of such violation[.]; (3) PERSONS UNDER THE AGE OF TWENTY-ONE; OPERATING A VEHICLE WHILE FATIGUED. SIX MONTHS, WHERE THE HOLDER HAS BEEN FOUND TO HAVE OPERATED A VEHICLE WHILE FATIGUED IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THIS CHAPTER WHERE SUCH PERSON WAS UNDER THE AGE OF TWENTY-ONE AT THE TIME OF COMMISSION OF SUCH VIOLATION. S 4. Section 120.03 of the penal law, as amended by chapter 732 of the laws of 2006, is amended to read as follows: S 120.03 Vehicular assault in the second degree. A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and either: (1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THE VEHICLE AND TRAFFIC LAW or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, operates such motor vehicle, vessel or public vessel in a manner that causes such serious physical injury to such other person, or (2) operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radio- active materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and such flammable gas, radioactive materi- als or explosives is the cause of such serious physical injury, and as a result of such impairment by the use of alcohol, OR BY FATIGUE, operates such motor vehicle in a manner that causes such serious physical injury to such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of section 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in para- graph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law and in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and as a result of such intoxi- cation or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, operates such snowmobile or all terrain vehicle in a manner that causes such serious physical injury to such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such serious physical injury while: (A) unlawfully intoxicated or impaired by the use of alcohol or a drug[,]; OR (B) UNLAWFULLY IMPAIRED BY FATIGUE then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, such person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such serious physical injury, as required by this section. Vehicular assault in the second degree is a class E felony. S 5. The second undesignated paragraph of section 120.04 of the penal law, as amended by chapter 496 of the laws of 2009, is amended to read as follows: If it is established that the person operating such motor vehicle caused such serious physical injury or injuries while: (A) unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs[,]; OR (B) UNLAWFULLY IMPAIRED BY FATIGUE then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, such person operated the motor vehicle in a manner that caused such serious physical injury or injuries, as required by this section and section 120.03 of this arti- cle. S 6. Section 125.12 of the penal law, as amended by chapter 732 of the laws of 2006, is amended to read as follows: S 125.12 Vehicular manslaughter in the second degree. A person is guilty of vehicular manslaughter in the second degree when he or she causes the death of another person, and either: (1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THE VEHICLE AND TRAFFIC LAW or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs OR FATIGUE, oper- ates such motor vehicle, vessel or public vessel in a manner that causes the death of such other person, or (2) operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radio- active materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law OR
OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and such flammable gas, radioactive materi- als or explosives is the cause of such death, and as a result of such impairment by the use of alcohol, OR BY FATIGUE, operates such motor vehicle in a manner that causes the death of such other person, or (3) operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of section 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in para- graph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law OR OPERATES A VEHICLE IN VIOLATION OF SECTION TWELVE HUNDRED TWELVE-A OF THE VEHICLE AND TRAFFIC LAW, and as a result of such intoxi- cation or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs OR FATIGUE, operates such snowmobile or all terrain vehicle in a manner that causes the death of such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such death while: (A) unlawfully intoxicated or impaired by the use of alco- hol or a drug[,]; OR (B) UNLAWFULLY IMPAIRED BY FATIGUE then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, OR BY FATIGUE, such person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such death, as required by this section. Vehicular manslaughter in the second degree is a class D felony. S 7. The second undesignated paragraph of section 125.13 of the penal law, as amended by chapter 496 of the laws of 2009, is amended to read as follows: If it is established that the person operating such motor vehicle caused such death or deaths while: (A) unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs[,]; OR (B) UNLAWFULLY IMPAIRED BY FATIGUE then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, OR BY FATIGUE such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article. S 8. This act shall take effect on the one hundred eightieth day after it shall have become a law.

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