Expands the definition of driving while ability impaired to include driving while ability is affected to any extent by the voluntary consumption or utilization of a drug.
TITLE OF BILL: An act to amend the vehicle and traffic law, in relation to increasing the parameters of driving while ability impaired to include driving while ability affected by drugs
PURPOSE: This bill increases the parameters of driving while ability impaired to include driving while ability is affected to any extent by the utilization of a drug.
SUMMARY OF PROVISIONS: Section 1 amends Subdivision 1 of. section 1192 of the vehicle and traffic law, as added by chapter 47 of the laws of 1988, to include the utilization of a drug under the category of driving while impaired.
JUSTIFICATION: This bill would remedy a deficiency in the Vehicle and Traffic Law (VTL) which constitutes a significant number of cases each year. Section 1192 of the VTL is entitled "Operating a Motor Vehicle While Under the influence of Alcohol or Drugs". Section 1992-2 of the VTL provides that "no person shall operate a motor vehicle while such person has .10 of 1 percentum or more by weight of alcohol in the persons blood ...". Section 1192-3 provides that no person shall operate a motor vehicle while in an intoxicated condition.
Both Sections 1192.2 and 1192-3 of the VTL are unclassified misdemeanors. Routinely first time offenders, and in various other circumstances other repeat offenders, are afforded the opportunity to negotiate a plea downward to the non-criminal violation of Section 1192.1 of the VTL
Section 1192-4 of the VTL deals with the issue of operating a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug. This section, like § 1192.2 and §1192-3, is an unclassified misdemeanor. Similarly and routinely, a first time offender and other repeat offenders in certain circumstances charged with operating a motor vehicle while such person's ability is impaired by drugs is offered a plea by the District Attorney's Office to the non-criminal violation of § 1192-1 of the VTL.
Whenever the Court takes a plea of 01192-1 the defendant must state that he or she was driving while impaired by alcohol. This presents three distinct problems.
First, usually those people who are pleading guilty in reduction from 1192-4 to §1192-1 of the VTL have not consumed any alcohol but rather have utilized some form of drug. When the Court inquires as to the factual basis of the plea under § 1192.1, which only provides for impairment by alcohol, the defendant must either completely fictionalize their use of alcohol or simply state that he or she did not consume any alcohol whatsoever.
Second, should the court even wish to ignore this fiction and allow the defendant to enter a plea to § 1192-1 in a §1192-4 case, the conviction on the defendant's prior criminal history would reflect an alcohol problem rather than a drug related problem. A law enforcement officer viewing a defendant's prior history would not know that a defendant was operating under the influence of a drug if the history showed a conviction for alcohol.
Third, a defendant after taking a plea and having sentence imposed could move to set aside his conviction to §1192.1 as legally insufficient if the original charge is §1192-4.
By creating this new section the public will be best served so that routine reductions which are inappropriately and customarily accepted by the court will now have a basis in fact. Law Enforcement Officers will now also know by looking at a prior criminal history if the defendant has been known to utilize drugs rather than being misled by an alcohol conviction under §1192-1.
LEGISLATIVE HISTORY: 1999-00: S.2791-Passed Senate; A.6926--Transportation 2001.2002: S.96; Passed Senate; 2003.2004: S.801--Passed Senate; 2005-2006: S.665--Passed Senate; 2007-2008: S.617--Passed Senate. 2009-10: S.605--Transportation. 2011.12: S.949-Transportation.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the first day of November next succeeding the date on which it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 1512 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. MARCELLINO -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation AN ACT to amend the vehicle and traffic law, in relation to increasing the parameters of driving while ability impaired to include driving while ability affected by drugs THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 1192 of the vehicle and traffic law, as added by chapter 47 of the laws of 1988, is amended to read as follows: 1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is: (A) impaired by the consumption of alcohol; OR (B) AFFECTED TO ANY EXTENT BY THE VOLUNTARY CONSUMPTION OR UTILIZATION OF A DRUG AS DEFINED IN THIS CHAPTER. S 2. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03266-01-3