Relates to compulsory chemical testing.
Ayes (62): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (1): Squadron
TITLE OF BILL: An act to amend the vehicle and traffic law, in relation to compulsory chemical tests
PURPOSE: The purpose of this bill is to provide the necessary tools to allow the implementation of a "no refusal" policy in New York State,
SUMMARY OF PROVISIONS: This bill amends the section 1194 of the Vehicle and Traffic Law to allow application to a court to compel compliance with a chemical test where a motorist is suspected to be under the influence and where the driver has refused a chemical test.
EXISTING LAW: Under current law, a police officer or district attorney may apply for an order to compel upon refusal by an operator to submit to a chemical test only when there is reasonable cause to believe the operator is DUI and there is serious bodily harm or death. Law enforcement is not permitted to apply for an order to compel where there is there is reasonable cause, but neither serious bodily harm nor death.
JUSTIFICATION: Under current law, upon receipt of his or her driver license a motorist is deemed to have given consent to submit to a chemical test when reasonable cause exists to believe he or she is driving under the influence - this is a condition of the privilege to drive. Should a motorist choose not to submit, he or she faces a period of license revocation and monetary penalties. Law enforcement, however, faces the prospect of having to make a case without what is often times the sole piece of objective evidence in a DUI case.
Given the choice of a fine and period of revocation, as against providing substantial evidence of one's guilt in what could be a criminal matter, it is no surprise that many times a motorist refuses to submit to a chemical test. This legislation seeks to strengthen law enforcement's hand in these situations. This bill would allow applications to the court in any situation in which law enforcement has a reasonable belief that a motorist is driving under the influence and that motorist has refused to submit to a chemical test. This bill would add real teeth to the "implied consent" provision of the Vehicle and Traffic Law.
Presently, the authority to apply to a court for an order to compel submission to a chemical test exists only in situations of death or serious injury. This bill allow for applications to the court where a motorist refuses to submit to a chemical test in situations where
there is a reasonable cause exists to believe the motorist is under the influence but in which there has been no death or serious injury. In so amending the law, all judicial safeguards have been preserved. A law enforcement officer must articulate to a judge his or her reasonable cause for the belief that the motorist was driving under the influence, and only when a judge is satisfied that such cause exists will a court order be issued.
In December, U.S. Transportation Secretary, Ray LaHood highlighted the need for a national "no refusal" policy, calling on each state to adopt such a policy. Presently, nine states implement no refusal strategies at some level. New York's adoption of such a policy would be a strong tool for law enforcement in the prevention of DUI and DUI related tragedies.
LEGISLATIVE HISTORY: 2011-12: Passed the Senate (S.3768B)
FISCAL IMPLICATIONS: None.
LOCAL FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 757 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sens. FUSCHILLO, LARKIN, LAVALLE, RANZENHOFER -- 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 compulsory chemical tests THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (b) of subdivision 3 of section 1194 of the vehicle and traffic law, as added by chapter 47 of the laws of 1988, is amended to read as follows: (b) When authorized. Upon refusal by any person to submit to a chemi- cal test or any portion thereof as described above, the test shall not be given unless a police officer or a district attorney, as defined in subdivision thirty-two of section 1.20 of the criminal procedure law, requests and obtains a court order to compel a person to submit to a chemical test to determine the alcoholic or drug content of the person's blood upon a finding of reasonable cause to believe that: (1)
[such person was the operator of a motor vehicle and in the course of such operation a person other than the operator was killed or suffered serious physical injury as defined in section 10.00 of the penal law; and (2)]a. either such person operated the vehicle in violation of any subdivision of section eleven hundred ninety-two of this article, or b. a breath test administered by a police officer in accordance with paragraph (b) of subdivision one of this section indicates that alcohol has been consumed by such person; and [(3)](2) such person has been placed under lawful arrest; and [(4)](3) such person has refused to submit to a chemical test or any portion thereof, requested in accordance with the provisions of para-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01338-02-3 S. 757 2
graph (a) of subdivision two of this section or is unable to give consent to such a test. S 2. Subparagraphs 1 and 2 of paragraph (b) of subdivision 2 of section 1194 of the vehicle and traffic law, as amended by chapter 196 of the laws of 1996, are amended to read as follows: (1) If: (A) such person having been placed under arrest; or (B) after a breath test indicates the presence of alcohol in the person's system; or (C) with regard to a person under the age of twenty-one, there are reasonable grounds to believe that such person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article; and having thereafter been requested to submit to such chemical test and having been informed that the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended and subsequently revoked, or, for operators under the age of twenty-one for whom there are reasonable grounds to believe that such operator has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article, shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested or detained, refuses to submit to such chemical test or any portion there- of,
[unless a court order has been granted pursuant to subdivision three of this section, the test shall not be given and]a written report of such refusal shall be immediately made by the police officer before whom such refusal was made. Such report may be verified by having the report sworn to, or by affixing to such report a form notice that false state- ments made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute a verification of the report. (2) The report of the police officer shall set forth reasonable grounds to believe such arrested person or such detained person under the age of twenty-one had been driving in violation of any subdivision of section eleven hundred ninety-two or eleven hundred ninety-two-a of this article [,]AND that said person had refused to submit to such chem- ical test [, and that no chemical test was administered pursuant to the requirements of subdivision three of this section]. The report shall be presented to the court upon arraignment of an arrested person, provided, however, in the case of a person under the age of twenty-one, for whom a test was authorized pursuant to the provisions of subparagraph two or three of paragraph (a) of this subdivision, and who has not been placed under arrest for a violation of any of the provisions of section eleven hundred ninety-two of this article, such report shall be forwarded to the commissioner within forty-eight hours in a manner to be prescribed by the commissioner, and all subsequent proceedings with regard to refusal to submit to such chemical test by such person shall be as set forth in subdivision three of section eleven hundred ninety-four-a of this article. S 3. Subparagraph 2 of paragraph (d) of subdivision 3 of section 1194 of the vehicle and traffic law, as added by chapter 47 of the laws of 1988, is amended to read as follows: (2) The applicant must provide identification by name and title and must state the purpose of the communication. Upon being advised that an application for a court order to compel submission to a chemical test is being made, the court shall place under oath the applicant and any other person providing information in support of the application as providedS. 757 3
in subparagraph three of this paragraph. After being sworn the applicant must state that the person from whom the chemical test was requested was the operator of a motor vehicle and
[in the course of such operation a person, other than the operator, has been killed or seriously injured and], based upon the totality of circumstances, there is reasonable cause to believe that such person was operating a motor vehicle in violation of any subdivision of section eleven hundred ninety-two of this article and, after being placed under lawful arrest such person refused to submit to a chemical test or any portion thereof, in accord- ance with the provisions of this section or is unable to give consent to such a test or any portion thereof. The applicant must make specific allegations of fact to support such statement. Any other person properly identified, may present sworn allegations of fact in support of the applicant's statement. S 4. This act shall take effect immediately.