S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9902

                          I N  A S S E M B L Y

                            February 9, 2010
                               ___________

Introduced  by M. of A. PERALTA -- read once and referred to the Commit-
  tee on Codes

AN ACT to amend the penal law, in relation to possession of  a  firearm,
  rifle or shotgun while under the influence of alcohol or 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 80.05 of the penal law, as amended
by chapter 669 of the laws of 1984, is amended to read as follows:
  1. Class A misdemeanor. A sentence to pay a fine for a class A  misde-
meanor  shall  be  a  sentence to pay an amount, fixed by the court, not
exceeding one thousand  dollars,  provided,  however,  that  a  sentence
imposed for a violation of:
  (A)  section  215.80  of  this chapter may include a fine in an amount
equivalent to double the value of the property unlawfully disposed of in
the commission of the crime; AND
  (B) SUBDIVISION NINE OF SECTION 265.01 OF THIS CHAPTER MAY  INCLUDE  A
FINE, FIXED BY THE COURT, NOT EXCEEDING TEN THOUSAND DOLLARS.
  S 2. Section 265.00 of the penal law is amended by adding a new subdi-
vision 24 to read as follows:
  24.   "DRUG"   MEANS   ANY  CONTROLLED  SUBSTANCE  LISTED  IN  SECTION
THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.
  S 3. Subdivisions 2, 4, 5, 6, 7 and 8 of section 265.01 of  the  penal
law, subdivision 2 as amended by chapter 220 of the laws of 1988, subdi-
visions  4, 5 and 6 as added by chapter 1041 of the laws of 1974, subdi-
vision 7 as added by chapter 807 of the laws of 1981 and  subdivision  8
as  added  by  chapter  646  of  the laws of 1986, are amended and a new
subdivision 9 is added to read as follows:
  (2) He OR SHE possesses any  dagger,  dangerous  knife,  dirk,  razor,
stiletto,  imitation pistol, or any other dangerous or deadly instrument
or weapon with intent to use the same unlawfully against another; or
  (4) He OR SHE possesses a rifle or shotgun and has been convicted of a
felony or serious offense; or
  (5) He OR SHE possesses any dangerous or deadly weapon and  is  not  a
citizen of the United States; or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15617-02-0

A. 9902                             2

  (6)  He  OR  SHE  is  a  person who has been certified not suitable to
possess a rifle or shotgun, as defined in subdivision sixteen of section
265.00 OF THIS ARTICLE, and refuses to yield possession of such rifle or
shotgun upon the demand of a police officer. Whenever a person is certi-
fied  not suitable to possess a rifle or shotgun, a member of the police
department to which such certification is made, or of the state  police,
shall  forthwith  seize any rifle or shotgun possessed by such person. A
rifle or shotgun seized as herein provided shall not be  destroyed,  but
shall  be  delivered  to  the headquarters of such police department, or
state police, and there retained until  the  aforesaid  certificate  has
been rescinded by the director or physician in charge, or other disposi-
tion  of such rifle or shotgun has been ordered or authorized by a court
of competent jurisdiction[.]; OR
  (7) He OR SHE knowingly possesses a  bullet  containing  an  explosive
substance designed to detonate upon impact[.]; OR
  (8)  He  OR SHE possesses any armor piercing ammunition with intent to
use the same unlawfully against another[.]; OR
  (9) (A) HE OR SHE POSSESSES A FIREARM, RIFLE OR SHOTGUN OUTSIDE OF HIS
OR HER HOME WHILE:
  (I) HE OR SHE IS IN AN INTOXICATED CONDITION; OR
  (II) HE OR SHE HAS .08 OF ONE PER CENTUM OR MORE BY WEIGHT OF  ALCOHOL
IN  THE  PERSON'S  BLOOD  AS SHOWN BY CHEMICAL ANALYSIS OF SUCH PERSON'S
BLOOD, BREATH, URINE OR SALIVA, MADE PURSUANT TO SECTION 265.45 OF  THIS
ARTICLE; OR
  (III)  HIS  OR  HER  ABILITY  TO SAFELY POSSESS SUCH FIREARM, RIFLE OR
SHOTGUN IS IMPAIRED BY CONSUMPTION OF ALCOHOL; OR
  (IV) HIS OR HER ABILITY TO SAFELY POSSESS SUCH FIREARM, RIFLE OR SHOT-
GUN IS IMPAIRED BY USE OF ANY DRUG; OR
  (V) HIS OR HER ABILITY TO SAFELY POSSESS SUCH FIREARM, RIFLE OR  SHOT-
GUN IS IMPAIRED BY THE COMBINED INFLUENCE OF DRUGS OR OF ALCOHOL AND ANY
DRUG OR DRUGS.
  (B) A PERSON MAY BE CONVICTED OF A VIOLATION OF SUBPARAGRAPH (I), (II)
OR  (III) OF PARAGRAPH (A) OF THIS SUBDIVISION, NOTWITHSTANDING THAT THE
CHARGE LAID BEFORE THE COURT ALLEGED A VIOLATION OF SUBPARAGRAPH (I)  OR
(II)  OF PARAGRAPH (A) OF THIS SUBDIVISION, AND REGARDLESS OF WHETHER OR
NOT SUCH CONVICTION IS BASED ON A PLEA OF GUILTY.
  S 4. Paragraph 3 of subdivision a of section 265.20 of the  penal law,
as amended by chapter 210 of the laws of 1999, is  amended  to  read  as
follows:
  3.  Possession  of  a pistol or revolver by a person to whom a license
therefor has been issued as provided under section 400.00 or  400.01  of
this  chapter;  provided,  that  such  a  license  shall  not preclude a
conviction for [the] EITHER offense defined in subdivision three OR NINE
of section 265.01 of this article.
  S 5. The penal law is amended by adding two new  sections  265.45  and
265.50 to read as follows:
S 265.45 TESTING.
  1. FIELD TESTING. EVERY PERSON WHO POSSESSES A FIREARM, RIFLE OR SHOT-
GUN  WHICH  HAS BEEN BRANDISHED, DISPLAYED OUTSIDE A HOLSTER, DISCHARGED
OR OTHERWISE USED (OTHER THAN IN THE PERSON'S  HOME,  AT  AN  INDOOR  OR
OUTDOOR  SHOOTING  RANGE,  OR IN AN AREA WHERE HUNTING IS PERMITTED WITH
THE WEAPON), OR WHICH IS POSSESSED, DISPLAYED OR DISCHARGED IN VIOLATION
OF ANY PROVISION OF THIS CHAPTER SHALL, AT THE REQUEST OF A POLICE OFFI-
CER, SUBMIT TO A BREATH TEST TO BE ADMINISTERED BY THE  POLICE  OFFICER,
UNLESS  SUCH  PERSON  DEMONSTRATES TO SUCH POLICE OFFICER'S SATISFACTION
THAT HE OR SHE IS NOT SUBJECT TO THE PROVISIONS OF SUBDIVISION  NINE  OF

A. 9902                             3

SECTION 265.01 OF THIS ARTICLE. IF SUCH TEST INDICATES THAT SUCH POSSES-
SOR  HAS CONSUMED ALCOHOL, THE POLICE OFFICER MAY REQUEST SUCH POSSESSOR
TO SUBMIT TO A CHEMICAL TEST IN THE MANNER SET FORTH IN SUBDIVISION  TWO
OF THIS SECTION.
  2.  CHEMICAL  TESTS.  (A)  WHEN AUTHORIZED. ANY PERSON WHO POSSESSES A
FIREARM, RIFLE OR SHOTGUN IN THIS STATE, OTHER  THAN  IN  SUCH  PERSON'S
HOME, SHALL BE DEEMED TO HAVE GIVEN CONSENT TO A CHEMICAL TEST OF ONE OR
MORE  OF THE FOLLOWING: BREATH, BLOOD, URINE, OR SALIVA, FOR THE PURPOSE
OF DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT OF THE  BLOOD  PROVIDED
THAT  SUCH TEST IS ADMINISTERED BY OR AT THE DIRECTION OF A POLICE OFFI-
CER WITH RESPECT TO A CHEMICAL TEST OF BREATH, URINE OR SALIVA OR,  WITH
RESPECT  TO A CHEMICAL TEST OF BLOOD, AT THE DIRECTION OF A POLICE OFFI-
CER:
  (1) HAVING REASONABLE GROUNDS  TO  BELIEVE  SUCH  PERSON  POSSESSED  A
FIREARM,  RIFE  OR  SHOTGUN  IN VIOLATION OF SUBDIVISION NINE OF SECTION
265.01 OF THIS ARTICLE AND WITHIN TWO HOURS AFTER SUCH PERSON  HAS  BEEN
PLACED UNDER ARREST FOR ANY SUCH VIOLATION; OR
  (2)  WITHIN  TWO HOURS AFTER A BREATH TEST, AS PROVIDED IN SUBDIVISION
ONE OF THIS SECTION, INDICATES THAT ALCOHOL HAS BEEN  CONSUMED  BY  SUCH
PERSON  AND  IN ACCORDANCE WITH THE RULES AND REGULATIONS ESTABLISHED BY
THE POLICE FORCE OF WHICH THE OFFICER IS A MEMBER.
  FOR THE PURPOSES OF THIS PARAGRAPH, "REASONABLE  GROUNDS"  TO  BELIEVE
THAT  A  PERSON  POSSESSED  A  FIREARM, RIFLE OR SHOTGUN IN VIOLATION OF
SUBDIVISION NINE OF SECTION 265.01 OF THIS ARTICLE SHALL  BE  DETERMINED
BY VIEWING THE TOTALITY OF CIRCUMSTANCES SURROUNDING THE INCIDENT WHICH,
WHEN TAKEN TOGETHER, INDICATE THAT THE POSSESSION VIOLATED SUCH SUBDIVI-
SION.    SUCH  CIRCUMSTANCES MAY INCLUDE ANY VISIBLE OR BEHAVIORAL INDI-
CATION OF ALCOHOL OR DRUG CONSUMPTION BY SUCH PERSON, THE  EXISTENCE  OF
AN  OPEN  CONTAINER CONTAINING OR HAVING CONTAINED AN ALCOHOLIC BEVERAGE
IN OR AROUND  THE  VICINITY  OF  SUCH  PERSON,  OR  ANY  OTHER  EVIDENCE
SURROUNDING  THE  CIRCUMSTANCES OF THE INCIDENT WHICH INDICATES THAT THE
PERSON WAS IN POSSESSION OF A FIREARM, RIFLE  OR  SHOTGUN  AFTER  HAVING
CONSUMED ALCOHOL OR DRUGS AT THE TIME OF THE INCIDENT.
  (B)  REPORT  OF  REFUSAL.  (1)  IF: (A) SUCH PERSON HAVING BEEN PLACED
UNDER ARREST; OR (B) AFTER A BREATH TEST INDICATES THE PRESENCE OF ALCO-
HOL IN THE PERSON'S SYSTEM; AND  HAVING  THEREAFTER  BEEN  REQUESTED  TO
SUBMIT  TO SUCH CHEMICAL TEST AND HAVING BEEN INFORMED THAT THE PERSON'S
LICENSE ISSUED PURSUANT TO ARTICLE FOUR HUNDRED OF THIS CHAPTER SHALL BE
IMMEDIATELY SUSPENDED AND SUBSEQUENTLY REVOKED 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  THIS CHAPTER 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 HAD POSSESSED A  FIREARM,  RIFLE
OR  SHOTGUN  IN  VIOLATION OF SUBDIVISION NINE OF SECTION 265.01 OF THIS
ARTICLE, THAT SAID PERSON HAD REFUSED TO SUBMIT TO SUCH  CHEMICAL  TEST,
AND  THAT NO CHEMICAL TEST WAS ADMINISTERED PURSUANT TO THE REQUIREMENTS

A. 9902                             4

OF SUBDIVISION THREE OF THIS SECTION. THE REPORT SHALL BE  PRESENTED  TO
THE COURT UPON ARRAIGNMENT OF AN ARRESTED PERSON.
  (3)  FOR  PERSONS  PLACED  UNDER ARREST FOR A VIOLATION OF SUBDIVISION
NINE OF SECTION 265.01 OF THIS ARTICLE,  THE  LICENSE  SHALL,  UPON  THE
BASIS  OF  SUCH  WRITTEN  REPORT,  BE TEMPORARILY SUSPENDED BY THE COURT
WITHOUT NOTICE PENDING THE DETERMINATION OF A  HEARING  AS  PROVIDED  IN
PARAGRAPH  (C) OF THIS SUBDIVISION. COPIES OF SUCH REPORT MUST BE TRANS-
MITTED BY THE COURT TO THE LICENSING AUTHORITY AND SUCH TRANSMITTAL  MAY
NOT  BE  WAIVED  EVEN  WITH  THE CONSENT OF ALL THE PARTIES. SUCH REPORT
SHALL BE FORWARDED TO THE LICENSING AUTHORITY WITHIN  FORTY-EIGHT  HOURS
OF SUCH ARRAIGNMENT.
  (C)  HEARINGS. ANY PERSON WHOSE LICENSE HAS BEEN SUSPENDED PURSUANT TO
PARAGRAPH (B) OF THIS SUBDIVISION IS ENTITLED TO A HEARING IN ACCORDANCE
WITH A HEARING SCHEDULE TO BE PROMULGATED BY THE LICENSING AUTHORITY. IF
THE LICENSING AUTHORITY FAILS TO PROVIDE FOR SUCH HEARING  FIFTEEN  DAYS
AFTER THE DATE OF THE ARRAIGNMENT OF THE ARRESTED PERSON, THE LICENSE OF
SUCH  PERSON  SHALL  BE  REINSTATED  PENDING  A HEARING PURSUANT TO THIS
SECTION. THE HEARING SHALL BE LIMITED TO THE FOLLOWING ISSUES:  (1)  DID
THE  POLICE  OFFICER HAVE REASONABLE GROUNDS TO BELIEVE THAT SUCH PERSON
POSSESSED A FIREARM, RIFLE OR SHOTGUN IN VIOLATION OF  SUBDIVISION  NINE
OF  SECTION  265.01  OF  THIS ARTICLE; (2) DID THE POLICE OFFICER MAKE A
LAWFUL ARREST OF SUCH PERSON; (3) WAS SUCH PERSON GIVEN SUFFICIENT WARN-
ING, IN CLEAR OR UNEQUIVOCAL LANGUAGE, PRIOR TO SUCH REFUSAL  THAT  SUCH
REFUSAL  TO  SUBMIT  TO SUCH CHEMICAL TEST OR ANY PORTION THEREOF, WOULD
RESULT IN THE IMMEDIATE SUSPENSION AND  SUBSEQUENT  REVOCATION  OF  SUCH
PERSON'S  LICENSE  WHETHER  OR  NOT  SUCH  PERSON IS FOUND GUILTY OF THE
CHARGE FOR WHICH THE ARREST WAS MADE; AND (4) DID SUCH PERSON REFUSE  TO
SUBMIT  TO  SUCH  CHEMICAL  TEST  OR ANY PORTION THEREOF. IF, AFTER SUCH
HEARING, THE HEARING OFFICER, ACTING ON BEHALF OF THE LICENSING AUTHORI-
TY, FINDS ON ANY ONE OF SAID ISSUES IN THE NEGATIVE, THE HEARING OFFICER
SHALL IMMEDIATELY TERMINATE ANY SUSPENSION ARISING  FROM  SUCH  REFUSAL.
IF,  AFTER  SUCH  HEARING,  THE HEARING OFFICER, ACTING ON BEHALF OF THE
LICENSING AUTHORITY FINDS ALL OF THE ISSUES  IN  THE  AFFIRMATIVE,  SUCH
OFFICER  SHALL  IMMEDIATELY  REVOKE  THE  LICENSE IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH (D) OF THIS SUBDIVISION. A PERSON WHO HAS HAD  A
LICENSE SUSPENDED OR REVOKED PURSUANT TO THIS SUBDIVISION MAY APPEAL THE
FINDINGS  OF  THE  HEARING  OFFICER IN ACCORDANCE WITH THE PROVISIONS OF
ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND  RULES.  ANY  PERSON
MAY  WAIVE  THE  RIGHT  TO A HEARING UNDER THIS SECTION. FAILURE BY SUCH
PERSON TO APPEAR FOR THE SCHEDULED HEARING SHALL CONSTITUTE A WAIVER  OF
SUCH  HEARING,  PROVIDED,  HOWEVER,  THAT  SUCH  PERSON MAY PETITION THE
LICENSING AUTHORITY FOR A NEW HEARING WHICH SHALL BE  HELD  AS  SOON  AS
PRACTICABLE.
  (D)  REVOCATIONS. ANY LICENSE WHICH HAS BEEN REVOKED PURSUANT TO PARA-
GRAPH (C) OF THIS SUBDIVISION SHALL NOT BE RESTORED  FOR  AT  LEAST  ONE
YEAR  AFTER SUCH REVOCATION, NOR THEREAFTER, EXCEPT IN THE DISCRETION OF
THE LICENSING AUTHORITY  IN  LIGHT  OF  THE  TOTALITY  OF  CIRCUMSTANCES
SURROUNDING THE OFFENSE.  HOWEVER, NO SUCH LICENSE SHALL BE RESTORED FOR
AT LEAST EIGHTEEN MONTHS AFTER SUCH REVOCATION, NOR THEREAFTER EXCEPT IN
THE  DISCRETION  OF  THE LICENSING AUTHORITY IN LIGHT OF THE TOTALITY OF
CIRCUMSTANCES SURROUNDING THE OFFENSE, IN ANY CASE WHERE THE PERSON  HAS
HAD  A  PRIOR  REVOCATION RESULTING FROM REFUSAL TO SUBMIT TO A CHEMICAL
TEST, OR HAS BEEN CONVICTED OF OR FOUND TO BE IN VIOLATION  OF  SUBDIVI-
SION  NINE OF SECTION 265.01 OF THIS ARTICLE NOT ARISING OUT OF THE SAME
INCIDENT, WITHIN THE FIVE YEARS IMMEDIATELY PRECEDING THE DATE  OF  SUCH
REVOCATION.

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  (E)  REGULATIONS. A LICENSING AUTHORITY OR POLICE FORCE MAY PROMULGATE
SUCH RULES AND  REGULATIONS  AS  MAY  BE  NECESSARY  TO  EFFECTUATE  THE
PROVISIONS OF THIS SUBDIVISION AND SUBDIVISION ONE OF THIS SECTION.
  (F) EVIDENCE. EVIDENCE OF A REFUSAL TO SUBMIT TO SUCH CHEMICAL TEST OR
ANY  PORTION  THEREOF  SHALL  BE  ADMISSIBLE IN ANY TRIAL, PROCEEDING OR
HEARING BASED UPON A VIOLATION OF THE PROVISIONS OF SUBDIVISION NINE  OF
SECTION  265.01  OF THIS ARTICLE BUT ONLY UPON A SHOWING THAT THE PERSON
WAS GIVEN SUFFICIENT WARNING, IN CLEAR AND UNEQUIVOCAL LANGUAGE, OF  THE
EFFECT OF SUCH REFUSAL AND THAT THE PERSON PERSISTED IN THE REFUSAL.
  (G)  RESULTS.  UPON  THE  REQUEST  OF  THE  PERSON WHO WAS TESTED, THE
RESULTS OF SUCH TEST SHALL BE MADE AVAILABLE TO SUCH PERSON.
  3. COMPULSORY  CHEMICAL  TESTS.  (A)  COURT  ORDERED  CHEMICAL  TESTS.
NOTWITHSTANDING  THE  PROVISIONS  OF SUBDIVISION TWO OF THIS SECTION, NO
PERSON SUBJECT TO THE PROVISIONS OF SUBDIVISION NINE OF  SECTION  265.01
OF THIS ARTICLE WHO POSSESSES A FIREARM, RIFLE OR SHOTGUN (OTHER THAN IN
THE  PERSON'S  HOME,  AT AN INDOOR OR OUTDOOR SHOOTING RANGE, OR AN AREA
WHERE HUNTING IS PERMITTED WITH THE WEAPON) MAY REFUSE TO  SUBMIT  TO  A
CHEMICAL  TEST  OF ONE OR MORE OF THE FOLLOWING: BREATH, BLOOD, URINE OR
SALIVA, FOR THE PURPOSE OF DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT
OF THE BLOOD WHEN A COURT ORDER FOR SUCH CHEMICAL TEST HAS  BEEN  ISSUED
IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION.
  (B)  WHEN AUTHORIZED. UPON REFUSAL BY ANY PERSON TO SUBMIT TO A CHEMI-
CAL TEST OR ANY PORTION THEREOF AS DESCRIBED IN PARAGRAPH  (A)  OF  THIS
SUBDIVISION,  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  POSSESSED  A  FIREARM,  RIFLE OR SHOTGUN WITH WHICH
ANOTHER PERSON WAS KILLED OR SUFFERED SERIOUS PHYSICAL INJURY AS DEFINED
IN SECTION 10.00 OF THIS CHAPTER; AND
  (2) (A) EITHER SUCH PERSON POSSESSED THE FIREARM, RIFLE OR SHOTGUN  IN
VIOLATION OF SUBDIVISION NINE OF SECTION 265.01 OF THIS ARTICLE, OR
  (B)  A BREATH TEST ADMINISTERED BY A POLICE OFFICER IN ACCORDANCE WITH
SUBDIVISION ONE OF THIS SECTION INDICATES THAT ALCOHOL HAS BEEN CONSUMED
BY SUCH PERSON; AND
  (3) SUCH PERSON HAS BEEN PLACED UNDER LAWFUL ARREST; AND
  (4) SUCH PERSON HAS REFUSED TO  SUBMIT  TO  A  CHEMICAL  TEST  OR  ANY
PORTION  THEREOF,  REQUESTED  IN ACCORDANCE WITH THE PROVISIONS OF PARA-
GRAPH (A) OF SUBDIVISION TWO OF  THIS  SECTION  OR  IS  UNABLE  TO  GIVE
CONSENT TO SUCH A TEST.
  (C)  REASONABLE CAUSE; DEFINITION. FOR THE PURPOSE OF THIS SUBDIVISION
"REASONABLE CAUSE" SHALL  BE  DETERMINED  BY  VIEWING  THE  TOTALITY  OF
CIRCUMSTANCES SURROUNDING THE INCIDENT WHICH, WHEN TAKEN TOGETHER, INDI-
CATE  THAT THE PERSON POSSESSED A FIREARM, RIFLE OR SHOTGUN IN VIOLATION
OF SUBDIVISION NINE OF SECTION 265.01  OF  THIS  ARTICLE.  SUCH  CIRCUM-
STANCES  MAY  INCLUDE, BUT ARE NOT LIMITED TO: EVIDENCE THAT SUCH PERSON
WAS BRANDISHING OR USING THE FIREARM, RIFLE OR SHOTGUN IN  VIOLATION  OF
ANY  PROVISION  OF  THIS  ARTICLE  OR ANY OTHER CRIME AT THE TIME OF THE
INCIDENT; ANY VISIBLE INDICATION  OF  ALCOHOL  OR  DRUG  CONSUMPTION  OR
IMPAIRMENT BY SUCH PERSON; THE EXISTENCE OF AN OPEN CONTAINER CONTAINING
AN  ALCOHOLIC  BEVERAGE  IN  OR  AROUND THE VICINITY OF SUCH PERSON; ANY
OTHER EVIDENCE SURROUNDING THE CIRCUMSTANCES OF THE INCIDENT WHICH INDI-
CATES THAT THE PERSON  POSSESSED  A  FIREARM,  RIFLE  OR  SHOTGUN  WHILE

A. 9902                             6

IMPAIRED  BY  THE  CONSUMPTION OF ALCOHOL OR DRUGS OR WAS INTOXICATED AT
THE TIME OF THE INCIDENT.
  (D)  COURT  ORDER;  PROCEDURE. (1) AN APPLICATION FOR A COURT ORDER TO
COMPEL SUBMISSION TO A CHEMICAL TEST OR ANY PORTION THEREOF, MAY BE MADE
TO ANY SUPREME COURT JUSTICE, COUNTY COURT JUDGE OR DISTRICT COURT JUDGE
IN THE JUDICIAL DISTRICT IN WHICH THE INCIDENT OCCURRED, OR IF THE INCI-
DENT OCCURRED IN THE CITY OF NEW YORK BEFORE ANY SUPREME  COURT  JUSTICE
OR  JUDGE  OF THE CRIMINAL COURT OF THE CITY OF NEW YORK.  SUCH APPLICA-
TION MAY BE COMMUNICATED BY TELEPHONE, RADIO OR OTHER MEANS OF ELECTRON-
IC COMMUNICATION, OR IN PERSON.
  (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  PROVIDED
IN SUBPARAGRAPH THREE OF THIS PARAGRAPH. AFTER BEING SWORN THE APPLICANT
MUST  STATE  THAT  THE  PERSON FROM WHOM THE CHEMICAL TEST WAS REQUESTED
POSSESSED A FIREARM, RIFLE OR SHOTGUN  WITH  WHICH  ANOTHER  PERSON  WAS
KILLED  OR  SERIOUSLY  INJURED  AND,  BASED UPON THE TOTALITY OF CIRCUM-
STANCES, THERE IS REASONABLE CAUSE TO BELIEVE THAT SUCH PERSON POSSESSED
A FIREARM, RIFLE OR SHOTGUN IN VIOLATION OF SUBDIVISION NINE OF  SECTION
265.01  OF THIS ARTICLE AND, AFTER BEING PLACED UNDER LAWFUL ARREST SUCH
PERSON REFUSED TO SUBMIT TO A CHEMICAL TEST OR ANY PORTION  THEREOF,  IN
ACCORDANCE  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.
  (3)  UPON  BEING ADVISED THAT AN ORAL APPLICATION FOR A COURT ORDER TO
COMPEL A PERSON TO SUBMIT TO A CHEMICAL TEST IS BEING MADE, A  JUDGE  OR
JUSTICE  SHALL  PLACE  UNDER  OATH  THE  APPLICANT  AND ANY OTHER PERSON
PROVIDING INFORMATION IN SUPPORT OF THE APPLICATION. SUCH OATH OR  OATHS
AND ALL OF THE REMAINING COMMUNICATION MUST BE RECORDED, EITHER BY MEANS
OF  A  VOICE RECORDING DEVICE OR VERBATIM STENOGRAPHIC OR VERBATIM LONG-
HAND NOTES. IF A VOICE RECORDING DEVICE IS USED OR A STENOGRAPHIC RECORD
MADE, THE JUDGE MUST HAVE THE RECORD TRANSCRIBED, CERTIFY TO THE ACCURA-
CY OF THE TRANSCRIPTION AND FILE THE ORIGINAL RECORD  AND  TRANSCRIPTION
WITH  THE  COURT  WITHIN  SEVENTY-TWO HOURS OF THE ISSUANCE OF THE COURT
ORDER. IF LONGHAND NOTES ARE TAKEN, THE JUDGE SHALL SUBSCRIBE A COPY AND
FILE IT WITH THE COURT WITHIN TWENTY-FOUR HOURS OF THE ISSUANCE  OF  THE
ORDER.
  (4)  IF  THE COURT IS SATISFIED THAT THE REQUIREMENTS FOR THE ISSUANCE
OF A COURT ORDER PURSUANT TO THE PROVISIONS OF  PARAGRAPH  (B)  OF  THIS
SUBDIVISION  HAVE  BEEN  MET,  IT MAY GRANT THE APPLICATION AND ISSUE AN
ORDER REQUIRING THE ACCUSED TO SUBMIT TO A CHEMICAL  TEST  TO  DETERMINE
THE  ALCOHOLIC  AND/OR DRUG CONTENT OF HIS OR HER BLOOD AND ORDERING THE
WITHDRAWAL OF A BLOOD SAMPLE IN ACCORDANCE WITH THE PROVISIONS OF  PARA-
GRAPH  (A)  OF SUBDIVISION FOUR OF THIS SECTION. WHEN A JUDGE OR JUSTICE
DETERMINES TO ISSUE AN ORDER TO COMPEL SUBMISSION  TO  A  CHEMICAL  TEST
BASED  ON  AN ORAL APPLICATION, THE APPLICANT THEREFOR SHALL PREPARE THE
ORDER IN ACCORDANCE WITH THE INSTRUCTIONS OF THE JUDGE OR JUSTICE.    IN
ALL  CASES  THE  ORDER  SHALL  INCLUDE  THE NAME OF THE ISSUING JUDGE OR
JUSTICE, THE NAME OF THE APPLICANT, AND THE DATE AND TIME IT WAS ISSUED.
IT MUST BE SIGNED BY THE JUDGE OR JUSTICE IF ISSUED IN PERSON, OR BY THE
APPLICANT IF ISSUED ORALLY.

A. 9902                             7

  (5) ANY FALSE STATEMENT BY AN APPLICANT OR ANY OTHER PERSON IN SUPPORT
OF AN APPLICATION FOR A COURT ORDER SHALL SUBJECT  SUCH  PERSON  TO  THE
OFFENSES  FOR PERJURY SET FORTH IN ARTICLE TWO HUNDRED TEN OF THIS CHAP-
TER.
  (6)  THE  CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A SCHEDULE
TO PROVIDE THAT A SUFFICIENT NUMBER OF JUDGES OR JUSTICES WILL BE AVAIL-
ABLE IN EACH JUDICIAL DISTRICT  TO  HEAR  ORAL  APPLICATIONS  FOR  COURT
ORDERS AS PERMITTED BY THIS SECTION.
  (E) ADMINISTRATION OF COMPULSORY CHEMICAL TEST. AN ORDER ISSUED PURSU-
ANT  TO THE PROVISIONS OF THIS SUBDIVISION SHALL REQUIRE THAT A CHEMICAL
TEST TO DETERMINE THE ALCOHOLIC AND/OR DRUG CONTENT OF  THE  POSSESSOR'S
BLOOD  MUST  BE  ADMINISTERED. THE PROVISIONS OF PARAGRAPHS (A), (B) AND
(C) OF SUBDIVISION FOUR OF THIS SECTION SHALL BE APPLICABLE TO ANY CHEM-
ICAL TEST ADMINISTERED PURSUANT TO THIS SECTION.
  4. TESTING PROCEDURES. (A) PERSONS AUTHORIZED TO WITHDRAW BLOOD; IMMU-
NITY; TESTIMONY.  (1) AT THE REQUEST OF A POLICE OFFICER, THE  FOLLOWING
PERSONS  MAY WITHDRAW BLOOD FOR THE PURPOSE OF DETERMINING THE ALCOHOLIC
AND/OR DRUG CONTENT THEREIN: (A) A PHYSICIAN, A REGISTERED  PROFESSIONAL
NURSE  OR  A  REGISTERED  PHYSICIAN'S ASSISTANT; OR (B) UNDER THE SUPER-
VISION AND AT THE DIRECTION OF A PHYSICIAN: A MEDICAL LABORATORY TECHNI-
CIAN OR MEDICAL TECHNOLOGIST AS CLASSIFIED BY CIVIL SERVICE;  A  PHLEBO-
TOMIST;  AN  ADVANCED  EMERGENCY  MEDICAL TECHNICIAN AS CERTIFIED BY THE
DEPARTMENT OF HEALTH; OR A  MEDICAL  LABORATORY  TECHNICIAN  OR  MEDICAL
TECHNOLOGIST EMPLOYED BY A CLINICAL LABORATORY APPROVED UNDER TITLE FIVE
OF  ARTICLE  FIVE  OF  THE  PUBLIC HEALTH LAW. THIS LIMITATION SHALL NOT
APPLY TO THE TAKING OF A URINE, SALIVA OR BREATH SPECIMEN.
  (2) NO PERSON ENTITLED TO WITHDRAW BLOOD PURSUANT TO SUBPARAGRAPH  ONE
OF  THIS  PARAGRAPH  OR  HOSPITAL  EMPLOYING  SUCH  PERSON, AND NO OTHER
EMPLOYER OF SUCH PERSON SHALL BE SUED OR HELD LIABLE FOR ANY ACT DONE OR
OMITTED IN THE COURSE OF WITHDRAWING BLOOD AT THE REQUEST  OF  A  POLICE
OFFICER PURSUANT TO THIS SECTION.
  (3)  ANY  PERSON WHO MAY HAVE A CAUSE OF ACTION ARISING FROM THE WITH-
DRAWAL OF BLOOD AS AFORESAID, FOR WHICH  NO  PERSONAL  LIABILITY  EXISTS
UNDER  SUBPARAGRAPH  TWO  OF  THIS  PARAGRAPH,  MAY MAINTAIN SUCH ACTION
AGAINST THE STATE IF ANY PERSON ENTITLED TO WITHDRAW BLOOD  PURSUANT  TO
THIS  PARAGRAPH ACTED AT THE REQUEST OF A POLICE OFFICER EMPLOYED BY THE
STATE, OR AGAINST THE APPROPRIATE POLITICAL SUBDIVISION OF THE STATE  IF
SUCH PERSON ACTED AT THE REQUEST OF A POLICE OFFICER EMPLOYED BY A POLI-
TICAL  SUBDIVISION  OF THE STATE. NO ACTION SHALL BE MAINTAINED PURSUANT
TO THIS SUBPARAGRAPH UNLESS NOTICE OF CLAIM IS DULY FILED OR  SERVED  IN
COMPLIANCE WITH LAW.
  (4)  NOTWITHSTANDING  THE  FOREGOING  PROVISIONS  OF THIS PARAGRAPH AN
ACTION MAY BE MAINTAINED BY THE STATE OR A POLITICAL SUBDIVISION THEREOF
AGAINST A PERSON ENTITLED TO WITHDRAW BLOOD PURSUANT TO SUBPARAGRAPH ONE
OF THIS PARAGRAPH OR HOSPITAL EMPLOYING SUCH PERSON  FOR  WHOSE  ACT  OR
OMISSION  THE  STATE  OR  THE POLITICAL SUBDIVISION HAS BEEN HELD LIABLE
UNDER THIS PARAGRAPH  TO  RECOVER  DAMAGES,  NOT  EXCEEDING  THE  AMOUNT
AWARDED  TO  THE  CLAIMANT, THAT MAY HAVE BEEN SUSTAINED BY THE STATE OR
THE POLITICAL SUBDIVISION BY REASON OF GROSS NEGLIGENCE OR BAD FAITH  ON
THE PART OF SUCH PERSON.
  (5)  THE  TESTIMONY  OF ANY PERSON OTHER THAN A PHYSICIAN, ENTITLED TO
WITHDRAW BLOOD PURSUANT  TO  SUBPARAGRAPH  ONE  OF  THIS  PARAGRAPH,  IN
RESPECT  TO  ANY  SUCH  WITHDRAWAL  OF  BLOOD MADE BY SUCH PERSON MAY BE
RECEIVED IN EVIDENCE WITH THE SAME WEIGHT, FORCE AND EFFECT AS  IF  SUCH
WITHDRAWAL OF BLOOD WERE MADE BY A PHYSICIAN.

A. 9902                             8

  (6)  THE PROVISIONS OF SUBPARAGRAPHS TWO, THREE AND FOUR OF THIS PARA-
GRAPH SHALL ALSO APPLY WITH REGARD TO ANY PERSON EMPLOYED BY A  HOSPITAL
AS SECURITY PERSONNEL FOR ANY ACT DONE OR OMITTED IN THE COURSE OF WITH-
DRAWING  BLOOD  AT  THE  REQUEST OF A POLICE OFFICER PURSUANT TO A COURT
ORDER IN ACCORDANCE WITH SUBDIVISION THREE OF THIS SECTION.
  (B)  RIGHT TO ADDITIONAL TEST. THE PERSON TESTED SHALL BE PERMITTED TO
CHOOSE A PHYSICIAN TO ADMINISTER A CHEMICAL TEST IN ADDITION TO THE  ONE
ADMINISTERED AT THE DIRECTION OF THE POLICE OFFICER.
  (C)  RULES  AND  REGULATIONS.  THE RULES AND REGULATIONS ISSUED BY THE
DEPARTMENT OF HEALTH PURSUANT TO PARAGRAPH (C) OF  SUBDIVISION  FOUR  OF
SECTION  ELEVEN HUNDRED NINETY-FOUR OF THE VEHICLE AND TRAFFIC LAW SHALL
ALSO APPLY TO ANALYSES UNDER THIS SECTION. IF THE ANALYSES WERE MADE  BY
AN  INDIVIDUAL  POSSESSING  A PERMIT ISSUED BY THE DEPARTMENT OF HEALTH,
THIS SHALL BE PRESUMPTIVE EVIDENCE THAT  THE  EXAMINATION  WAS  PROPERLY
GIVEN. THE PROVISIONS OF THIS PARAGRAPH DO NOT PROHIBIT THE INTRODUCTION
AS  EVIDENCE  OF  AN  ANALYSIS MADE BY AN INDIVIDUAL OTHER THAN A PERSON
POSSESSING A PERMIT ISSUED BY THE DEPARTMENT OF HEALTH.
  5. DEFINITIONS. FOR THE PURPOSES OF THIS SECTION:
  (A) "LICENSE" MEANS AND INCLUDES LICENSES ISSUED PURSUANT  TO  SECTION
400.00 OF THIS CHAPTER, AND ANY PERMIT ISSUED BY A COUNTY, CITY, TOWN OR
VILLAGE  PURSUANT  TO A LOCAL LAW, CODE OR ORDINANCE WHICH RESTRICTS THE
POSSESSION AND PURCHASE OF RIFLES AND SHOTGUNS.
  (B) "LICENSING AUTHORITY" MEANS THE LICENSING OFFICER OR AGENCY  WHICH
ISSUES A LICENSE.
S 265.50 CHEMICAL TEST EVIDENCE.
  1.  ADMISSIBILITY.  UPON THE TRIAL OF ANY ACTION OR PROCEEDING ARISING
OUT OF ACTIONS ALLEGED TO HAVE BEEN COMMITTED BY ANY PERSON ARRESTED FOR
A VIOLATION OF SUBDIVISION NINE OF SECTION 265.01 OF THIS  ARTICLE,  THE
COURT  SHALL  ADMIT  EVIDENCE  OF  THE AMOUNT OF ALCOHOL OR DRUGS IN THE
DEFENDANT'S BLOOD AS SHOWN  BY  A  TEST  ADMINISTERED  PURSUANT  TO  THE
PROVISIONS OF SECTION 265.45 OF THIS ARTICLE.
  2. PROBATIVE VALUE. THE FOLLOWING EFFECT SHALL BE GIVEN TO EVIDENCE OF
BLOOD-ALCOHOL CONTENT, AS DETERMINED BY SUCH TESTS, OF A PERSON ARRESTED
FOR VIOLATION OF SUBDIVISION NINE OF SECTION 265.01 OF THIS ARTICLE:
  (A) EVIDENCE THAT THERE WAS .05 OF ONE PER CENTUM OR LESS BY WEIGHT OF
ALCOHOL  IN  SUCH  PERSON'S BLOOD SHALL BE PRIMA FACIE EVIDENCE THAT THE
ABILITY OF SUCH PERSON TO SAFELY POSSESS A FIREARM, RIFLE OR SHOTGUN WAS
NOT IMPAIRED BY THE CONSUMPTION OF ALCOHOL, AND THAT SUCH PERSON WAS NOT
IN AN INTOXICATED CONDITION;
  (B) EVIDENCE THAT THERE WAS MORE THAN .05 OF ONE PER CENTUM  BUT  LESS
THAN  .07  OF ONE PER CENTUM BY WEIGHT OF ALCOHOL IN SUCH PERSON'S BLOOD
SHALL BE PRIMA FACIE EVIDENCE THAT SUCH PERSON WAS NOT IN AN INTOXICATED
CONDITION, BUT SUCH EVIDENCE SHALL BE RELEVANT EVIDENCE, BUT  SHALL  NOT
BE  GIVEN PRIMA FACIE EFFECT, IN DETERMINING WHETHER THE ABILITY OF SUCH
PERSON TO SAFELY POSSESS A FIREARM, RIFLE OR SHOTGUN WAS IMPAIRED BY THE
CONSUMPTION OF ALCOHOL; AND
  (C) EVIDENCE THAT THERE WAS .07 OF ONE PER CENTUM  OR  MORE  BUT  LESS
THAN  .08  OF ONE PER CENTUM BY WEIGHT OF ALCOHOL IN SUCH PERSON'S BLOOD
SHALL BE PRIMA FACIE EVIDENCE THAT SUCH PERSON WAS NOT IN AN INTOXICATED
CONDITION, BUT SUCH EVIDENCE SHALL BE GIVEN PRIMA FACIE EFFECT IN DETER-
MINING WHETHER THE ABILITY OF SUCH PERSON TO SAFELY POSSESS  A  FIREARM,
RIFLE OR SHOTGUN WAS IMPAIRED BY THE CONSUMPTION OF ALCOHOL.
  3.  SUPPRESSION.  A  DEFENDANT  WHO  HAS BEEN COMPELLED TO SUBMIT TO A
CHEMICAL TEST PURSUANT TO THE PROVISIONS OF SUBDIVISION THREE OF SECTION
265.45 OF THIS ARTICLE MAY MOVE FOR THE SUPPRESSION OF SUCH EVIDENCE  IN
ACCORDANCE  WITH ARTICLE SEVEN HUNDRED TEN OF THE CRIMINAL PROCEDURE LAW

A. 9902                             9

ON THE GROUNDS THAT THE ORDER WAS OBTAINED AND THE TEST ADMINISTERED  IN
VIOLATION  OF THE PROVISIONS OF SUCH SUBDIVISION OR ANY OTHER APPLICABLE
LAW.
  S  6. Subdivision 11 of section 400.00 of the penal law, as amended by
chapter 210 of the laws of 1999, is amended to read as follows:
  11. License: revocation and suspension. The conviction of  a  licensee
anywhere of a felony or serious offense shall operate as a revocation of
the  license.  A  license may be revoked or suspended as provided for in
SUBDIVISION TWO OF SECTION 265.45 OF THIS CHAPTER, section 530.14 of the
criminal procedure law or section eight hundred forty-two-a of the fami-
ly court act. Except for a license issued pursuant to section 400.01  of
this  article, a license may be revoked and cancelled at any time in the
city of New York, and in the counties of  Nassau  and  Suffolk,  by  the
licensing  officer,  and  elsewhere  than in the city of New York by any
judge or justice of a court of record;  a  license  issued  pursuant  to
section  400.01 of this article may be revoked and cancelled at any time
by the licensing officer or any judge or justice of a court  of  record.
The  official revoking a license shall give written notice thereof with-
out unnecessary delay to the executive  department,  division  of  state
police,  Albany,  and shall also notify immediately the duly constituted
police authorities of the locality.
  S 7. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that any actions, includ-
ing but not limited to the promulgation of rules and regulations, neces-
sary to implement the provisions of this act on its effective  date  are
authorized and directed to be made and completed on or before such date.