senate Bill S3615

Requires police officers who have discharged their weapon in the course of their employment to be tested for the presence of drugs and/or alcohol

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 28 / Feb / 2011
    • REFERRED TO LABOR
  • 04 / Jan / 2012
    • REFERRED TO LABOR

Summary

Requires police officers who have discharged their weapon in the course of their employment to be tested for the presence of drugs and/or alcohol within three hours of such discharge; establishes procedures to protect the integrity of such process; applies to officers employed in cities with a population of 1,000,000 or more.

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Bill Details

See Assembly Version of this Bill:
A5004
Versions:
S3615
Legislative Cycle:
2011-2012
Current Committee:
Senate Labor
Law Section:
Labor Law
Laws Affected:
Add Art 20-D ยงยง745 - 751, Lab L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S2592, A1477
2007-2008: A786

Sponsor Memo

BILL NUMBER:S3615

TITLE OF BILL:
An act
to amend the labor law, in relation to drug and alcohol testing of
police officers

PURPOSE:
This bill would amend the labor law by adding new
article 20-D sections
745, 746, 747, 748, 749, 750 and 751 to require drug and alcohol
testing of police officers under certain circumstances after the
discharge of their weapons during the course of their duties.

This bill would require drug and alcohol testing of New York City
police officers if the circumstances surrounding the discharge of
their weapons include serious physical injury or death of another and
in the course of the initial investigation any creditable evidence
suggest such discharge was carried out unlawfully or improperly; or
while in the course of his or her employment, as a police officer,
discharges of firearms and has had a prior determination of
misconduct involving use of excessive force or abuse of police
powers; or reasonable suspicion exist to believe that such police
officer, while during the course of his or her employment,has
unlawfully ingested drugs or consumed alcohol.

This bill also provides for testing procedures, confidentiality,
protection of the collective bargaining process, applicability, and
severability.

FISCAL IMPLICATION:
None.

LEGISLATIVE HISTORY:
Wright A.1750-A Referred to Labor 2002
2003-04: A.1770
2005-06: A.767
2007-08: A.786
Adams: S.7352 Referred to Labor 04/02/08
A.1477/S.2592 Held in Labor

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law, provided, however, effective immediately the division
of criminal justice services shall be authorized to adopt any such
rules and regulations deemed necessary to effect the provisions of
this act.

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

                                  3615

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 28, 2011
                               ___________

Introduced  by  Sen.  ADAMS  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law, in relation to drug and  alcohol  testing
  of police officers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new  article  20-D  to
read as follows:
                               ARTICLE 20-D
               DRUG AND ALCOHOL TESTING OF POLICE OFFICERS
SECTION 745. DEFINITIONS.
        746. DRUG AND ALCOHOL TESTING OF POLICE OFFICERS.
        747. TESTING PROCEDURES.
        748. CONFIDENTIALITY.
        749. RELATION TO COLLECTIVE BARGAINING.
        750. APPLICABILITY.
        751. SEVERABILITY.
  S  745.  DEFINITIONS.  WHEN  USED IN THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  1. "ALCOHOL" MEANS ANY BEVERAGE LISTED IN SECTION THREE OF  THE  ALCO-
HOLIC BEVERAGE CONTROL LAW.
  2. "CONTROLLED SUBSTANCE" OR "DRUG" MEANS ANY ITEM OR SUBSTANCE LISTED
IN SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.
  3. "EMPLOYEE" OR "POLICE OFFICER" MEANS A POLICE OFFICER AS DEFINED IN
SECTION  1.20  OF  THE  CRIMINAL PROCEDURE LAW WHO IS EMPLOYED IN A CITY
WITH A POPULATION OF ONE MILLION OR MORE.
  4. "EMPLOYER" MEANS THE CITY WITH A POPULATION OF ONE MILLION OR  MORE
WHICH  EMPLOYS  THE  POLICE OFFICER WHO IS THE SUBJECT OF A TEST FOR THE
PRESENCE OF ALCOHOL OR A CONTROLLED SUBSTANCE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03753-01-1

S. 3615                             2

  5. "LABORATORY" MEANS A PUBLIC OR PRIVATE  LABORATORY  WHICH  PERFORMS
FORENSIC  DRUG TESTING AND WHICH IS NOT OWNED OR OPERATED BY THE EMPLOY-
ER.
  6.  "FIREARM" MEANS ANY FIREARM, RIFLE, SHOTGUN OR MACHINE GUN, ALL AS
DEFINED IN SECTION 265.00 OF THE PENAL LAW.
  S  746.  DRUG  AND  ALCOHOL TESTING OF POLICE OFFICERS.   1.  A POLICE
OFFICER SHALL SUBMIT TO A CHEMICAL TEST IN ACCORDANCE WITH PROVISIONS OF
THIS SECTION OF ONE OR MORE OF THE FOLLOWING: BREATH,  BLOOD,  URINE  OR
SALIVA, FOR THE PURPOSE OF DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT
OF  HIS OR HER BLOOD WHEN ANY ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES
APPLIES:
  (A) SUCH POLICE OFFICER, WHILE IN THE COURSE OF HIS OR HER  EMPLOYMENT
AS  A POLICE OFFICER, DISCHARGES A FIREARM AND SUCH DISCHARGE RESULTS IN
SERIOUS PHYSICAL INJURY OR DEATH OF ANOTHER, AND, IN THE COURSE  OF  THE
INITIAL  INVESTIGATION OF SUCH DISCHARGE, ANY CREDIBLE EVIDENCE SUGGESTS
THAT SUCH DISCHARGE MAY HAVE BEEN CARRIED OUT UNLAWFULLY OR IMPROPERLY;
  (B) SUCH POLICE OFFICER, WHILE IN THE COURSE OF HIS OR HER  EMPLOYMENT
AS  A  POLICE  OFFICER,  DISCHARGES A FIREARM AND SUCH OFFICER HAS HAD A
PRIOR DETERMINATION OF MISCONDUCT INVOLVING AN EXCESSIVE USE OF FORCE OR
AN ABUSE OF POLICE POWERS; OR
  (C) REASONABLE SUSPICION EXISTS TO BELIEVE THAT SUCH  POLICE  OFFICER,
WHILE  IN  THE  COURSE OF HIS OR HER EMPLOYMENT AS A POLICE OFFICER, HAS
UNLAWFULLY INGESTED DRUGS, OR HAS CONSUMED ALCOHOL WHILE IN  THE  COURSE
OF HIS OR HER EMPLOYMENT AS A POLICE OFFICER, OR HAS CONSUMED ALCOHOL TO
SUCH  A  DEGREE  THAT  HIS  OR  HER ABILITY TO SAFELY PERFORM THE DUTIES
ATTENDANT TO SUCH EMPLOYMENT HAVE BEEN IMPAIRED.
  THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION SHALL NOT
APPLY TO ANY POLICE OFFICER WHO DISCHARGES A FIREARM DURING  THE  COURSE
OF FIREARMS PROFICIENCY TRAINING OR FIREARMS PROFICIENCY QUALIFICATION.
  2.  CHEMICAL  TESTING AUTHORIZED BY THIS SECTION SHALL BE ADMINISTERED
AS SOON AS POSSIBLE BUT IN NO EVENT MORE THAN THREE HOURS AFTER  ANY  OF
THE  CIRCUMSTANCES  DESCRIBED  IN  SUBDIVISION  ONE OF THIS SECTION HAVE
OCCURRED. FAILURE BY SUCH POLICE OFFICER TO COMPLY  WITH  SUCH  CHEMICAL
TESTING  REQUIREMENTS  IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION
SHALL SUBJECT SUCH OFFICER TO DISCIPLINARY PROCEEDINGS.
  S 747. TESTING PROCEDURES. 1. THE EMPLOYER SHALL PROVIDE ALL EMPLOYEES
WITH A WRITTEN POLICY IDENTIFYING THOSE INSTANCES UNDER WHICH A DRUG AND
ALCOHOL TEST SHALL BE ADMINISTERED AND THE PROCEDURES TO BE FOLLOWED.
  2. ALL SAMPLE ANALYSIS  SHALL  BE  CONDUCTED  BY  A  LABORATORY  WHICH
PERFORMS FORENSIC DRUG TESTING.
  3.    ALL EMPLOYERS AND LABORATORIES ENGAGED IN THE COLLECTION, HANDL-
ING, TESTING OR STORAGE OF SAMPLES FOR  THE  PURPOSES  OF  THIS  ARTICLE
SHALL  ADHERE  TO THE PROCEDURES FOR THE CUSTODY, INTEGRITY AND SECURITY
OF SUCH SAMPLES THAT COMPLY WITH REGULATIONS PROMULGATED BY THE DIVISION
OF CRIMINAL JUSTICE SERVICES.
  4. AT THE REQUEST OF THE EMPLOYEE, THE EMPLOYER SHALL PERMIT A  REPRE-
SENTATIVE  OF THE EMPLOYEE'S COLLECTIVE BARGAINING UNIT TO BE PRESENT AT
THE TIME OF ANY SAMPLE COLLECTION. IN THE EVENT THAT  SUCH  A  REPRESEN-
TATIVE IS NOT AVAILABLE WITHIN A REASONABLE PERIOD OF TIME, A CO-EMPLOY-
EE  WITHIN  THE SAME COLLECTIVE BARGAINING UNIT MAY BE DESIGNATED BY THE
EMPLOYEE TO ACT AS A REPRESENTATIVE FOR THIS PURPOSE.
  5. THE EMPLOYER SHALL SIMULTANEOUSLY COLLECT TWO SAMPLES  IN  SEPARATE
CONTAINERS AND PROMPTLY SUBMIT BOTH TO A LABORATORY. ONE SAMPLE SHALL BE
PRESERVED IN A SECURE FACILITY IN SUCH A WAY THAT IT MAY BE SUBSEQUENTLY
TESTED  FOR  THE PRESENCE OF A CONTROLLED SUBSTANCE IN THE EVENT TESTING

S. 3615                             3

OF THE OTHER SAMPLE INDICATES A POSITIVE RESULT FOR THE PRESENCE OF SUCH
A SUBSTANCE.
  6.  ANY  SAMPLE  THAT  INITIALLY  TESTS POSITIVE FOR THE PRESENCE OF A
CONTROLLED  SUBSTANCE  OR  ALCOHOL  SHALL,  WHERE  APPLICABLE,  ALSO  BE
SUBJECTED  TO  A CONFIRMATORY TEST BY GAS CHROMATOGRAPHY WITH MASS SPEC-
TROMETRY OR AN EQUIVALENT SCIENTIFICALLY ACCEPTED METHOD  THAT  PROVIDES
QUANTITATIVE   DATA   REGARDING   THE   DETECTED  CONTROLLED  SUBSTANCE,
CONTROLLED SUBSTANCE METABOLITES OR ALCOHOL.
  7. A LABORATORY SHALL REPORT TO AN EMPLOYER THAT A SAMPLE IS  POSITIVE
ONLY IF BOTH THE INITIAL TEST AND THE CONFIRMATION TEST ARE POSITIVE FOR
THE PRESENCE OF A CONTROLLED SUBSTANCE.
  8. WITHIN THIRTY DAYS OF RECEIVING A REPORT INDICATING A POSITIVE TEST
RESULT,  THE EMPLOYER SHALL PROVIDE THE EMPLOYEE TESTED WITH AN OPPORTU-
NITY TO HAVE THE OTHER PRESERVED SAMPLE TESTED FOR  THE  PRESENCE  OF  A
CONTROLLED  SUBSTANCE  OR  ALCOHOL  AT  A  LABORATORY  DESIGNATED BY THE
EMPLOYEE. THE TEST MAY BE AT THE EXPENSE OF THE EMPLOYEE. THE SAMPLE AND
TEST IN SUCH EVENT SHALL REMAIN SUBJECT TO THE TESTING, PRESERVATION AND
REPORTING REQUIREMENTS OF THIS SECTION AND THE RESULT OF ANY  SUCH  TEST
SHALL  BE  PROVIDED  TO  THE  EMPLOYEE  AND,  AT  THE EMPLOYEE'S WRITTEN
REQUEST, HIS OR HER COLLECTIVE BARGAINING REPRESENTATIVE.
  9. ALL TEST RESULTS FROM THE LABORATORY SHALL BE IN WRITING AND  SHALL
CONTAIN, AT A MINIMUM, THE FOLLOWING INFORMATION:
  (A)  THE  METHOD OF ANALYSIS FOR BOTH THE INITIAL AND ANY CONFIRMATORY
TEST;
  (B) THE RESULTS OF EACH TEST;
  (C) THE SENSITIVITY OF THE METHODOLOGY EMPLOYED FOR CONFIRMATION,  THE
DETECTION  LEVEL,  MEANING  THE  CUT-OFF  OR MEASURE USED TO DISTINGUISH
POSITIVE AND NEGATIVE SAMPLES, ON BOTH THE INITIAL SCREENING AND CONFIR-
MATION PROCEDURES IF THE SAMPLE IS FOUND TO BE POSITIVE;
  (D) THE ACCURACY AND PRECISION OF THE QUANTITATIVE DATA  REPORTED  FOR
THE  CONFIRMATION  TEST;  HOWEVER,  IN  THE CASE OF A NEGATIVE TEST, THE
REPORT SHALL SPECIFY ONLY THAT THE  TEST  WAS  NEGATIVE  FOR  CONTROLLED
SUBSTANCES; AND
  (E)  THE  NAME  AND ADDRESS OF THE LABORATORY PERFORMING THE ANALYSIS,
THE DATE THAT THE TEST WAS ADMINISTERED AND ANALYSIS WAS PERFORMED.
  10. AFTER RECEIPT BY THE  EMPLOYER  OF  A  REPORT  FROM  A  LABORATORY
CONTAINING  THE  RESULT  OF  A  TEST, THE EMPLOYER SHALL PROVIDE WRITTEN
NOTIFICATION OF SUCH  RESULT,  WHETHER  POSITIVE  OR  NEGATIVE,  TO  THE
EMPLOYEE. THE NOTIFICATION SHALL BE PROVIDED WITHIN THE EMPLOYEE'S FIRST
FIVE  WORKING  DAYS  IMMEDIATELY FOLLOWING THE RECEIPT OF SUCH REPORT BY
THE EMPLOYER DURING WHICH THE EMPLOYEE IS IN  PERSONAL  ATTENDANCE  EACH
DAY AT A FACILITY OPERATED BY THE EMPLOYER.
  11.  WITHIN  THIRTY  DAYS  AFTER  THE RECEIPT OF A REPORT CONTAINING A
NEGATIVE TEST RESULT, THE EMPLOYER SHALL DESTROY  ALL  RECORDS,  REPORTS
AND  OTHER DOCUMENTS IN ITS POSSESSION RELATED TO THE TEST AND SHALL NOT
THEREAFTER  MAKE  REFERENCE  TO  THE  TEST  IN  ANY   EMPLOYMENT-RELATED
PROCEEDINGS.
  12. THE LABORATORY SHALL PRESERVE ALL SAMPLES IN A SECURE FACILITY FOR
SIXTY DAYS AFTER THE ISSUANCE OF A TEST REPORT AND, UPON WRITTEN REQUEST
FOR  FURTHER  PRESERVATION  BY  THE EMPLOYER OR EMPLOYEE RECEIVED WITHIN
SUCH PERIOD, FOR SUCH AN ADDITIONAL PERIOD OF TIME AS MAY  BE  SPECIFIED
IN THE REQUEST.
  13.  IN THE COURSE OF ANY DISCIPLINARY OR JUDICIAL PROCEEDINGS INVOLV-
ING A POSITIVE TEST RESULT, AN EMPLOYEE SHALL HAVE  THE  OPPORTUNITY  TO
PRESENT  EVIDENCE  ON THE SIGNIFICANCE AND ACCURACY OF THE TEST RESULTS.
AN EMPLOYEE MAY ALSO PRESENT EVIDENCE THAT THE PROCEDURES FOLLOWED  WITH

S. 3615                             4

RESPECT  TO  THE  COLLECTION, HANDLING, TESTING OR STORAGE OF THE SAMPLE
DESTROYED THE VALIDITY OF THE SAMPLE OR THE  TEST  RESULT.  AN  EMPLOYEE
SHALL  ALSO  BE GIVEN THE OPPORTUNITY, AT HIS OR HER REQUEST, TO PRESENT
THE  RESULT  OF  ANY  TEST FOR THE PRESENCE OF A CONTROLLED SUBSTANCE OR
ALCOHOL WHICH MAY HAVE BEEN PERFORMED ON THE OTHER SAMPLE.
  14. ANY EMPLOYER OR LABORATORY  THAT  IS  FOUND,  THROUGH  LITIGATION,
ARBITRATION  OR  ADMINISTRATIVE  PROCEEDING, TO HAVE GENERATED OR RELIED
UPON A POSITIVE TEST RESULT OF THE SUBJECT EMPLOYEE THAT IS EITHER FALSE
OR NOT SUPPORTED BY LABORATORY DOCUMENTATION SHALL REPORT  THAT  FINDING
IN  WRITING TO THE COMMISSIONER OF HEALTH AND THE COMMISSIONER OF CRIMI-
NAL JUSTICE SERVICES WITHIN THIRTY DAYS OF THE FINAL DISPOSITION OF SUCH
A PROCEEDING.
  S 748. CONFIDENTIALITY. 1.  EMPLOYERS,  LABORATORIES  AND  THE  AGENTS
THEREOF  WHO RECEIVE OR HAVE ACCESS TO INFORMATION CONCERNING DRUG TESTS
AND THEIR RESULTS SHALL KEEP ALL SUCH INFORMATION  CONFIDENTIAL.  EXCEPT
WHERE  THE RELEASE OF SUCH INFORMATION IS COMPELLED BY SUBPOENA OR COURT
ORDER, ANY SUCH INFORMATION  SHALL  BE  RELEASED  ONLY  UPON  A  WRITTEN
CONSENT VOLUNTARILY EXECUTED BY THE EMPLOYEE. ANY CONSENT SHALL CONTAIN,
AT A MINIMUM, THE FOLLOWING INFORMATION:
  (A) THE NAME OR NAMES OF PERSONS AUTHORIZED TO OBTAIN THE INFORMATION;
  (B) THE PURPOSE OF THE DISCLOSURE;
  (C) THE PRECISE INFORMATION TO BE DISCLOSED; AND
  (D) THE DURATION OF THE CONSENT.
  2.  THIS  SECTION SHALL NOT APPLY TO PROCEEDINGS IN WHICH THE EMPLOYEE
IS ACCUSED OF A CRIMINAL VIOLATION, NOR SHALL IT APPLY  TO  DISCIPLINARY
OR  JUDICIAL  PROCEEDINGS  RELATING  TO  EMPLOYMENT,  OR  TO PROSPECTIVE
EMPLOYMENT INQUIRIES RECEIVED FROM ANY LAW ENFORCEMENT AGENCY.
  S 749. RELATION TO COLLECTIVE BARGAINING. 1. NOTHING IN  THIS  ARTICLE
SHALL  BE  CONSTRUED TO PROHIBIT, AS A SUBJECT OF COLLECTIVE BARGAINING,
THE  ESTABLISHMENT  AND  TERMS  OF  A  PROGRAM  TO  TEST  EMPLOYEES  FOR
CONTROLLED  SUBSTANCES  WHICH  IS CONSISTENT WITH THE PROVISIONS OF THIS
ARTICLE.
  2. NOTHING IN THIS ARTICLE SHALL SUPERSEDE ANY  COLLECTIVE  BARGAINING
AGREEMENT IN EFFECT ON THE EFFECTIVE DATE OF THIS ARTICLE. NO COLLECTIVE
BARGAINING  AGREEMENT  COMMENCING ON OR AFTER THE EFFECTIVE DATE OF THIS
ARTICLE MAY AUTHORIZE TESTING OF  EMPLOYEES  FOR  CONTROLLED  SUBSTANCES
UNLESS  IT  CONTAINS  TESTING  PROCEDURES  WHICH ARE CONSISTENT WITH THE
PROVISIONS OF THIS ARTICLE.
  S 750. APPLICABILITY. THE PROVISIONS OF THIS ARTICLE SHALL ONLY  APPLY
TO  POLICE  OFFICERS EMPLOYED IN A CITY WITH A POPULATION OF ONE MILLION
OR MORE.
  S 751. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE  APPLICA-
TION  THEREOF  TO  ANY EMPLOYEE OR CIRCUMSTANCES ARE HELD TO BE INVALID,
SUCH INVALIDITY SHALL NOT AFFECT OTHER  PROVISIONS  OR  APPLICATIONS  OF
THIS  ARTICLE WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR
APPLICATION, AND TO THIS END THE PROVISIONS OF THIS ARTICLE ARE  SEVERA-
BLE.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law, provided, however, effective immediately the division
of criminal justice services shall be authorized to adopt any such rules
and regulations deemed necessary to effect the provisions of this act.

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