senate Bill S704

Establishes procedure for the suspension and revocation of license to carry and possess firearm if carrying while under the influence of alcohol or drugs

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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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  • 09 / Jan / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Establishes procedure for the suspension and revocation of license to carry and possess a firearm if a person carries loaded firearm on person in a public place while under the influence of alcohol or drugs, or if a person who is so charged refuses to submit to a chemical test to determine the alcohol or drug levels in blood; requires person to successfully complete an alcohol and drug rehabilitation program as a condition of the suspension.

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Bill Details

Versions:
S704
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §400.00, Pen L; add §837-s, Exec L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S650
2009-2010: S132

Sponsor Memo

BILL NUMBER:S704

TITLE OF BILL:
An act
to amend the penal law and the executive law, in relation to the
possession of a firearm while under the influence of alcohol or drugs

PURPOSE OR GENERAL IDEA OF BILL:
This bill provides for the suspension
of a firearm license for up to a one year period where the licensee
is found to be under the influence of alcohol or a controlled
substance while in possession of a loaded firearm in a public place
or where the licensee refuses to submit to a chemical test by a
police officer who has reasonable grounds to believe that such a
violation has occurred.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 contains a declaration of legislative intent.

Section 2 amends section 400.00(1) of the penal law to make a person
whose firearm license is under suspension for possessing a firearm in
a public place while under the influence of alcohol or drugs
ineligible for the issuance or renewal of a firearm license.

Section 3 amends section 400.00 (11) of the penal law to revoke the
firearms license of a person who has a second violation for the
possession of a firearm while under the influence of alcohol or drugs
within 10 years of a prior violation.

Section 4 adds a new subdivision 11-a to section 400.00 of the penal law.

Paragraph (a) of subdivision 11-a provides that no licensee of
firearms shall possess any loaded firearm on his person in a public
place while such licensee is either under the influence of alcohol or
under the influence of a controlled substance. A person is considered
under the influence or alcohol or under the influence of a controlled
substance when the person has voluntarily consumed alcohol or
voluntarily used one or more controlled substances, or both, to the
extent that his ability to safely handle or use a loaded firearm has
been significantly diminished.

Paragraph (b) of subdivision 11-a deems suspended, pending a hearing,
the tirearms license with respect to any firearm(s) which form the
basis of a charge of possessing a firearm while under the influence
of alcohol or drugs or a refusal to submit to a chemical test for the
purpose of detennining the alcoholic and/or drug content of a
person's blood. Paragraph (b) authorizes the confiscation of such
firearm(s) by police pending the suspension hearing.

Paragraph (c) of subdivision 11-a provides that a person who holds a
license to can) or possess a firearm impliedly consents to a
chemical test of his breath, blood, urine or saliva to determine the
alcoholic and/or drug content of his blood where a police officer has
reasonable grounds to believe that the person possesses a loaded
firearm while under the influence of alcohol or drugs.


Paragraph (d) of subdivision 11-a sets forth the license suspension
hearing requirements. Hearings are to be conducted within 7 days of
the alleged violation before the appropriate licensing officer, or,
if the hearing is not held within 7 days, the license of the person
must be reinstated and any lawfully possessed firearms and ammunition
confiscated by the police must be returned pending a hearing. If the
licensee is found to be in violation of possessing a firearm while
under the influence of alcohol or drugs, the licensing officer must
immediately suspend the person's license for a period not exceeding
one year and the person must surrender his license, any amendment
thereto, and any weapons held pursuant to such license. Persons
whose license is suspended must successfully complete, as a condition
for reinstatement of a firearms license, an alcohol and/or drug
rehabilitation program.

Paragraph (f) of subdivision 11-a contains evidentiary standards
regarding the use of blood-alcohol tests applicable in a suspension
hearing.

Paragraph (h) of subdivision 11-a provides for the right to appeal the
decision made at a hearing.

Paragraph (i) of subdivision 11-a authorizes a police officer to
temporarily detain a person whom sllch officer reasonably believes is
in violation of this section for the sole purpose of administering a
chemical test to determine whether the person is under the influence
of alcohol or drugs.

Section 5 Amends section 400.00 (15) of the penal law to clarify that
possession of a firearm while under the influence of alcohol or drugs
is not, in and of itself, a crime.

Section 6 adds a new section 837-s to the executive law to establish
the alcohol and drug rehabilitation program required of all persons
found to be under the influence of alcohol or drugs while in
possession of a loaded firearm, which program must be completed in
order to reinstate the person's firearms license.

JUSTIFICATION:
Individuals who have been granted the privilege by the
state of obtaining a fireanns license should not be permitted to
abuse this privilege by possessing a firearm while under the
influence of alcohol or drugs. Possessing a loaded firearm while
intoxicated possesses a serious threat to the citizens of this state.
Enactment of this legislation would decrease the possibility of an
accidental or intentional discharge of a firearm by a person whose
judgment is impaired by alcohol or drugs.

LEGISLATIVE HISTORY:
S.1899A of 2007
01/29/07 Referred to Codes
S.650 of 2011
01/05/11 REFERRED TO CODES
01/04/12 REFERRED TO CODES

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.


EFFECTIVE DATE:
First day of November next succeeding the date on
which it shall have become a law.

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

                                   704

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

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

AN ACT to amend the penal law and the executive law, in relation to  the
  possession of a firearm 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.  Legislative  intent.  The  legislature  hereby  finds  and
declares  that  the  serious and dangerous consequences which may result
when persons otherwise lawfully in possession of a firearm are under the
influence of alcohol or a  controlled  substance  demand  immediate  and
forthwith  state  action. There is no compelling reason to permit such a
person to retain the privilege to carry and possess a  firearm,  knowing
full  well  the  dire consequences which may occur when alcohol or drugs
and firearms are combined.   Therefore, in enacting  the  provisions  of
this  act,  the  state  takes  the  extraordinary step of suspending the
license to carry and possess a firearm of any person found to  be  under
the influence of alcohol or a controlled substance while actually carry-
ing  a  loaded firearm on his or her person in a public place, or who if
charged with such activity refuses to  submit  to  a  chemical  test  to
determine the alcohol or drug content of his or her blood.
  S  2.  Subdivision 1 of section 400.00 of the penal law, as amended by
chapter 189 of the laws of 2000, is amended to read as follows:
  1. Eligibility. No license shall be issued or renewed pursuant to this
section except by the licensing officer, and then  only  after  investi-
gation  and  finding  that  all statements in a proper application for a
license are true. No license shall be issued or renewed  except  for  an
applicant  (a) twenty-one years of age or older, provided, however, that
where such applicant has  been  honorably  discharged  from  the  United
States  army,  navy,  marine  corps,  air  force  or coast guard, or the
national guard of the state of New York, no such age  restriction  shall

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00561-01-3

S. 704                              2

apply;  (b)  of  good  moral  character;  (c) who has not been convicted
anywhere of a felony or a serious offense; (d) who has stated whether he
or she has ever suffered any mental illness  or  been  confined  to  any
hospital  or institution, public or private, for mental illness; (e) who
has not had a license revoked or who is not under a suspension or  inel-
igibility  order  issued  pursuant  to  the  provisions  of  SUBDIVISION
ELEVEN-A OF THIS SECTION, section 530.14 of the criminal  procedure  law
or section eight hundred forty-two-a of the family court act; (f) in the
county  of Westchester, who has successfully completed a firearms safety
course and test as evidenced by a certificate of  completion  issued  in
his or her name and endorsed and affirmed under the penalties of perjury
by a duly authorized instructor, except that: (i) persons who are honor-
ably discharged from the United States army, navy, marine corps or coast
guard,  or  of  the national guard of the state of New York, and produce
evidence of official  qualification  in  firearms  during  the  term  of
service  are  not  required  to have completed those hours of a firearms
safety course pertaining to the safe use, carrying, possession,  mainte-
nance  and  storage  of a firearm; and (ii) persons who were licensed to
possess a pistol or revolver prior to the effective date of  this  para-
graph  are  not  required to have completed a firearms safety course and
test; and (g) concerning whom no good cause exists for the denial of the
license. No person shall engage in the business of gunsmith or dealer in
firearms unless licensed pursuant  to  this  section.  An  applicant  to
engage  in  such  business shall also be a citizen of the United States,
more than twenty-one years of age and maintain a place  of  business  in
the  city  or  county where the license is issued. For such business, if
the applicant is a firm or partnership, each member thereof shall comply
with all of the requirements set forth in this subdivision  and  if  the
applicant is a corporation, each officer thereof shall so comply.
  S  3. 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
section 530.14 of the criminal procedure law or  section  eight  hundred
forty-two-a  of the family court act. Except for a license issued pursu-
ant 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  without  unnecessary delay to the executive department,
division of state police, Albany, and shall also notify immediately  the
duly  constituted  police  authorities of the locality.  FOR PURPOSES OF
THIS SUBDIVISION, THE TERM "SERIOUS OFFENSE" SHALL INCLUDE, BUT  NOT  BE
LIMITED  TO,  A SECOND VIOLATION OF SUBDIVISION ELEVEN-A OF THIS SECTION
WITHIN TEN YEARS OF A PRIOR VIOLATION OF SUCH SUBDIVISION.
  S 4. Section 400.00 of the penal law is amended by adding a new subdi-
vision 11-a to read as follows:
  11-A. LICENSE; SUSPENSION FOR POSSESSION WHILE UNDER THE INFLUENCE  OF
ALCOHOL  OR  A  CONTROLLED  SUBSTANCE. (A) NO LICENSEE SHALL POSSESS ANY
LOADED FIREARM, AS DEFINED IN SUBDIVISION FIFTEEN OF SECTION  265.00  OF
THIS CHAPTER, ON HIS OR HER PERSON IN A PUBLIC PLACE WHILE SUCH LICENSEE
IS  EITHER  UNDER  THE  INFLUENCE OF ALCOHOL OR UNDER THE INFLUENCE OF A

S. 704                              3

CONTROLLED SUBSTANCE, AS DEFINED IN SECTIONS  THIRTY-THREE  HUNDRED  TWO
AND  THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.  FOR PURPOSES OF
THIS SUBDIVISION, A PERSON IS CONSIDERED TO BE UNDER  THE  INFLUENCE  OF
ALCOHOL  OR  UNDER  THE  INFLUENCE  OF A CONTROLLED SUBSTANCE WHERE SUCH
PERSON HAS VOLUNTARILY CONSUMED ALCOHOL OR VOLUNTARILY USED ONE OR  MORE
CONTROLLED SUBSTANCES, OR BOTH, TO THE EXTENT THAT HIS OR HER ABILITY TO
SAFELY HANDLE OR USE A LOADED FIREARM HAS BEEN SIGNIFICANTLY DIMINISHED.
FOR  PURPOSES  OF  THIS  SUBDIVISION, "PUBLIC PLACE" SHALL HAVE THE SAME
MEANING AS IN  SUBDIVISION  ONE  OF  SECTION  240.00  OF  THIS  CHAPTER,
PROVIDED  HOWEVER, THAT FOR PURPOSES OF THIS SUBDIVISION, "PUBLIC PLACE"
SHALL ALSO INCLUDE THE INTERIOR OF A MOTOR VEHICLE.   AS  USED  IN  THIS
SUBDIVISION,  "ON  HIS  OR  HER PERSON" SHALL HAVE ITS ORDINARY MEANING,
PROVIDED, HOWEVER, THAT FOR PURPOSES OF THIS SUBDIVISION, A PERSON SHALL
ALSO BE DEEMED TO POSSESS A FIREARM "ON  HIS  OR  HER  PERSON"  WHERE  A
FIREARM  LICENSED TO SUCH PERSON IS FOUND IN A MOTOR VEHICLE AT THE SAME
TIME SUCH PERSON IS AN OCCUPANT OF SUCH VEHICLE.
  (B) THE LICENSE TO CARRY OR POSSESS A FIREARM OF  ANY  PERSON  WHO  IS
CHARGED  WITH  A  VIOLATION OF ANY OF THE PROVISIONS OF PARAGRAPH (A) OF
THIS SUBDIVISION OR WHO REFUSES TO SUBMIT TO A CHEMICAL TEST OF  HIS  OR
HER  BREATH,  BLOOD,  URINE OR SALIVA FOR THE PURPOSE OF DETERMINING THE
ALCOHOLIC AND/OR DRUG CONTENT OF  HIS  OR  HER  BLOOD  SHALL  BE  DEEMED
SUSPENDED,  WITH RESPECT TO THE FIREARM OR FIREARMS FORMING THE BASIS OF
SUCH CHARGE OR REFUSAL, PENDING A HEARING HELD PURSUANT TO THIS SUBDIVI-
SION  AND  SUCH  FIREARM  OR  FIREARMS,  TOGETHER  WITH  ANY  AMMUNITION
POSSESSED THEREWITH, SHALL BE CONFISCATED AND HELD BY THE POLICE PENDING
SUCH HEARING.
  (C)  (I)  ANY PERSON WHO HOLDS A LICENSE TO CARRY OR POSSESS A FIREARM
IN THIS STATE SHALL BE DEEMED TO HAVE GIVEN HIS  OR  HER  CONSENT  TO  A
CHEMICAL  TEST  OF  HIS  OR  HER  BREATH, BLOOD, URINE OR SALIVA FOR THE
PURPOSE OF DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT OF HIS  OR  HER
BLOOD;  PROVIDED,  THAT SUCH TEST IS ADMINISTERED BY OR AT THE DIRECTION
OF A POLICE OFFICER 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  OFFICER  HAVING  REASONABLE  GROUNDS  TO  BELIEVE SUCH PERSON
POSSESSES A FIREARM IN VIOLATION OF THIS SUBDIVISION.
  (II) IF SUCH LICENSEE, HAVING BEEN REQUESTED TO SUBMIT TO SUCH  CHEMI-
CAL  TEST  AND  HAVING BEEN INFORMED THAT HIS OR HER LICENSE TO CARRY OR
POSSESS A FIREARM SHALL BE SUSPENDED FOR A REFUSAL  TO  SUBMIT  TO  SUCH
CHEMICAL  TEST,  REFUSES  TO SUBMIT TO SUCH TEST OR IS ADMINISTERED SUCH
TEST, A WRITTEN REPORT OF SUCH REFUSAL OR TEST  RESULT  SHALL  BE  IMME-
DIATELY  MADE BY THE POLICE OFFICER BEFORE WHOM SUCH REFUSAL OR TEST WAS
MADE. SUCH REPORT MAY BE VERIFIED BY HAVING  THE  REPORT  SWORN  TO,  OR
AFFIXING TO SUCH REPORT A FORM NOTICE THAT FALSE STATEMENTS 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.  THE  REPORT  OF
THE  POLICE OFFICER SHALL STATE THAT HE OR SHE HAD REASONABLE GROUNDS TO
BELIEVE SUCH LICENSEE TO HAVE BEEN IN VIOLATION OF THIS SUBDIVISION AND,
IF APPROPRIATE, THAT SAID PERSON HAD REFUSED TO SUBMIT TO SUCH  CHEMICAL
TEST.  COPIES OF SUCH REPORT SHALL BE FORWARDED BY THE POLICE OFFICER TO
THE LICENSING OFFICER WITHIN FORTY-EIGHT HOURS.
  (D) (I) ANY LICENSEE WHOSE LICENSE TO CARRY OR POSSESS A  FIREARM  HAS
BEEN  DEEMED  SUSPENDED  PURSUANT  TO  THE TERMS OF THIS SUBDIVISION, IS
ENTITLED TO A HEARING BY THE LICENSING OFFICER, NO LATER THAN SEVEN DAYS
AFTER THE DATE ON WHICH HE OR SHE ALLEGEDLY VIOLATED  THIS  SUBDIVISION.
SUCH  HEARING  SHALL  BE  CONDUCTED BY THE LICENSING OFFICER, OR IF SUCH

S. 704                              4

POSSESSION ALLEGEDLY OCCURRED IN THE CITY OF NEW  YORK,  BY  THE  POLICE
COMMISSIONER OF SUCH CITY. IF THE LICENSING OFFICER FAILS TO PROVIDE FOR
SUCH  HEARING  WITHIN  THE  TIME  PRESCRIBED HEREIN, THE LICENSE OF SUCH
PERSON  SHALL  BE REINSTATED PENDING A HEARING PURSUANT TO THIS SUBDIVI-
SION AND ANY  LAWFULLY  POSSESSED  FIREARM  AND  AMMUNITION  CONFISCATED
PURSUANT  TO  PARAGRAPH  (B)  OF  THIS  SUBDIVISION SHALL BE IMMEDIATELY
RETURNED TO THE LICENSEE.  THE BURDEN OF PROOF AT  A  HEARING  CONDUCTED
PURSUANT TO THIS SUBDIVISION SHALL BE ON THE POLICE OFFICER TO PROVE THE
ISSUES BY A PREPONDERANCE OF THE EVIDENCE.  THE HEARING SHALL BE LIMITED
TO  THE FOLLOWING ISSUES: (1) DID THE PERSON POSSESS A LOADED FIREARM ON
HIS OR HER PERSON IN A PUBLIC PLACE WHILE UNDER THE INFLUENCE OF ALCOHOL
OR DRUGS IN VIOLATION OF THIS SUBDIVISION AND  DID  THE  POLICE  OFFICER
HAVE  REASONABLE  GROUNDS FOR BELIEVING SUCH VIOLATION HAD OCCURRED; AND
(2) IF SUSPENSION IS BASED UPON A REFUSAL TO SUBMIT TO A CHEMICAL  TEST,
DID  THE POLICE OFFICER HAVE REASONABLE GROUNDS FOR BELIEVING THE LICEN-
SEE POSSESSED A FIREARM IN  VIOLATION  OF  THIS  SUBDIVISION,  WAS  SUCH
PERSON  GIVEN  SUFFICIENT  WARNING,  IN  CLEAR AND UNEQUIVOCAL LANGUAGE,
PRIOR TO SUCH REFUSAL THAT SUCH REFUSAL TO SUBMIT TO SUCH CHEMICAL  TEST
WOULD  RESULT  IN THE SUSPENSION OF HIS OR HER LICENSE WHETHER OR NOT HE
OR SHE IS FOUND GUILTY OF THE CHARGE  AND  DID  SUCH  PERSON  REFUSE  TO
SUBMIT  TO  SUCH  CHEMICAL TEST.   IF, AFTER SUCH HEARING, THE LICENSING
OFFICER FINDS ON BOTH OF SAID ISSUES IN THE NEGATIVE, HE  OR  SHE  SHALL
IMMEDIATELY  REINSTATE SUCH LICENSE SUBJECT TO ANY EXISTING RESTRICTION,
REVOCATION, OR SUSPENSION OF SUCH LICENSE  AND  ANY  LAWFULLY  POSSESSED
FIREARM  AND  AMMUNITION  CONFISCATED  PURSUANT TO PARAGRAPH (B) OF THIS
SUBDIVISION SHALL BE IMMEDIATELY RETURNED TO THE LICENSEE.    IF,  AFTER
SUCH  HEARING,  THE  LICENSING OFFICER FINDS EITHER OF THE ISSUES IN THE
AFFIRMATIVE, HE OR SHE SHALL  IMMEDIATELY  SUSPEND  THE  LICENSE.    THE
FIREARM LICENSE SHALL BE SUSPENDED FOR A PERIOD OF ONE YEAR. THE LICENS-
ING  OFFICER,  UPON SUSPENDING A LICENSE, SHALL INSTRUCT THE PERSON THAT
ALL OUTSTANDING FIREARMS HELD PURSUANT TO SUCH LICENSE, AND  ANY  AMEND-
MENTS THERETO, SHALL BE SURRENDERED TO THE DULY ENTITLED POLICE AUTHORI-
TIES  WITHIN  TWENTY-FOUR  HOURS  OF THE CONCLUSION OF SUCH HEARING. THE
LICENSING OFFICER SHALL INSTRUCT SUCH PERSON THAT  ALL  WEAPONS  SURREN-
DERED  PURSUANT  TO THIS PARAGRAPH AND PARAGRAPH (B) OF THIS SUBDIVISION
SHALL BE RETURNED TO SUCH PERSON UPON THE REINSTATEMENT OF SUCH LICENSE.
ANY PERSON MAY WAIVE HIS OR HER RIGHT TO A HEARING UNDER THIS PARAGRAPH.
FAILURE BY SUCH PERSON TO APPEAR FOR HIS OR HER SCHEDULED HEARING  SHALL
CONSTITUTE A WAIVER OF SUCH HEARING, PROVIDED, HOWEVER, THAT SUCH PERSON
MAY  PETITION THE LICENSING OFFICER FOR A NEW HEARING WHICH, IF GRANTED,
SHALL BE HELD AS SOON AS PRACTICABLE.
  (II) EVIDENCE OF A REFUSAL TO SUBMIT TO SUCH CHEMICAL  TEST  SHALL  BE
ADMISSIBLE IN ANY HEARING HELD PURSUANT TO THE PROVISIONS OF THIS SUBDI-
VISION  BUT ONLY UPON SHOWING THAT THE PERSON WAS GIVEN SUFFICIENT WARN-
ING, IN CLEAR AND UNEQUIVOCAL LANGUAGE, OF THE EFFECT OF SUCH REFUSAL.
  (III) UPON THE REQUEST OF THE PERSON WHO WAS TESTED,  THE  RESULTS  OF
SUCH TEST SHALL BE MADE AVAILABLE TO HIM OR HER.
  (IV)  THE  CHEMICAL TEST PROVIDED FOR IN SUBPARAGRAPH (I) OF PARAGRAPH
(C) OF THIS SUBDIVISION  SHALL  BE  CONDUCTED  IN  THE  SAME  MANNER  AS
PROVIDED  IN  SUBDIVISION  FOUR OF SECTION ELEVEN HUNDRED NINETY-FOUR OF
THE VEHICLE AND TRAFFIC LAW.
  (V) ANY PERSON WHOSE LICENSE IS SUSPENDED  FOR  A  VIOLATION  OF  THIS
SUBDIVISION  SHALL,  AS  A  CONDITION FOR REINSTATEMENT OF SUCH LICENSE,
SUCCESSFULLY  COMPLETE  THE  ALCOHOL  AND  DRUG  REHABILITATION  PROGRAM
PROVIDED  FOR  IN  SECTION EIGHT HUNDRED THIRTY-SEVEN-S OF THE EXECUTIVE
LAW. THE LICENSING OFFICER SHALL NOT REINSTATE SUCH  LICENSE  UNTIL  THE

S. 704                              5

COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES CERTIFIES SUCH
PERSON  HAS  SUCCESSFULLY  COMPLETED THE ALCOHOL AND DRUG REHABILITATION
PROGRAM.
  (VI)  DURING  THE  PERIOD OF SUSPENSION PROVIDED FOR IN THIS PARAGRAPH
SUCH PERSON SHALL NOT BE PERMITTED TO  APPLY  FOR  ANY  LICENSE,  OR  AN
AMENDMENT TO AN EXISTING LICENSE, PROVIDED FOR IN THIS SECTION.
  (E)  THE  LICENSING  OFFICER  SUSPENDING  A LICENSE SHALL GIVE WRITTEN
NOTICE THEREOF, WITHOUT UNNECESSARY DELAY, TO THE EXECUTIVE  DEPARTMENT,
DIVISION  OF STATE POLICE, ALBANY, AND SHALL ALSO NOTIFY IMMEDIATELY THE
DULY CONSTITUTED POLICE AUTHORITIES OF THE LOCALITY.
  (F) IN ANY HEARING PURSUANT TO THIS SUBDIVISION, THE LICENSING OFFICER
SHALL ADMIT EVIDENCE OF THE AMOUNT OF ALCOHOL OR DRUGS IN  THE  PERSON'S
BLOOD AS SHOWN BY A TEST ADMINISTERED PURSUANT TO THE PROVISIONS OF THIS
SUBDIVISION.
   THE  FOLLOWING  EFFECT  SHALL  BE  GIVEN TO EVIDENCE OF BLOOD-ALCOHOL
CONTENT, AS DETERMINED BY  SUCH  TESTS,  OF  A  PERSON  CHARGED  WITH  A
VIOLATION OF THIS SUBDIVISION:
  (I)  EVIDENCE THAT THERE WAS LESS THAN .10 OF ONE PER CENTUM BY WEIGHT
OF ALCOHOL IN SUCH PERSON'S BLOOD SHALL BE  PRIMA  FACIE  EVIDENCE  THAT
SUCH PERSON WAS NOT UNDER THE INFLUENCE OF ALCOHOL;
  (II)  EVIDENCE  THAT THERE WAS .10 OF ONE PER CENTUM OR MORE BY WEIGHT
OF ALCOHOL IN SUCH PERSON'S BLOOD SHALL BE  PRIMA  FACIE  EVIDENCE  THAT
SUCH PERSON WAS UNDER THE INFLUENCE OF ALCOHOL.
  (G)  EXCEPT  AS  HEREIN  SPECIFICALLY  PROVIDED, THE HEARING CONDUCTED
PURSUANT TO THIS SUBDIVISION SHALL  BE  DEEMED  TO  BE  AN  ADJUDICATORY
PROCEEDING  SUBJECT  TO  THE  PROVISIONS  OF  ARTICLE THREE OF THE STATE
ADMINISTRATIVE PROCEDURE ACT.
  (H) ANY PERSON AGGRIEVED BY A DECISION AFTER THE HEARING PROVIDED  FOR
IN  THIS SUBDIVISION MAY APPEAL SUCH DECISION PURSUANT TO THE PROVISIONS
OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  (I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  NO
PERSON  SHALL BE ARRESTED SOLELY FOR AN ALLEGED VIOLATION OF THIS SUBDI-
VISION. HOWEVER, A PERSON FOR WHOM A CHEMICAL TEST IS AUTHORIZED  PURSU-
ANT TO THIS SUBDIVISION MAY BE TEMPORARILY DETAINED BY THE POLICE SOLELY
FOR  THE PURPOSE OF REQUESTING OR ADMINISTERING SUCH CHEMICAL TEST WHEN-
EVER ARREST WITHOUT WARRANT FOR A PETTY OFFENSE WOULD BE  AUTHORIZED  IN
ACCORDANCE  WITH THE PROVISIONS OF SECTION 140.10 OF THE CRIMINAL PROCE-
DURE LAW.
  (J) NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE DEEMED  TO  IN  ANY
WAY  REDUCE  OR  LIMIT  THE EXISTING AUTHORITY OF A LICENSING OFFICER TO
REVOKE OR SUSPEND A LICENSE ISSUED PURSUANT  TO  THIS  SECTION.  NOTHING
CONTAINED IN THIS SUBDIVISION SHALL BE DEEMED TO LIMIT, REDUCE OR IN ANY
WAY EFFECT THE CRIMINAL LIABILITY OF A LICENSEE FOR ANY FIREARM OR OTHER
OFFENSE DEFINED IN THIS CHAPTER OR ANY OTHER PROVISION OF LAW.
  S  5.  Subdivision 15 of section 400.00 of the penal law is amended to
read as follows:
  15. Any violation by any person of  any  provision  of  this  section,
OTHER  THAN A VIOLATION OF PARAGRAPH (A) OF SUBDIVISION ELEVEN-A OF THIS
SECTION, is a class A misdemeanor.
  S 6. The executive law is amended by adding a  new  section  837-s  to
read as follows:
  S  837-S.  ALCOHOL  AND DRUG REHABILITATION PROGRAM. 1. PROGRAM ESTAB-
LISHMENT. THERE IS HEREBY ESTABLISHED AN ALCOHOL AND DRUG REHABILITATION
PROGRAM WITHIN THE DIVISION.  THE COMMISSIONER SHALL ESTABLISH, BY REGU-
LATION, THE INSTRUCTIONAL AND REHABILITATIVE  ASPECTS  OF  THE  PROGRAM.
SUCH  PROGRAM SHALL CONSIST OF AT LEAST FIFTEEN AND NOT MORE THAN THIRTY

S. 704                              6

HOURS AND INCLUDE, BUT NEED NOT BE LIMITED TO, CLASSROOM INSTRUCTION  IN
AREAS DEEMED SUITABLE BY THE COMMISSIONER.
  2.  CURRICULUM.  THE  FORM,  CONTENT AND METHOD OF PRESENTATION OF THE
VARIOUS ASPECTS OF SUCH PROGRAM SHALL BE ESTABLISHED BY THE  COMMISSION-
ER.  IN  THE  DEVELOPMENT  OF  THE  FORM, CURRICULUM AND CONTENT OF SUCH
PROGRAM, THE COMMISSIONER MAY CONSULT WITH THE  COMMISSIONER  OF  MENTAL
HEALTH, THE COMMISSIONER OF THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES  AND  ANY  OTHER  STATE  DEPARTMENT  OR  AGENCY AND REQUEST AND
RECEIVE ASSISTANCE FROM THEM. THE COMMISSIONER  IS  ALSO  AUTHORIZED  TO
DEVELOP  MORE THAN ONE CURRICULUM AND COURSE CONTENT FOR SUCH PROGRAM IN
ORDER TO MEET THE VARYING REHABILITATIVE NEEDS OF THE PARTICIPANTS.
  3. WHERE AVAILABLE. A COURSE IN SUCH PROGRAM SHALL BE AVAILABLE IN  AT
LEAST  EVERY  COUNTY  IN THE STATE, EXCEPT WHERE THE COMMISSIONER DETER-
MINES THAT THERE IS NOT A SUFFICIENT NUMBER OF ALCOHOL  OR  DRUG-RELATED
OFFENSES  IN  A  COUNTY TO MANDATE THE ESTABLISHMENT OF SAID COURSE, AND
THAT PROVISIONS BE MADE FOR THE RESIDENTS OF SAID  COUNTY  TO  ATTEND  A
COURSE IN ANOTHER COUNTY WHERE A COURSE EXISTS.
  4. ELIGIBILITY. PARTICIPATION IN THE PROGRAM SHALL BE LIMITED TO THOSE
PERSONS  HAVING  VIOLATED  THE  PROVISIONS  OF  SUBDIVISION  ELEVEN-A OF
SECTION 400.00 OF THE PENAL LAW.
  5. EFFECT OF COMPLETION.  UPON SUCCESSFUL COMPLETION OF  A  COURSE  IN
SUCH  PROGRAM AS CERTIFIED BY ITS ADMINISTRATOR, THE COMMISSIONER SHALL,
ON A FORM PROVIDED FOR SUCH PURPOSE, NOTIFY  THE  APPROPRIATE  LICENSING
OFFICER  HAVING  ISSUED  THE  ORDER  OF  SUSPENSION  OF  SUCH LICENSEE'S
SUCCESSFUL COMPLETION OF THE COURSE PROVIDED FOR IN THIS SECTION.
  6. FEES. THE COMMISSIONER SHALL ESTABLISH A SCHEDULE  OF  FEES  TO  BE
PAID  BY  OR ON BEHALF OF EACH PARTICIPANT IN THE PROGRAM, AND MAY, FROM
TIME TO TIME, MODIFY SAME.  SUCH FEES SHALL DEFRAY THE ONGOING  EXPENSES
OF  THE  PROGRAM,  PROVIDED, HOWEVER, THAT PURSUANT TO AN AGREEMENT WITH
THE DIVISION A MUNICIPALITY, DEPARTMENT THEREOF,  OR  OTHER  AGENCY  MAY
CONDUCT A COURSE IN SUCH PROGRAM WITH ALL OR PART OF THE EXPENSE OF SUCH
COURSE AND PROGRAM BEING BORNE BY SUCH MUNICIPALITY, DEPARTMENT OR AGEN-
CY.  IN NO EVENT SHALL SUCH FEE BE REFUNDABLE, EITHER FOR REASONS OF THE
PARTICIPANT'S WITHDRAWAL OR EXPULSION FROM SUCH PROGRAM OR OTHERWISE.
  S 7. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law; provided however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of the foregoing sections
of this act on their effective date is authorized  and  directed  to  be
made  and  completed  within  180  days after the date on which this act
becomes a law.

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