Senate Bill S4777

                                 BILL NUMBER:  S4777

 TITLE OF BILL :
An act to amend the vehicle and traffic law, in relation to the
definitions of the terms "impaired" and "intoxication" for the
purposes of such law


 PURPOSE :
To codify accepted legal definitions and include alteration of
physical or mental abilities by known or unknown substances.

 SUMMARY OF PROVISIONS :

Section 119-b defines impaired in conformity with the language of the
New York State Court of Appeals ruling in People v. Cruz, 48 N.Y.2nd
419, (1979). Section l19-d defines intoxication in conformity with the
language of the New York State Court of Appeals ruling in People v.
Cruz, 48 N.Y.2nd 419, (1979) and expands such definition to encompass
situations described in the New York State Court of Appeals ruling in
People v. Litto, 8 N.Y.3rd 692, (2007).

 JUSTIFICATION : All too often, intoxicated drivers who are under the
influence of a substance that has not been placed upon the New York
Sate Public Health Law Schedule 3306 or a substance that cannot be
determined, escape prosecution. Clearly dangerous drivers can
              

frustrate the prosecution of their own acts by the simple
legislatively sanctioned expedient of refusing a chemical test of
their blood breath and urine. If the driver has no contraband and
makes no admissions, the intoxicating substance ingested will not be
known to law enforcement, a condition precedent to prosecution under
our current laws. Additionally, some clearly dangerous drivers who
ingest substances or combinations of substances not listed in the
Public Health Law may not be prosecuted under our current laws.

In January of 2004, after becoming intoxicated from ingesting an
aerosol spray can of "Dust-off', Vincent Litto veered into oncoming
traffic, killing 18-year-old Kristian Roggio Litto and injuring James
Sienna, and two others.

The defendant was indicted for the crimes of Manslaughter 2 degree,
Vehicular Manslaughter 2 degree, Criminally Negligent Homicide,
Reckless Endangerment 2 degree, Reckless Driving, Operating a Motor
Vehicle while in an Intoxicated Condition; Assault 2 degree (4
counts); Assault 3 degree (4 counts). In June of 2007, the Court of
Appeals of the State of New York affirmed the dismissal of Vehicular
Manslaughter 2 degree and Operating a Motor Vehicle while in an
Intoxicated Condition because Difluoroethane, the chemical propellant
in Dust-Off, is not among substances listed in Public Health Law 3306.

Chief Judge Judith Kaye wrote that she is mindful that, with the
Court's ruling, there may be circumstances where impaired drivers can
avoid punishment under the law. "If defendant did what the prosecution
charges, then his conduct was reprehensible -- his voluntary
inhalation of hydrocarbon while driving resulted in the death of a
young woman and serious injuries to others," the chief judge wrote.
"Perhaps gaps exist in the law and the prosecution should not have to
rely on the 12 other counts charged. However, a determination by this
Court that intoxication in Vehicle and Traffic Law section 1192(3)
includes the use of any substance would improperly override the
legislative policy judgment."

There are numerous instances where individuals are arrested because
they were driving while they were dramatically intoxicated by a drug,
to the point of falling down and becoming unconscious but because

under the facts of each individual case, the substance was not
identified.

In response to this problem a number of states have enacted
legislation that allow for the prosecution of a driver who has
ingested intoxicating substances.

 LEGISLATIVE HISTORY :
2008 Passed the Senate

 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 a law.