S T A T E O F N E W Y O R K
________________________________________________________________________
2803
2009-2010 Regular Sessions
I N A S S E M B L Y
January 21, 2009
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Introduced by M. of A. KOLB, WALKER, McKEVITT, ERRIGO -- Multi-Sponsored
by -- M. of A. CORWIN, QUINN -- read once and referred to the Commit-
tee on Alcoholism and Drug Abuse
AN ACT to amend the general municipal law, in relation to reimbursement
of municipal cost and expense incurred by motor vehicle drivers under
the influence of alcohol and/or controlled substances
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general municipal law is amended by adding a new arti-
cle 17-A to read as follows:
ARTICLE 17-A
REIMBURSEMENT OF MUNICIPAL EXPENSE BY DRIVERS
OF MOTOR VEHICLES UNDER THE INFLUENCE OF
ALCOHOL AND/OR A CONTROLLED SUBSTANCE
SECTION 725. SHORT TITLE; PURPOSE OF ARTICLE.
726. DEFINITIONS.
727. LOCAL LAWS AND ORDINANCES.
728. STANDARD OF IMPAIRMENT; TESTING METHODS.
729. PRESUMPTION WITH RESPECT TO CAUSAL CONNECTION.
730. ADDITIONAL PRESUMPTION OF IMPAIRMENT.
731. DAMAGES.
732. ATTORNEY'S FEES, COURT COSTS AND EXPENSES; RECOVERY.
733. SEVERABILITY.
S 725. SHORT TITLE; PURPOSE OF ARTICLE. THIS ARTICLE SHALL BE KNOWN
AND MAY BE CITED AS THE "ALCOHOL AND CONTROLLED SUBSTANCE EXPENSE RECOV-
ERY ACT". THE LEGISLATURE HEREBY DECLARES THAT A HIGH PERCENTAGE OF
AUTOMOBILE ACCIDENTS ARE RELATED TO THE USE OF ALCOHOL AND CONTROLLED
SUBSTANCES AND, IN ADDITION TO THE TERRIBLE LOSSES SUFFERED BY THE FAMI-
LIES AND LOVED ONES OF INJURED PARTIES, THE COMMUNITY ITSELF SUFFERS
SERIOUS FINANCIAL BURDENS BY BEING OBLIGED TO RESPOND TO THE SCENES OF
SUCH ACCIDENTS. SINCE THERE WOULD APPEAR TO BE NO REASON WHY THOSE CAUS-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05050-01-9
A. 2803 2
ING OR CONTRIBUTING TO SUCH ACCIDENTS WHEN USING ALCOHOLIC BEVERAGES OR
CONTROLLED SUBSTANCES SHOULD NOT SUFFER THE ECONOMIC BURDEN CREATED BY
ANY SUCH ACCIDENT AND THE ADDITIONAL ECONOMIC BURDEN OF RECOVERING THE
COSTS AND EXPENSES INCIDENT THERETO, IT IS THE DETERMINATION OF THIS
LEGISLATURE THAT THE PASSAGE OF THIS ARTICLE IS REQUIRED IN ORDER TO
ALLOW THE MORE EQUITABLE DISTRIBUTION OF THE COST AND EXPENSE IMPOSED BY
SUCH ANTISOCIAL CONDUCT.
S 726. DEFINITIONS. THE FOLLOWING TERMS SHALL HAVE THE MEANINGS HERE-
INAFTER SET FORTH, RESPECTIVELY:
1. "CONTROLLED SUBSTANCES" SHALL MEAN AND INCLUDE ANY SUBSTANCE NAMED
OR DESCRIBED AS SUCH IN TITLE ONE OF ARTICLE THIRTY-THREE OF THE PUBLIC
HEALTH LAW.
2. "COSTS AND EXPENSES OF EMERGENCY RESPONSES" SHALL MEAN AND INCLUDE,
BUT NOT BE LIMITED TO, ALL COSTS OF LABOR, MEDICAL MATERIALS, MEDICAL
EQUIPMENT, POLICE EQUIPMENT, FIRE EQUIPMENT, AND ADMINISTRATIVE EXPENSES
ASSOCIATED THEREWITH, WHICH SHALL BE EXPENDED, USED, ASSOCIATED WITH,
OCCASIONED BY OR CONNECTED WITH ANY EMERGENCY MEDICAL, FIRE OR POLICE
RESPONSE AND, FOR THE PURPOSES HEREOF, THE COSTS OF EMERGENCY MEDICAL,
FIRE AND POLICE MANPOWER SERVICES SHALL BE AS SET FORTH ON SUCH SCHED-
ULES AS A MUNICIPALITY MAY ADOPT, FROM TIME TO TIME, BY RESOLUTION
PURSUANT TO THIS ARTICLE.
S 727. LOCAL LAWS AND ORDINANCES. NOTWITHSTANDING ANY OTHER PROVISION
OF LAW TO THE CONTRARY AND SUBJECT TO THE PROVISIONS OF THIS ARTICLE,
ANY CITY, COUNTY, TOWN OR VILLAGE IN THIS STATE, ACTING THROUGH ITS
LOCAL LEGISLATIVE BODY, IS HEREBY AUTHORIZED AND EMPOWERED TO ADOPT AND
AMEND EITHER A LOCAL LAW OR AN ORDINANCE PROVIDING FOR THE RECOVERY BY
SUCH MUNICIPALITY OF ANY COST OR EXPENSE INCURRED OR EXPENDED BY IT AS
THE RESULT OF THE OPERATION OF A MOTOR VEHICLE WITHIN SUCH MUNICIPALITY
BY AN INDIVIDUAL WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR
CONTROLLED SUBSTANCES OR A COMBINATION OF ALCOHOLIC BEVERAGES AND
CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES ARE
IMPAIRED OR TO THE EXTENT THAT HE OR SHE IS DEPRIVED OF FULL POSSESSION
OF HIS OR HER NORMAL FACULTIES AND, IF SUCH PERSON SHALL PROXIMATELY
CAUSE AN ACCIDENT OR IS A SUBSTANTIAL CAUSATIVE FACTOR OF AN ACCIDENT
RESULTING IN THE NEED FOR SUCH MUNICIPALITY TO PROVIDE EMERGENCY
MEDICAL, FIRE OR POLICE RESPONSES OR SERVICES, SUCH PERSON SHALL BE
LIABLE TO SUCH MUNICIPALITY FOR ALL COSTS AND EXPENSES OF SUCH EMERGENCY
RESPONSES AND SERVICES.
S 728. STANDARD OF IMPAIRMENT; TESTING METHODS. 1. IN ANY TRIAL OF
ANY CIVIL ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT OF ANY
LOCAL LAW OR ORDINANCE PASSED PURSUANT HERETO ALLEGING THAT ANY PERSON
IS LIABLE TO SUCH MUNICIPALITY BECAUSE SUCH PERSON WAS THE CAUSE OF OR
WAS A SUBSTANTIAL CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING EMERGENCY
MEDICAL, FIRE OR POLICE RESPONSES WHILE SUCH PERSON WAS DRIVING OR IN
ACTUAL PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE OF ALCO-
HOLIC BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC
BEVERAGES AND CONTROLLED SUBSTANCES, TO THE EXTENT THAT HIS OR HER
NORMAL FACULTIES WERE IMPAIRED, OR TO THE EXTENT THAT HE OR SHE WAS
DEPRIVED OF FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, THE RESULTS
OF ANY TEST ADMINISTERED IN ACCORDANCE WITH ARTICLE THIRTY-ONE OF THE
VEHICLE AND TRAFFIC LAW SHALL BE ADMISSIBLE INTO EVIDENCE WHEN OTHERWISE
ADMISSIBLE, AND THE AMOUNT OF ALCOHOL OR CONTROLLED SUBSTANCE IN THE
PERSON'S BLOOD AT THE TIME ALLEGED, AS SHOWN BY CHEMICAL ANALYSIS OF THE
PERSON'S BLOOD OR BREATH OR URINE, SHALL GIVE RISE TO THE FOLLOWING
PRESUMPTIONS:
A. 2803 3
A. IF THERE WAS, AT THE TIME, 0.05 PERCENT OR LESS BY WEIGHT OF ALCO-
HOL IN THE PERSON'S BLOOD, AND IF THERE WAS NO EVIDENCE OF A CONTROLLED
SUBSTANCE IN SUCH PERSON'S BLOOD, IT SHALL BE PRESUMED THAT THE PERSON
WAS NOT UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR CONTROLLED
SUBSTANCES OR ANY COMBINATION THEREOF TO THE EXTENT THAT HIS OR HER
NORMAL FACULTIES WERE IMPAIRED.
B. IF THERE WAS, AT THE TIME, IN EXCESS OF 0.05 PERCENT BUT LESS THAN
0.08 PERCENT BY WEIGHT OF ALCOHOL IN THE PERSON'S BLOOD SUCH FACTS SHALL
NOT GIVE RISE TO ANY PRESUMPTION THAT THE PERSON WAS OR WAS NOT UNDER
THE INFLUENCE OF ALCOHOLIC BEVERAGES OR CONTROLLED SUBSTANCES OR A
COMBINATION THEREOF TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES WERE
IMPAIRED, BUT SUCH FACT MAY BE CONSIDERED WITH OTHER COMPETENT EVIDENCE
IN DETERMINING WHETHER THE PERSON WAS UNDER THE INFLUENCE OF ALCOHOLIC
BEVERAGES OR CONTROLLED SUBSTANCES OR ANY COMBINATION THEREOF TO THE
EXTENT THAT HIS OR HER NORMAL FACULTIES WERE IMPAIRED.
C. IF THERE WAS, AT THE TIME, 0.08 PERCENT OR MORE BY WEIGHT OF ALCO-
HOL IN THE PERSON'S BLOOD, EVEN IF THERE WAS NO EVIDENCE OF A CONTROLLED
SUBSTANCE IN SUCH PERSON'S BLOOD, SUCH FACT SHALL BE PRIMA FACIE
EVIDENCE THAT THE PERSON WAS UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES
TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES WERE IMPAIRED.
D. IF THERE WAS, AT THE TIME, IN EXCESS OF 0.05 PERCENT BY WEIGHT OF
ALCOHOL IN THE PERSON'S BLOOD AND EVIDENCE OF A CONTROLLED SUBSTANCE IN
THE PERSON'S BLOOD, SUCH FACTS SHALL BE PRIMA FACIE EVIDENCE THAT THE
PERSON WAS UNDER THE INFLUENCE OF A COMBINATION OF ALCOHOLIC BEVERAGES
AND CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES
WERE IMPAIRED.
2. THE PERCENT BY WEIGHT OF ALCOHOL IN THE BLOOD SHALL BE BASED UPON
GRAMS OF ALCOHOL PER 100 MILLILITERS OF BLOOD.
3. THE FOREGOING PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED AS
LIMITING THE INTRODUCTION OF OTHER COMPETENT EVIDENCE BEARING UPON THE
QUESTION OF WHETHER THE PERSON WAS UNDER THE INFLUENCE OF ALCOHOLIC
BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC BEVER-
AGES AND CONTROLLED SUBSTANCES, EITHER TO THE EXTENT THAT HIS OR HER
NORMAL FACULTIES WERE IMPAIRED OR TO THE EXTENT THAT HE OR SHE WAS
DEPRIVED OF FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, OR THAT SUCH
IMPAIRMENT WAS THE PROXIMATE CAUSE OR SUBSTANTIALLY CAUSATIVE OF THE
ACCIDENT GIVING RISE TO THE NEED FOR EMERGENCY MEDICAL, POLICE OR FIRE
SERVICES.
4. A CHEMICAL ANALYSIS OF A PERSON'S BLOOD TO DETERMINE ALCOHOLIC
CONTENT, A CHEMICAL ANALYSIS OF A PERSON'S BREATH OR A CHEMICAL ANALYSIS
OF A PERSON'S URINE, IN ORDER TO BE CONSIDERED VALID UNDER THE
PROVISIONS OF THIS SECTION, MUST HAVE BEEN PERFORMED SUBSTANTIALLY IN
ACCORDANCE WITH THE METHOD SET FORTH IN ARTICLE THIRTY-ONE OF THE VEHI-
CLE AND TRAFFIC LAW. ANY INSUBSTANTIAL DIFFERENCES BETWEEN APPROVED
TECHNIQUES AND ACTUAL TESTING PROCEDURES IN ANY INDIVIDUAL CASE SHALL
NOT RENDER THE TEST OR TEST RESULTS INVALID. ANY TECHNIQUE OR METHOD
APPROVED BY THE DEPARTMENT OF HEALTH WITH RESPECT TO SUCH ANALYSIS SHALL
BE DEEMED ACCEPTABLE. ANY PERSON WHO SHALL BE DEEMED QUALIFIED AND
COMPETENT TO CONDUCT SUCH ANALYSIS BY THE DEPARTMENT OF HEALTH SHALL BE
DEEMED COMPETENT TO CONDUCT SUCH ANALYSIS.
S 729. PRESUMPTION WITH RESPECT TO CAUSAL CONNECTION. IN ANY TRIAL OF
ANY CIVIL ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT HEREOF
ALLEGING THAT ANY PERSON IS LIABLE HEREUNDER BECAUSE SUCH PERSON WAS THE
CAUSE OF OR WAS A SUBSTANTIAL CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING
EMERGENCY MEDICAL, FIRE OR POLICE RESPONSES WHILE SUCH PERSON WAS DRIV-
ING OR IN ACTUAL PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE
A. 2803 4
OF ALCOHOLIC BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF
ALCOHOLIC BEVERAGES AND CONTROLLED SUBSTANCES, TO THE EXTENT THAT HIS OR
HER NORMAL FACULTIES WERE IMPAIRED OR THAT HE OR SHE WAS DEPRIVED OF
FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, IT SHALL BE PRESUMED
THAT A PERSON UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES AND/OR
CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES
WERE IMPAIRED, OR TO THE EXTENT THAT HE OR SHE WAS DEPRIVED OF FULL
POSSESSION OF HIS OR HER NORMAL FACULTIES, WAS THE PROXIMATE CAUSE OR
WAS A SUBSTANTIAL CAUSATIVE FACTOR OF THE ACCIDENT GIVING RISE TO THE
NEED FOR EMERGENCY MEDICAL, POLICE AND FIRE SERVICES.
S 730. ADDITIONAL PRESUMPTION OF IMPAIRMENT. IN ANY TRIAL OF ANY CIVIL
ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT OF ANY LOCAL LAW OR
ORDINANCE PASSED PURSUANT HERETO ALLEGING THAT ANY PERSON IS LIABLE TO
SUCH MUNICIPALITY BECAUSE SUCH PERSON WAS THE CAUSE OF OR WAS A SUBSTAN-
TIAL CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING EMERGENCY MEDICAL, FIRE
OR POLICE RESPONSES WHILE SUCH PERSON WAS DRIVING OR IN ACTUAL PHYSICAL
CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR
CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC BEVERAGES AND
CONTROLLED SUBSTANCES, TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES
WERE IMPAIRED OR THAT HE OR SHE WAS DEPRIVED OF FULL POSSESSION OF HIS
OR HER NORMAL FACULTIES, IT SHALL BE PRESUMED THAT SUCH PERSON'S NORMAL
FACULTIES WERE IMPAIRED OR THAT SUCH PERSON WAS DEPRIVED OF FULL
POSSESSION OF HIS OR HER NORMAL FACULTIES IF SUCH PERSON SHALL PLEAD
GUILTY TO OR SHALL HAVE BEEN FOUND GUILTY AFTER TRIAL OF A VIOLATION OF
SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW OR IF
SUCH PERSON REFUSES AN OFFICER'S REQUEST TO SUBMIT TO ANY BREATH, BLOOD
OR URINE TEST PROVIDED IN SECTION ELEVEN HUNDRED NINETY-FOUR OF THE
VEHICLE AND TRAFFIC LAW AND SUCH OFFICER SHALL HAVE SUBMITTED A SWORN
STATEMENT THAT HE HAD REASONABLE CAUSE TO BELIEVE THE PERSON HAD BEEN
DRIVING OR HAD BEEN IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE WITHIN
SUCH MUNICIPALITY WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR
CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC BEVERAGES AND
CONTROLLED SUBSTANCES, AND THAT SUCH PERSON HAD REFUSED TO SUBMIT TO THE
TEST OR TESTS AFTER BEING REQUESTED TO DO SO BY THE OFFICER.
S 731. DAMAGES. EVERY MUNICIPALITY ADOPTING A LOCAL LAW OR ORDINANCE
PURSUANT TO THIS ARTICLE SHALL DEVELOP AND KEEP CURRENT A SCHEDULE OF
SUCH EMERGENCY COSTS AND EXPENSES LIKELY TO BE INCURRED OR EXPENDED AS A
RESULT OF SUCH AN ALCOHOL OR CONTROLLED SUBSTANCE RELATED ACCIDENT
SETTING FORTH THE COST AND VALUE OF TIME AND SERVICES, AS WELL AS MATE-
RIALS, PROVIDED IN EMERGENCY SITUATIONS AS CONTEMPLATED BY THIS ARTICLE.
S 732. ATTORNEY'S FEES, COURT COSTS AND EXPENSES; RECOVERY. IN ANY
TRIAL OR ANY CIVIL ACTION OR PROCEEDING ARISING IN THE ENFORCEMENT OF
ANY LOCAL LAW OR ORDINANCE PASSED PURSUANT HERETO, THE MUNICIPALITY
INVOLVED SHALL BE ENTITLED TO RECOVER ALL COURT COSTS, EXPENSES AND
ATTORNEY'S FEES INCURRED BY SUCH MUNICIPALITY IN SUCH DISPUTE AND SUCH
RIGHT SHALL INCLUDE ALL OF SUCH COSTS, EXPENSES AND ATTORNEY'S FEES
THROUGH ALL APPEALS OR OTHER ACTIONS.
S 733. SEVERABILITY. IF ANY SECTION, SUBDIVISION, PARAGRAPH, SENTENCE,
CLAUSE, PHRASE OR PORTION OF THIS ARTICLE IS FOR ANY REASON HELD INVALID
OR UNCONSTITUTIONAL BY ANY COURT OF COMPETENT JURISDICTION, SUCH PORTION
SHALL BE DEEMED A SEPARATE, DISTINCT AND INDEPENDENT PROVISION AND SUCH
HOLDING SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS
ARTICLE.
S 2. This act shall take effect immediately.