S T A T E O F N E W Y O R K
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4235
2009-2010 Regular Sessions
I N A S S E M B L Y
February 2, 2009
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Introduced by M. of A. ORTIZ, HOOPER, MAYERSOHN, SEMINERIO, COLTON --
read once and referred to the Committee on Transportation
AN ACT to amend the vehicle and traffic law, in relation to reducing the
blood alcohol level threshold for determination of intoxication and
repealing provisions of such law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 1192 of the vehicle and traffic
law, as amended by chapter 3 of the laws of 2002, is amended to read as
follows:
2. Driving while intoxicated; per se. No person shall operate a motor
vehicle while such person has [.08] .06 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 the
provisions of section eleven hundred ninety-four of this article.
S 2. Subdivision 6 of section 1192 of the vehicle and traffic law is
REPEALED.
S 3. Section 1192-a of the vehicle and traffic law, as added by chap-
ter 196 of the laws of 1996, is amended to read as follows:
S 1192-a. Operating a motor vehicle after having consumed alcohol;
under the age of twenty-one; per se. No person under the age of twenty-
one shall operate a motor vehicle after having consumed alcohol as
defined in this section. For purposes of this section, a person under
the age of twenty-one is deemed to have consumed alcohol only if such
person has .02 of one per centum or more but not more than [.07] .06 of
one per centum 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 the provisions of section eleven hundred ninety-four of this
article. Any person who operates a motor vehicle in violation of this
section, and who is not charged with a violation of any subdivision of
section eleven hundred ninety-two of this article arising out of the
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07802-02-9
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same incident shall be referred to the department for action in accord-
ance with the provisions of section eleven hundred ninety-four-a of this
article. Except as otherwise provided in subdivision five of section
eleven hundred ninety-two of this article, this section shall not apply
to a person who operates a commercial motor vehicle. Notwithstanding any
provision of law to the contrary, a finding that a person under the age
of twenty-one operated a motor vehicle after having consumed alcohol in
violation of this section is not a judgment of conviction for a crime or
any other offense.
S 4. Subparagraph 7 of paragraph (e) of subdivision 2 of section 1193
of the vehicle and traffic law, as added by chapter 312 of the laws of
1994, clauses a and a-1 as amended by chapter 732 of the laws of 2006,
clause b as separately amended by chapters 3 and 571 of the laws of 2002
and clauses d and e as amended by chapter 251 of the laws of 2007, is
amended to read as follows:
(7) Suspension pending prosecution; excessive blood alcohol content.
a. Except as provided in clause a-1 of this subparagraph, a court shall
suspend a driver's license, pending prosecution, of any person charged
with a violation of subdivision two, two-a, three or four-a of section
eleven hundred ninety-two of this article who, at the time of arrest, is
alleged to have had [.08] .06 of one percent or more by weight of alco-
hol in such driver's blood as shown by chemical analysis of blood,
breath, urine or saliva, made pursuant to subdivision two or three of
section eleven hundred ninety-four of this article.
a-1. A court shall suspend a class DJ or MJ learner's permit or a
class DJ or MJ driver's license, pending prosecution, of any person who
has been charged with a violation of subdivision one, two, two-a and/or
three of section eleven hundred ninety-two of this article.
b. The suspension occurring under clause a of this subparagraph shall
occur no later than at the conclusion of all proceedings required for
the arraignment and the suspension occurring under clause a-1 of this
subparagraph shall occur immediately after the holder's first appearance
before the court on the charge which shall, whenever possible, be the
next regularly scheduled session of the court after the arrest or at the
conclusion of all proceedings required for the arraignment; provided,
however, that if the results of any test administered pursuant to
section eleven hundred ninety-four of this article are not available
within such time period, the complainant police officer or other public
servant shall transmit such results to the court at the time they become
available, and the court shall, as soon as practicable following the
receipt of such results and in compliance with the requirements of this
subparagraph, suspend such license. In order for the court to impose
such suspension it must find that the accusatory instrument conforms to
the requirements of section 100.40 of the criminal procedure law and
there exists reasonable cause to believe either that (a) the holder
operated a motor vehicle while such holder had [.08] .06 of one percent
or more by weight of alcohol in his or her blood as was shown by chemi-
cal analysis of such person's blood, breath, urine or saliva, made
pursuant to the provisions of section eleven hundred ninety-four of this
article or (b) the person was the holder of a class DJ or MJ learner's
permit or a class DJ or MJ driver's license and operated a motor vehicle
while such holder was in violation of subdivision one, two and/or three
of section eleven hundred ninety-two of this article. At the time of
such license suspension the holder shall be entitled to an opportunity
to make a statement regarding these two issues and to present evidence
tending to rebut the court's findings.
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c. Nothing contained in this subparagraph shall be construed to
prohibit or limit a court from imposing any other suspension pending
prosecution required or permitted by law.
d. Notwithstanding any contrary provision of this chapter, if any
suspension occurring under this subparagraph has been in effect for a
period of thirty days, the holder may be issued a conditional license,
in accordance with section eleven hundred ninety-six of this article,
provided the holder of such license is otherwise eligible to receive
such conditional license. A conditional license issued pursuant to this
subparagraph shall not be valid for the operation of a commercial motor
vehicle. The commissioner shall prescribe by regulation the procedures
for the issuance of such conditional license.
e. If the court finds that the suspension imposed pursuant to this
subparagraph will result in extreme hardship, the court must issue such
suspension, but may grant a hardship privilege, which shall be issued on
a form prescribed by the commissioner. For the purposes of this clause,
"extreme hardship" shall mean the inability to obtain alternative means
of travel to or from the licensee's employment, or to or from necessary
medical treatment for the licensee or a member of the licensee's house-
hold, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee's school, college or university if such travel is necessary for
the completion of the educational degree or certificate. The burden of
proving extreme hardship shall be on the licensee who may present mate-
rial and relevant evidence. A finding of extreme hardship may not be
based solely upon the testimony of the licensee. In no event shall
arraignment be adjourned or otherwise delayed more than three business
days solely for the purpose of allowing the licensee to present evidence
of extreme hardship. The court shall set forth upon the record, or
otherwise set forth in writing, the factual basis for such finding. The
hardship privilege shall permit the operation of a vehicle only for
travel to or from the licensee's employment, or to or from necessary
medical treatment for the licensee or a member of the licensee's house-
hold, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee's school, college or university if such travel is necessary for
the completion of the educational degree or certificate. A hardship
privilege shall not be valid for the operation of a commercial motor
vehicle.
S 5. Paragraph (b) of subdivision 2 of section 1195 of the vehicle and
traffic law, as amended by chapter 153 of the laws of 2003, is amended
to read as follows:
(b) Evidence that there was more than .05 of one per centum but less
than [.07] .06 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 abili-
ty of such person to operate a motor vehicle was impaired by the
consumption of alcohol; and
S 6. Paragraph (c) of subdivision 2 of section 1195 of the vehicle and
traffic law is REPEALED.
S 7. This act shall take effect immediately; provided, however that
the amendment to subparagraph 7 of paragraph (e) of subdivision 2 of
section 1193 of the vehicle and traffic law made by section four of this
act shall not affect the repeal of such subparagraph and shall be deemed
repealed therewith.