Senate Bill S963

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

                                   963

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 22, 2009
                               ___________

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

AN ACT to amend the penal law, in relation  to  creating  the  crime  of
  unlawful lending of a motor vehicle and to amend the vehicle and traf-
  fic law, in relation to impoundment of a motor vehicle

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

  Section 1. The penal law is amended by adding a new section 270.40  to
read as follows:
S 270.40 UNLAWFUL LENDING OF A MOTOR VEHICLE.
  A  PERSON  IS  GUILTY  OF UNLAWFUL LENDING OF A MOTOR VEHICLE WHEN, AS
OWNER OF A VEHICLE, HE OR SHE KNOWINGLY PERMITS OPERATION OF SUCH  VEHI-
CLE BY A PERSON KNOWN TO HAVE A REVOKED OR SUSPENDED LICENSE, WHERE SUCH
REVOCATION  OR  SUSPENSION RESULTED FROM A VIOLATION OF SUBDIVISION TWO,
TWO-A OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE  VEHICLE  AND
TRAFFIC LAW.
  UNLAWFUL LENDING OF A MOTOR VEHICLE IS A CLASS A MISDEMEANOR.
  S  2. Section 1193 of the vehicle and traffic law is amended by adding
a new subdivision 3 to read as follows:
  3. VEHICLE IMPOUNDMENT PENDING PROSECUTION. (A) A  COURT  SHALL  ORDER
THE  IMPOUNDMENT,  PENDING PROSECUTION, OF A MOTOR VEHICLE OPERATED BY A
PERSON CHARGED WITH A VIOLATION OF SUBDIVISION TWO, TWO-A  OR  THREE  OF
SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE, WHERE THE OPERATOR:
  (1)  HAS  BEEN  CONVICTED  OF A VIOLATION OF SUBDIVISION TWO, TWO-A OR
THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE TWO  OR  MORE
TIMES IN THE PRECEDING FIVE YEARS; OR
  (2) IS ALLEGED TO BE OPERATING SUCH VEHICLE WITHOUT A VALID LICENSE.
  (B) IN ORDER FOR THE COURT TO ORDER SUCH IMPOUNDMENT IT MUST FIND:
  (1)  THAT  THE  ACCUSATORY  INSTRUMENT CONFORMS TO THE REQUIREMENTS OF
SECTION 100.40 OF THE CRIMINAL PROCEDURE LAW;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06798-01-9

              

S. 963                              2

  (2) THAT THERE EXISTS REASONABLE CAUSE TO  BELIEVE  THAT  THE  ACCUSED
OPERATED  A  MOTOR  VEHICLE  WHILE SUCH HOLDER HAD .08 OF ONE PERCENT OR
MORE BY WEIGHT OF ALCOHOL IN HIS OR HER BLOOD AS WAS SHOWN  BY  CHEMICAL
ANALYSIS  OF  SUCH PERSON'S BLOOD, URINE OR SALIVA, MADE PURSUANT TO THE
PROVISIONS OF SECTION ELEVEN HUNDRED NINETY-FOUR OF THIS ARTICLE; AND
  (3)  THAT  THE ACCUSED HAS EITHER (I) BEEN CONVICTED OF A VIOLATION OF
SUBDIVISION TWO, TWO-A OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO  OF
THIS  ARTICLE TWO OR MORE TIMES IN THE PRECEDING FIVE YEARS OR (II) DOES
NOT HOLD A VALID LICENSE TO OPERATE A VEHICLE.
  (C) AT THE TIME OF SUCH VEHICLE IMPOUNDMENT,  THE  OPERATOR  SHALL  BE
ENTITLED  TO  AN  OPPORTUNITY  TO MAKE A STATEMENT REGARDING THE COURT'S
FINDINGS UNDER PARAGRAPH (B) OF THIS SUBDIVISION AND TO PRESENT EVIDENCE
TENDING TO REBUT THE COURT'S FINDINGS.
  (D) THE IMPOUNDMENT OCCURRING UNDER THIS SECTION SHALL BE  ORDERED  NO
LATER  THAN  AT  THE  CONCLUSION  OF  ALL  PROCEEDINGS  REQUIRED FOR THE
ARRAIGNMENT; PROVIDED HOWEVER, THAT IF THE RESULTS OF ANY TEST  ADMINIS-
TERED 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 SUBDIVISION, ORDER SUCH VEHICLE IMPOUNDED.
  (E) IMPOUNDMENT SHALL CONTINUE FOR THIRTY DAYS  OR  UNTIL  THE  PROSE-
CUTION  HAS  CONCLUDED,  WHICHEVER COMES FIRST, AND ALL COSTS RELATED TO
SUCH IMPOUNDMENT AND SUBSEQUENT STORAGE SHALL BE BORNE BY THE  OPERATOR;
PROVIDED,  HOWEVER, THAT THE COURT MAY ORDER THE VEHICLE RETURNED TO ITS
OWNER AT ANY TIME WHERE THE OWNER PETITIONS THE COURT TO ORDER THE VEHI-
CLE'S RELEASE, SO LONG AS:
  (1) THE PETITIONER IS NOT THE OPERATOR CHARGED  WITH  A  VIOLATION  OF
SUBDIVISION  TWO, TWO-A OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF
THIS ARTICLE,
  (2) THE PETITIONER IS NOT CHARGED WITH A VIOLATION OF  SECTION  270.40
OF THE PENAL LAW, AND
  (3)  ALL  COSTS  RELATED TO THE VEHICLE'S IMPOUNDMENT AND STORAGE HAVE
BEEN PAID.
  (F) IF ANY IMPOUNDMENT ORDERED UNDER  THIS  SUBDIVISION  HAS  BEEN  IN
EFFECT  FOR  A  PERIOD  OF THIRTY DAYS, THE COURT MUST ORDER THE VEHICLE
RETURNED TO ITS OWNER, PROVIDED  THAT  THE  OWNER  HAS  PAID  ALL  COSTS
RELATED TO THE IMPOUNDMENT AND SUBSEQUENT STORAGE OF THE VEHICLE.
  S 3. This act shall take effect on the first of November next succeed-
ing  the  date  on  which it shall have become a law, and shall apply to
offenses committed on or after such date.