BILL NUMBER:S600A

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
N ew York State Court of Appeals ruling in People v. Cruz, 48 NY.2nd
419, (1979).

Section 120-a 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).

Adds a new subdivision 13 to section 1192 of the VTL providing an
affirmative defense for persons impaired by a substance a person
would not reasonably know to be an intoxicant.

              

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.

In addition, this bill adds an affirmative defense provision to
section 1192 of the VTL, which allows a defendant to prove that he or
she did not know nor reasonably should have known of the intoxicating
nature of the substance he or she consumed.

LEGISLATIVE HISTORY:
2009-10: Reported to Codes (S.4777/A.10917)
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.