BILL NUMBER:S949

TITLE OF BILL:
An act
to amend the vehicle and traffic law, in relation to increasing the
parameters of driving while ability impaired to include driving while
ability affected by drugs

PURPOSE:
This bill increases the parameters of driving while ability impaired to
include driving while ability is affected to any extent by the
utilization of a drug.

SUMMARY OF PROVISIONS:
Section 1 amends subdivision 1 of section 1192 of the vehicle and
traffic law, as added by chapter 47 of the laws of 1988, to include the
utilization of a drug under the category of driving while impaired.

JUSTIFICATION:
This bill would remedy a deficiency in the Vehicle and Traffic Law (VTL)
which constitutes a significant number of cases each year. Section 1192
of the VTL is entitled "Operating a Motor Vehicle While Under the
Influence of Alcohol or Drugs". Section 1192-2 of the VTL provides that
"no person shall operate a motor vehicle while such person has .10
of 1 percentum or more by weight
of alcohol in the persons blood ...". Section 1192-3 provides that
              

no person shall operate a motor vehicle while in an intoxicated
condition.

Both Sections 1192-2 and 1192-3 of the VTL are unclassified
misdemeanors. Routinely first time offenders, and in various other
circumstances other repeat offenders, are afforded the opportunity to
negotiate a plea downward to the non-criminal violation of section
1192-1 of the VTL.

Section 1192-4 of the VTL deals with the issue of operating a motor
vehicle while the person's ability to operate such a motor vehicle is
impaired by the use of a drug. This section, like § 1192-2 and § 1192-3,
is an unclassified misdemeanor. Similarly and routinely, a first time
offender and other repeat offenders in certain circumstances charged
with operating a motor vehicle while such person's ability is impaired
by drugs is offered a plea by the District Attorney's Office to the
non-criminal violation of § 1192-1 of the VTL.

Whenever the Court takes a plea of § 1192-1 the defendant must state
that he or she was driving while impaired by alcohol. This presents
three distinct problems.

First, usually those people who are pleading guilty in reduction from
1192-4 to § 1192-1 of the VTL have not consumed any alcohol but rather
have utilized some form of drug. When the Court inquires as to the
factual basis of the plea under § 1192-1, which only provides for
impairment by alcohol, the defendant must either completely fictionalize
their use of alcohol or simply state that he or she did not consume any
alcohol whatsoever.


Second, should the court even wish to ignore this fiction and allow the
defendant to enter a plea to § 1192-1 in a § 1192-4 case, the conviction
on the defendant's prior criminal history would reflect an alcohol
problem rather than a drug related problem. A law enforcement officer
viewing a defendant's prior history would not know that a defendant was
operating under the influence of a drug if the history showed a
conviction for alcohol.

Third, a defendant after taking a plea and having sentence imposed could
move to set aside his conviction to § 1192-1 as legally insufficient if
the original charge is § 1192-4.

By creating this new section the public will be best served so that
routine reductions which are inappropriately and customarily accepted by
the court will now have a basis in fact. Law Enforcement Officers will
now also know by looking at a prior criminal history if the defendant
has been known to utilize drugs rather than being misled by an alcohol
conviction under § 1192-1.

LEGISLATIVE HISTORY:
1999-00: S.2791 -- Passed Senate; A.6926 -- Transportation
2001-2002: S.96 Passed Senate; 2003-2004: S.801 -- Passed Senate;
2005-2006: S.665--Passed Senate; 2007-2008: S.617 -- Passed Senate;
2009-10: S.605 -- Transportation

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become law.