senate Bill S5345

2013-2014 Legislative Session

Relates to saliva swabs and chemical tests in certain cases

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 05, 2013 referred to transportation
delivered to assembly
passed senate
Jun 04, 2013 advanced to third reading
Jun 03, 2013 2nd report cal.
May 30, 2013 1st report cal.834
May 16, 2013 referred to transportation

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S5345 - Bill Details

Current Committee:
Assembly Transportation
Law Section:
Vehicle and Traffic Law
Laws Affected:
Amd §1194, V & T L

S5345 - Bill Texts

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Relates to saliva swabs and chemical tests in certain cases.

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BILL NUMBER:S5345

TITLE OF BILL: An act to amend the vehicle and traffic law, in
relation to saliva swabs and chemical tests in certain cases

PURPOSE: OF THE BILL: To utilize recent developments in the detection
of drugs and other chemical substances to assist in holding impaired
drivers responsible for serious motor vehicle crashes resulting in the
death or serious physical injury of a third party or parties.

SUMMARY OF SPECIFIC PROVISIONS: Amends subdivisions 1 and 2 of § 1194
of the Vehicle and Traffic Law (VTL) to place the use of saliva swabs
for the detection of drugs on a par with roadside breath tests for
alcohol as an accepted field test and the basis for establishing
reasonable cause that a person was driving while under the influence
of drugs or combined drugs and alcohol. Amends subdivision 3 of VTL
1194 relating to compulsory chemical tests, to allow the following to
be permissible in establishing grounds for a court-ordered compulsory
chemical or blood test in cases where a person is involved in a crash
resulting in the death or serious physical injury of a third party:

(1) A saliva swab indicates the consumption of drugs; or

(2) A police officer trained and certified as a "Drug Recognition
Expert" or trained and certified under NHTSA's A-Ride program has
reason to believe that such person is under the influence of drugs or
the combined influence of drugs and alcohol.

JUSTIFICATION: Over the past several years, the number of persons
arrested and convicted for driving while impaired by drugs has
increased by about 15%, while the number of persons convicted of
driving while intoxicated or under the influence of alcohol has
dropped by approximately 20%. The upward trend of driving while under
the influence of drugs is explained by a couple of factors. First,
there are more and more people using more and more substances out
there, ranging from prescription drugs and pain killers to the
standard illegal drugs such as cocaine and heroin to synthetic drugs
and boutique chemicals (many of which are not included on the list of
"drugs", but should be. Second, more and more police officers
throughout the United States, and particularly in New York, are
receiving special training in drug recognition. This level of training
and certification, which includes a wide range of skills (including
the use of the horizontal gaze nystagmus test for detecting several of
the drug groupings)has long been an emphasis of the State's STOP-DWI
programs. With more and more training and certification, more and more
impaired drivers are being detected, arrested and prosecuted.

For decades, a test of saliva has long been one of the approved tests
that may be administered to a suspected impaired driver. Until
recently, shortcomings in the technology had rendered the saliva test
as something of a non-factor in the ongoing struggle to keep drunk and
impaired drivers off the road. However, improvements in the use of the
non-intrusive "saliva swab" have made preliminary detection of drug
use comparable .to the long-accepted "preliminary ('roadside') breath
test" -- which may be used to confirm reasonable suspicion based on
standard field sobriety tests. Often drivers exhibiting signs of
impairment during the field sobriety may test for no or low alcohol.


The saliva swab will provide police officers with an alternative,
non-intrusive method for confirming (or dismissing) whether the
grounds for failing the SFSTs related to impairment by drugs.

Together the use of advancements in the use of saliva as a useful
test, and the increased training of police officers in drug
recognition, has made it possible to apply the same type of resources
in the fight against drugged driving as in the fight against the drunk
driving. These minor amendments will help the law keep up with those
advancements.

PRIOR LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: This act shall take effect on November 1st.

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

                                  5345

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

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

AN ACT to amend the vehicle and traffic law, in relation to saliva swabs
  and chemical tests in certain cases

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

  Section 1. Subdivisions 1, 2 and 3 of section 1194 of the vehicle  and
traffic  law, as added by chapter 47 of the laws of 1988, paragraphs (a)
and (b) of subdivision 2 as amended by chapter 196 of the laws of  1996,
subparagraphs  1  and  2 of paragraph (d) of subdivision 2 as amended by
chapter 732 of the laws of 2006 and item (iii) of clause c  of  subpara-
graph  1  of  paragraph (d) of subdivision 2 as amended by section 37 of
part LL of chapter 56 of the laws  of  2010,  are  amended  to  read  as
follows:
  1.  Arrest  and  field  testing.  (a)  Arrest.    Notwithstanding  the
provisions of section 140.10 of the criminal  procedure  law,  a  police
officer  may, without a warrant, arrest a person, in case of a violation
of subdivision one of section eleven hundred ninety-two of this article,
if such violation is coupled with an accident or collision in which such
person is involved, which in fact has been committed, though not in  the
police  officer's  presence,  when  the  officer has reasonable cause to
believe that the violation was committed by such person.
  (b) Field testing. Every person operating a motor  vehicle  which  has
been involved in an accident or which is operated in violation of any of
the  provisions  of this chapter shall, at the request of a police offi-
cer, submit to a breath test AND/OR SALIVA SWAB to  be  administered  by
the police officer. If EITHER such test indicates that such operator has
consumed  alcohol OR IS UNDER THE INFLUENCE OF A DRUG OR DRUGS, OR BOTH,
the police officer may request such operator to  submit  to  a  chemical
test in the manner set forth in subdivision two of this section.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10975-01-3

S. 5345                             2

  2.  Chemical  tests.  (a)  When  authorized. Any person who operates a
motor vehicle in this state shall be deemed to have given consent  to  a
chemical  test of one or more of the following: breath, blood, urine, or
saliva, for the purpose of determining the alcoholic and/or drug content
of the blood provided that such test is administered by or at the direc-
tion  of  a  police  officer  with respect to a chemical test of breath,
urine or saliva or, with respect to a chemical test  of  blood,  at  the
direction of a police officer:
  (1)  having  reasonable  grounds  to  believe such person to have been
operating in violation of any  subdivision  of  section  eleven  hundred
ninety-two  of  this  article and within two hours after such person has
been placed under arrest for any such violation;  or  having  reasonable
grounds  to  believe  such person to have been operating in violation of
section eleven hundred ninety-two-a of this article and within two hours
after the stop of such person for any such violation,
  (2) within two hours after a breath test OR SALIVA SWAB,  as  provided
in  paragraph  (b)  of subdivision one of this section, indicates [that]
THE CONSUMPTION OF alcohol [has been consumed] OR DRUGS by  such  person
and  in  accordance  with  the  rules and regulations established by the
police force of which the officer is a member;
  (3) for the  purposes  of  this  paragraph,  "reasonable  grounds"  to
believe  that  a  person has been operating a motor vehicle after having
consumed alcohol in violation of section eleven hundred ninety-two-a  of
this  article  shall  be  determined  by viewing the totality of circum-
stances surrounding the incident which, when  taken  together,  indicate
that  the  operator  was  driving in violation of such subdivision. Such
circumstances may include any visible or behavioral indication of  alco-
hol  consumption  by  the  operator,  the existence of an open container
containing or having contained an alcoholic beverage in  or  around  the
vehicle  driven  by  the operator, or any other evidence surrounding the
circumstances of the incident which indicates that the operator has been
operating a motor vehicle after having consumed alcohol at the  time  of
the incident; or
  (4)  notwithstanding  any  other  provision of law to the contrary, no
person under the age of twenty-one shall  be  arrested  for  an  alleged
violation  of  section  eleven  hundred  ninety-two-a  of  this article.
However, a person under the age of twenty-one for whom a  chemical  test
is  authorized pursuant to this paragraph may be temporarily detained by
the police solely for the purpose of requesting  or  administering  such
chemical  test  whenever  arrest  without  a warrant for a petty offense
would be authorized in accordance with the provisions of section  140.10
of  the  criminal  procedure  law or paragraph (a) of subdivision one of
this section.
  (b) Report of refusal TO SUBMIT TO A CHEMICAL TEST.  (1) If: (A)  such
person having been placed under arrest; or (B) after a breath test indi-
cates the presence of alcohol in the person's system; or (C) with regard
to a person under the age of twenty-one, there are reasonable grounds to
believe that such person has been operating a motor vehicle after having
consumed  alcohol in violation of section eleven hundred ninety-two-a of
this article; and having thereafter been requested  to  submit  to  such
chemical  test  and  having  been  informed that the person's license or
permit to drive and any non-resident operating privilege shall be  imme-
diately  suspended and subsequently revoked, or, for operators under the
age of twenty-one for whom there are reasonable grounds to believe  that
such  operator  has been operating a motor vehicle after having consumed
alcohol in violation of section  eleven  hundred  ninety-two-a  of  this

S. 5345                             3

article, shall be revoked for refusal to submit to such chemical test or
any  portion  thereof,  whether or not the person is found guilty of the
charge for which such person is arrested or detained, refuses to  submit
to  such  chemical test or any portion thereof, unless a court order has
been granted pursuant to subdivision three of  this  section,  the  test
shall  not  be given and a written report of such refusal shall be imme-
diately made by the police officer before whom such  refusal  was  made.
Such  report may be verified by having the report sworn to, or by affix-
ing to such report a form notice that false statements made therein  are
punishable  as  a  class A misdemeanor pursuant to section 210.45 of the
penal law and such form notice together with  the  subscription  of  the
deponent shall constitute a verification of the report.
  (2)  The  report  of  the  police  officer  shall set forth reasonable
grounds to believe such arrested person or such  detained  person  under
the  age  of twenty-one had been driving in violation of any subdivision
of section eleven hundred ninety-two or eleven hundred  ninety-two-a  of
this  article,  that  said person had refused to submit to such chemical
test, and that  no  chemical  test  was  administered  pursuant  to  the
requirements  of  subdivision three of this section. The report shall be
presented to the court upon arraignment of an arrested person, provided,
however, in the case of a person under the age of twenty-one, for whom a
test was authorized pursuant to the provisions of  subparagraph  two  or
three  of paragraph (a) of this subdivision, and who has not been placed
under arrest for a violation of any of the provisions of section  eleven
hundred  ninety-two  of  this article, such report shall be forwarded to
the commissioner within forty-eight hours in a manner to  be  prescribed
by  the  commissioner,  and  all  subsequent  proceedings with regard to
refusal to submit to such chemical test by such person shall be  as  set
forth  in  subdivision  three of section eleven hundred ninety-four-a of
this article.
  (3) For persons placed under arrest for a violation of any subdivision
of section eleven hundred ninety-two of this  article,  the  license  or
permit to drive and any non-resident operating privilege shall, upon the
basis  of  such  written  report,  be temporarily suspended by the court
without notice pending the determination of a  hearing  as  provided  in
paragraph  (c) of this subdivision. Copies of such report must be trans-
mitted by the court to the commissioner and such transmittal may not  be
waived  even  with  the consent of all the parties. Such report shall be
forwarded to the commissioner within forty-eight hours of such  arraign-
ment.
  (4) The court or the police officer, in the case of a person under the
age  of  twenty-one alleged to be driving after having consumed alcohol,
shall provide such person with a scheduled hearing date, a waiver  form,
and  such other information as may be required by the commissioner. If a
hearing, as provided for in paragraph (c) of this subdivision, or subdi-
vision three of section eleven hundred ninety-four-a of this article, is
waived by such person, the commissioner  shall  immediately  revoke  the
license,  permit, or non-resident operating privilege, as of the date of
receipt of such waiver in accordance with the  provisions  of  paragraph
(d) of this subdivision.
  (c)  Hearings. Any person whose license or permit to drive or any non-
resident driving privilege has been suspended pursuant to paragraph  (b)
of  this subdivision is entitled to a hearing in accordance with a hear-
ing schedule to be promulgated by the commissioner.  If  the  department
fails  to  provide  for  such hearing fifteen days after the date of the
arraignment of the arrested person, the  license,  permit  to  drive  or

S. 5345                             4

non-resident  operating  privilege  of  such  person shall be reinstated
pending a hearing pursuant to this section. The hearing shall be limited
to the following issues: (1) did  the  police  officer  have  reasonable
grounds to believe that such person had been driving in violation of any
subdivision  of  section  eleven hundred ninety-two of this article; (2)
did the police officer make a lawful arrest of such person; (3) was such
person given sufficient warning, in clear or unequivocal language, prior
to such refusal that such refusal to submit to such chemical test or any
portion thereof, would result in the immediate suspension and subsequent
revocation of such person's license or operating  privilege  whether  or
not  such  person is found guilty of the charge for which the arrest was
made; and (4) did such person refuse to submit to such chemical test  or
any portion thereof. If, after such hearing, the hearing officer, acting
on  behalf  of  the commissioner, finds on any one of said issues in the
negative, the hearing officer shall immediately terminate any suspension
arising from such refusal. If, after such hearing, the hearing  officer,
acting  on  behalf  of  the  commissioner finds all of the issues in the
affirmative, such officer shall immediately revoke the license or permit
to drive or any non-resident operating privilege in accordance with  the
provisions  of paragraph (d) of this subdivision. A person who has had a
license or permit to drive or non-resident operating privilege suspended
or revoked pursuant to this subdivision may appeal the findings  of  the
hearing  officer in accordance with the provisions of article three-A of
this chapter. Any person may waive the right to  a  hearing  under  this
section.  Failure  by  such  person  to appear for the scheduled hearing
shall constitute a waiver of such hearing, provided, however, that  such
person  may  petition  the commissioner for a new hearing which shall be
held as soon as practicable.
  (d) Sanctions. (1) Revocations. a. Any license which has been  revoked
pursuant  to paragraph (c) of this subdivision shall not be restored for
at least one year after such revocation, nor thereafter, except  in  the
discretion  of  the  commissioner.  However,  no  such  license shall be
restored for at least eighteen months after such revocation, nor  there-
after  except  in  the discretion of the commissioner, in any case where
the person has had a prior revocation resulting from refusal  to  submit
to a chemical test, or has been convicted of or found to be in violation
of any subdivision of section eleven hundred ninety-two or section elev-
en  hundred  ninety-two-a  of  this  article not arising out of the same
incident, within the five years immediately preceding the date  of  such
revocation;  provided,  however, a prior finding that a person under the
age of twenty-one has refused to submit to a chemical test  pursuant  to
subdivision  three of section eleven hundred ninety-four-a of this arti-
cle shall have the same effect as a prior finding of a refusal  pursuant
to  this subdivision solely for the purpose of determining the length of
any license suspension or revocation required to be  imposed  under  any
provision  of  this  article,  provided  that  the subsequent offense or
refusal is  committed  or  occurred  prior  to  the  expiration  of  the
retention period for such prior refusal as set forth in paragraph (k) of
subdivision one of section two hundred one of this chapter.
  b.  Any  license  which  has been revoked pursuant to paragraph (c) of
this subdivision or pursuant to  subdivision  three  of  section  eleven
hundred  ninety-four-a  of  this article, where the holder was under the
age of twenty-one years at the  time  of  such  refusal,  shall  not  be
restored for at least one year, nor thereafter, except in the discretion
of the commissioner. Where such person under the age of twenty-one years
has  a  prior  finding,  conviction  or  youthful  offender adjudication

S. 5345                             5

resulting from a violation  of  section  eleven  hundred  ninety-two  or
section  eleven  hundred  ninety-two-a of this article, not arising from
the same incident, such license shall not be restored for at  least  one
year or until such person reaches the age of twenty-one years, whichever
is  the greater period of time, nor thereafter, except in the discretion
of the commissioner.
  c. Any commercial driver's license which has been revoked pursuant  to
paragraph  (c)  of  this  subdivision based upon a finding of refusal to
submit to a chemical test, where such finding occurs within  or  outside
of  this state, shall not be restored for at least eighteen months after
such revocation, nor thereafter, except in the discretion of the commis-
sioner, but shall not be restored for at least three  years  after  such
revocation,  nor thereafter, except in the discretion of the commission-
er, if the holder of such license was operating a commercial motor vehi-
cle transporting hazardous materials at the time of such refusal. Howev-
er, such person shall  be  permanently  disqualified  from  operating  a
commercial  motor vehicle in any case where the holder has a prior find-
ing of refusal to submit to a chemical test pursuant to this section  or
has  a  prior conviction of any of the following offenses: any violation
of section eleven hundred ninety-two of this article; any  violation  of
subdivision  one or two of section six hundred of this chapter; or has a
prior conviction of any felony involving the  use  of  a  motor  vehicle
pursuant  to  paragraph  (a)  of subdivision one of section five hundred
ten-a of this chapter. Provided that the  commissioner  may  waive  such
permanent  revocation  after a period of ten years has expired from such
revocation provided:
  (i) that during such ten year period such person has not been found to
have refused a chemical test pursuant to this section and has  not  been
convicted of any one of the following offenses: any violation of section
eleven hundred ninety-two of this article; refusal to submit to a chemi-
cal  test  pursuant to this section; any violation of subdivision one or
two of section six hundred of this chapter; or has a prior conviction of
any felony involving the use of a motor vehicle  pursuant  to  paragraph
(a) of subdivision one of section five hundred ten-a of this chapter;
  (ii) that such person provides acceptable documentation to the commis-
sioner  that  such person is not in need of alcohol or drug treatment or
has satisfactorily completed a prescribed course of such treatment; and
  (iii) after such documentation is accepted, that such person is grant-
ed a certificate of relief from disabilities or a  certificate  of  good
conduct  pursuant  to  article twenty-three of the correction law by the
court in which such person was last penalized.
  d. Upon a third finding of refusal and/or conviction  of  any  of  the
offenses  which  require a permanent commercial driver's license revoca-
tion, such permanent revocation may not be waived  by  the  commissioner
under any circumstances.
  (2)  Civil  penalties.  Except as otherwise provided, any person whose
license, permit to drive, or any  non-resident  operating  privilege  is
revoked  pursuant to the provisions of this section shall also be liable
for a civil penalty in the amount of five hundred dollars except that if
such revocation is a second or subsequent revocation  pursuant  to  this
section  issued  within  a  five  year  period,  or such person has been
convicted of a violation of any subdivision of  section  eleven  hundred
ninety-two of this article within the past five years not arising out of
the  same  incident,  the  civil penalty shall be in the amount of seven
hundred fifty dollars. Any person whose license is revoked  pursuant  to
the provisions of this section based upon a finding of refusal to submit

S. 5345                             6

to a chemical test while operating a commercial motor vehicle shall also
be  liable for a civil penalty of five hundred fifty dollars except that
if such person has previously been found to have refused a chemical test
pursuant  to  this section while operating a commercial motor vehicle or
has a prior conviction of any of the following offenses while  operating
a  commercial  motor  vehicle:  any  violation of section eleven hundred
ninety-two of this article; any violation of subdivision two of  section
six  hundred  of  this  chapter; or has a prior conviction of any felony
involving the use of a commercial motor vehicle  pursuant  to  paragraph
(a)  of  subdivision  one of section five hundred ten-a of this chapter,
then the civil penalty shall be seven  hundred  fifty  dollars.  No  new
driver's  license  or  permit shall be issued, or non-resident operating
privilege restored to such person unless such penalty has been paid. All
penalties collected by the department pursuant to the provisions of this
section shall be the property of the state and shall be  paid  into  the
general fund of the state treasury.
  (3)  Effect of rehabilitation program. No period of revocation arising
out of this section may be set aside by the commissioner for the  reason
that  such  person  was  a participant in the alcohol and drug rehabili-
tation program set forth in section eleven hundred  ninety-six  of  this
article.
  (e)  Regulations.  The  commissioner  shall  promulgate such rules and
regulations as may be necessary to effectuate the provisions of subdivi-
sions one and two of this section.
  (f) Evidence. Evidence of a refusal to submit to such chemical test or
any portion thereof shall be admissible  in  any  trial,  proceeding  or
hearing  based  upon  a  violation  of  the provisions of section eleven
hundred ninety-two of this article but only  upon  a  showing  that  the
person  was given sufficient warning, in clear and unequivocal language,
of the effect of such refusal and  that  the  person  persisted  in  the
refusal.
  (g)  Results.  Upon  the  request  of  the  person who was tested, the
results of such test shall be made available to such person.
  3. Compulsory  chemical  tests.  (a)  Court  ordered  chemical  tests.
Notwithstanding  the  provisions  of subdivision two of this section, no
person who operates a motor vehicle in this state may refuse  to  submit
to a chemical test of one or more of the following: breath, blood, urine
or  saliva,  for  the  purpose  of determining the alcoholic and/or drug
content of the blood when a court order for such chemical test has  been
issued in accordance with the provisions of this subdivision.
  (b)  When authorized. Upon refusal by any person to submit to a chemi-
cal test or any portion thereof as described above, the test  shall  not
be  given  unless a police officer or a district attorney, as defined in
subdivision thirty-two of section 1.20 of the  criminal  procedure  law,
requests  and  obtains  a  court order to compel a person to submit to a
chemical test to determine the alcoholic or drug content of the person's
blood upon a finding of reasonable cause to believe that:
  (1) such person was the operator of a motor vehicle and in the  course
of  such  operation  a  person  other  than  the  operator was killed or
suffered serious physical injury as defined  in  section  10.00  of  the
penal law; and
  (2)  a.  either  such  person operated the vehicle in violation of any
subdivision of section eleven hundred ninety-two of this article, or
  b. a breath test OR SALIVA SWAB administered by a  police  officer  in
accordance  with  paragraph (b) of subdivision one of this section indi-
cates [that] THE CONSUMPTION OF alcohol [has been consumed] OR DRUGS  by

S. 5345                             7

such  person; OR A POLICE OFFICER TRAINED AND CERTIFIED AS A DRUG RECOG-
NITION EXPERT OR A POLICE OFFICER TRAINED AND CERTIFIED PURSUANT TO  THE
FEDERAL  ADVANCED  ROADSIDE  IMPAIRED  DRIVING  ENFORCEMENT  PROGRAM HAS
REASON  TO  BELIEVE  THAT SUCH PERSON IS UNDER THE INFLUENCE OF DRUGS OR
THE COMBINED INFLUENCE OF DRUGS AND ALCOHOL; and
  (3) such person has been placed under lawful arrest; and
  (4) such person has refused to  submit  to  a  chemical  test  or  any
portion  thereof,  requested  in accordance with the provisions of para-
graph (a) of subdivision two of  this  section  or  is  unable  to  give
consent to such a test.
  (c)  Reasonable cause; definition. For the purpose of this subdivision
"reasonable cause" shall  be  determined  by  viewing  the  totality  of
circumstances surrounding the incident which, when taken together, indi-
cate  that  the  operator  was  driving  in  violation of section eleven
hundred ninety-two of this article. Such circumstances may include,  but
are  not  limited  to:  evidence that the operator was operating a motor
vehicle in violation of any provision  of  this  article  or  any  other
moving  violation at the time of the incident; any visible indication of
alcohol or drug consumption or impairment by the operator; the existence
of DRUGS OR DRUG PARAPHERNALIA; OR an open container containing an alco-
holic beverage in or around the vehicle  driven  by  the  operator;  any
other evidence surrounding the circumstances of the incident which indi-
cates  that  the  operator  has  been  operating  a  motor vehicle while
impaired by the consumption of alcohol or drugs or  intoxicated  at  the
time of the incident.
  (d)  Court  order;  procedure. (1) An application for a court order to
compel submission to a chemical test or any portion thereof, may be made
to any supreme court justice, county court judge or district court judge
in the judicial district in which the incident occurred, or if the inci-
dent occurred in the city of New York before any supreme  court  justice
or judge of the criminal court of the city of New York. Such application
may  be  communicated  by  telephone, radio or other means of electronic
communication, or in person.
  (2) The applicant must provide identification by name  and  title  and
must  state the purpose of the communication. Upon being advised that an
application for a court order to compel submission to a chemical test is
being made, the court shall place under oath the applicant and any other
person providing information in support of the application  as  provided
in subparagraph three of this paragraph. After being sworn the applicant
must state that the person from whom the chemical test was requested was
the  operator  of  a motor vehicle and in the course of such operation a
person, other than the operator, has been killed  or  seriously  injured
and, based upon the totality of circumstances, there is reasonable cause
to  believe  that such person was operating a motor vehicle in violation
of any subdivision of section eleven hundred ninety-two of this  article
and,  after  being  placed  under  lawful  arrest such person refused to
submit to a chemical test or any portion thereof, in accordance with the
provisions of this section or is unable to give consent to such  a  test
or  any portion thereof. The applicant must make specific allegations of
fact to support such statement. Any other  person  properly  identified,
may  present  sworn  allegations  of  fact in support of the applicant's
statement.
  (3) Upon being advised that an oral application for a court  order  to
compel  a  person to submit to a chemical test is being made, a judge or
justice shall place under  oath  the  applicant  and  any  other  person
providing  information in support of the application. Such oath or oaths

S. 5345                             8

and all of the remaining communication must be recorded, either by means
of a voice recording device or verbatim stenographic or  verbatim  long-
hand notes. If a voice recording device is used or a stenographic record
made, the judge must have the record transcribed, certify to the accura-
cy  of  the transcription and file the original record and transcription
with the court within seventy-two hours of the  issuance  of  the  court
order. If the longhand notes are taken, the judge shall subscribe a copy
and  file  it with the court within twenty-four hours of the issuance of
the order.
  (4) If the court is satisfied that the requirements for  the  issuance
of  a  court  order  pursuant to the provisions of paragraph (b) of this
subdivision have been met, it may grant the  application  and  issue  an
order  requiring  the  accused to submit to a chemical test to determine
the alcoholic and/or drug content of his blood and  ordering  the  with-
drawal  of a blood sample in accordance with the provisions of paragraph
(a) of subdivision four of this section. When a judge or justice  deter-
mines to issue an order to compel submission to a chemical test based on
an  oral  application, the applicant therefor shall prepare the order in
accordance with the instructions of the judge or justice.  In all  cases
the  order  shall  include the name of the issuing judge or justice, the
name of the applicant, and the date and time it was issued.  It must  be
signed  by the judge or justice if issued in person, or by the applicant
if issued orally.
  (5) Any false statement by an applicant or any other person in support
of an application for a court order shall subject  such  person  to  the
offenses  for  perjury set forth in article two hundred ten of the penal
law.
  (6) The chief administrator of the courts shall establish  a  schedule
to provide that a sufficient number of judges or justices will be avail-
able  in  each  judicial  district  to  hear oral applications for court
orders as permitted by this section.
  (e) Administration of compulsory chemical test. An order issued pursu-
ant to the provisions of this subdivision shall require that a  chemical
test  to  determine  the alcoholic and/or drug content of the operator's
blood must be administered. The provisions of paragraphs  (a),  (b)  and
(c) of subdivision four of this section shall be applicable to any chem-
ical test administered pursuant to this section.
  S 2. This act shall take effect on the first of November next after it
shall have become a law.

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