senate Bill S7548

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 12, 2014 referred to transportation
delivered to assembly
passed senate
Jun 10, 2014 advanced to third reading
Jun 09, 2014 2nd report cal.
Jun 03, 2014 1st report cal.1186
May 15, 2014 referred to transportation

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S7548 - Bill Details

See Assembly Version of this Bill:
A8006A
Current Committee:
Law Section:
Vehicle and Traffic Law
Laws Affected:
Amd §1194-a, V & T L
Versions Introduced in 2013-2014 Legislative Session:
A8006

S7548 - Bill Texts

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Relates to saliva swabs and chemical tests in certain cases.

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BILL NUMBER:S7548

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: Passed Senate 2013

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
________________________________________________________________________

                                  7548

                            I N  S E N A T E

                              May 15, 2014
                               ___________

Introduced  by  Sen.  ROBACH -- 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.
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10975-05-4

S. 7548                             2

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
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

S. 7548                             3

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
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

S. 7548                             4

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
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

S. 7548                             5

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
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

S. 7548                             6

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
such  person; OR A POLICE OFFICER TRAINED AND CERTIFIED AS A DRUG RECOG-
NITION EXPERT OR A POLICE OFFICER WHO HAS COMPLETED TRAINING PURSUANT TO
THE FEDERAL ADVANCED ROADSIDE IMPAIRED DRIVING ENFORCEMENT  PROGRAM  HAS

S. 7548                             7

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
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

S. 7548                             8

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 succeed-
ing the date on which it shall have become a law.

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