senate Bill S757

2013-2014 Legislative Session

Relates to compulsory chemical testing

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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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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 11, 2013 referred to transportation
delivered to assembly
passed senate
Jun 10, 2013 advanced to third reading
Jun 05, 2013 2nd report cal.
Jun 04, 2013 1st report cal.1085
Jan 09, 2013 referred to transportation

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Co-Sponsors

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S757 - Bill Details

Current Committee:
Law Section:
Vehicle and Traffic Law
Laws Affected:
Amd ยง1194, V & T L
Versions Introduced in 2011-2012 Legislative Session:
S3768B

S757 - Bill Texts

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Relates to compulsory chemical testing.

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BILL NUMBER:S757

TITLE OF BILL:
An act
to amend the vehicle and traffic law, in relation to compulsory
chemical tests

PURPOSE:
The purpose of this bill is to provide the necessary tools to allow
the implementation of a "no refusal" policy in New York State,

SUMMARY OF PROVISIONS:
This bill amends the section 1194 of the Vehicle and Traffic Law to
allow application to a court to compel compliance with a chemical
test where a motorist is suspected to be under the influence and
where the driver has refused a chemical test.

EXISTING LAW:
Under current law, a police officer or district attorney may apply for
an order to compel upon refusal by an operator to submit to a
chemical test only when there is reasonable cause to believe the
operator is DUI and there is serious bodily harm or death. Law
enforcement is not permitted to apply for an order to compel where
there is there is reasonable cause, but neither serious bodily harm
nor death.

JUSTIFICATION:
Under current law, upon receipt of his or her driver license a
motorist is deemed to have given consent to submit to a chemical test
when reasonable cause exists to believe he or she is driving under
the influence - this is a condition of the privilege to drive. Should
a motorist choose not to submit, he or she faces a period of license
revocation and monetary penalties. Law enforcement, however, faces
the prospect of having to make a case without what is often times the
sole piece of objective evidence in a DUI case.

Given the choice of a fine and period of revocation, as against
providing substantial evidence of one's guilt in what could be a
criminal matter, it is no surprise that many times a motorist refuses
to submit to a chemical test. This legislation seeks to strengthen
law enforcement's hand in these situations. This bill
would allow applications to the court in any situation in which law
enforcement has a reasonable belief that a motorist is driving under
the influence and that motorist has refused to submit to a chemical
test. This bill would add real teeth to the "implied consent"
provision of the Vehicle and Traffic Law.

Presently, the authority to apply to a court for an order to compel
submission to a chemical test exists only in situations of death or
serious injury. This bill allow for applications to the court where a
motorist refuses to submit to a chemical test in situations where

there is a reasonable cause exists to believe the motorist is under
the influence but in which there has been no death or serious injury.
In so amending the law, all judicial safeguards have been preserved.
A law enforcement officer must articulate to a judge his or her
reasonable cause for the belief that the motorist was driving under
the influence, and only when a judge is satisfied that such cause
exists will a court order be issued.

In December, U.S. Transportation Secretary, Ray LaHood highlighted the
need for a national "no refusal" policy, calling on each state to
adopt such a policy. Presently, nine states implement no refusal
strategies at some level. New York's adoption of such a policy would
be a strong tool for law enforcement in the prevention of DUI and DUI
related tragedies.

LEGISLATIVE HISTORY:
2011-12: Passed the Senate (S.3768B)

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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

                                   757

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  FUSCHILLO,  LARKIN,  LAVALLE, RANZENHOFER -- 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 compulsory
  chemical tests

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

  Section  1.    Paragraph  (b)  of subdivision 3 of section 1194 of the
vehicle and traffic law, as added by chapter 47 of the laws of 1988,  is
amended to read as follows:
  (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 administered by a police officer in accordance with
paragraph (b) of subdivision one of this section indicates that  alcohol
has been consumed by such person; and
  [(3)] (2) such person has been placed under lawful arrest; and
  [(4)]  (3) such person has refused to submit to a chemical test or any
portion thereof, requested in accordance with the  provisions  of  para-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01338-02-3

S. 757                              2

graph  (a)  of  subdivision  two  of  this  section or is unable to give
consent to such a test.
  S  2.  Subparagraphs  1  and  2  of  paragraph (b) of subdivision 2 of
section 1194 of the vehicle and traffic law, as amended by  chapter  196
of the laws of 1996, are amended to read as follows:
  (1)  If: (A) such person having been placed under arrest; or (B) after
a breath test indicates 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 immediately 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 there-
of, [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 immediately made by the police officer before whom
such  refusal was made. Such report may be verified by having the report
sworn to, or by affixing to such report a form notice that false  state-
ments  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[,] AND that said person had refused to submit to such chem-
ical 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.
  S 3. Subparagraph 2 of paragraph (d) of subdivision 3 of section  1194
of  the  vehicle  and traffic law, as added by chapter 47 of the laws of
1988, is amended to read as follows:
  (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

S. 757                              3

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  accord-
ance 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.
  S 4. This act shall take effect immediately.

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