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

                                  5859

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 18, 2013
                               ___________

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

AN  ACT  to  amend  the  vehicle and traffic law, in relation to driving
  while intoxicated and ignition interlock devices

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

  Section  1.  Subparagraph  (iii)  of paragraph (a) of subdivision 3 of
section 511 of the vehicle and traffic law, as amended by chapter 746 of
the laws of 2006, is amended and a new subparagraph  (iv)  is  added  to
read as follows:
  (iii)  commits  the  offense  of  aggravated unlicensed operation of a
motor vehicle in the third degree as defined in subdivision one of  this
section;  and is operating a motor vehicle while under permanent revoca-
tion as set forth in subparagraph twelve of paragraph (b) of subdivision
two of section eleven hundred ninety-three of this chapter[.]; OR
  (IV) OPERATES A MOTOR VEHICLE UPON A PUBLIC HIGHWAY  WHILE  HOLDING  A
CONDITIONAL  LICENSE  ISSUED  PURSUANT  TO  PARAGRAPH (A) OF SUBDIVISION
SEVEN OF SECTION ELEVEN HUNDRED NINETY-SIX OF THIS CHAPTER  WHILE  UNDER
THE INFLUENCE OF ALCOHOL OR A DRUG IN VIOLATION OF SUBDIVISION ONE, TWO,
TWO-A,  THREE, FOUR, FOUR-A OR FIVE OF SECTION ELEVEN HUNDRED NINETY-TWO
OF THIS CHAPTER.
  S 2. Paragraphs (b) and (c) of subdivision 1 of section  1193  of  the
vehicle  and traffic law, as amended by chapter 496 of the laws of 2009,
are amended to read as follows:
  (b) Driving while intoxicated or while ability impaired  by  drugs  or
while  ability impaired by the combined influence of drugs or of alcohol
and any drug or drugs; aggravated driving while intoxicated; misdemeanor
offenses. (i) A violation of subdivision two, three, four or  four-a  of
section eleven hundred ninety-two of this article shall be a misdemeanor
and  shall be punishable by a fine of not less than five hundred dollars
nor more than one thousand dollars, or by imprisonment in a penitentiary

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01426-09-3
              

S. 5859                             2

or county jail for not more than one year, or  by  both  such  fine  and
imprisonment.  A  violation  of  paragraph  (a)  of subdivision two-a of
section eleven hundred ninety-two of this article shall be a misdemeanor
and  shall be punishable by a fine of not less than one thousand dollars
nor more than two thousand five hundred dollars or by imprisonment in  a
penitentiary  or county jail for not more than one year, or by both such
fine and imprisonment.
  (ii) In addition to the imposition of any fine or period of  imprison-
ment  set  forth  in  this paragraph, the court shall also sentence such
person convicted of, OR ADJUDICATED A YOUTHFUL OFFENDER FOR, a violation
of subdivision two, two-a or three of section eleven hundred  ninety-two
of  this  article  to  a  [period]  TERM  of  probation  or  conditional
discharge, as a condition of which it shall order such person to install
and maintain, in  accordance  with  the  provisions  of  section  eleven
hundred  ninety-eight  of  this article, an ignition interlock device in
any motor vehicle owned or operated by such person during  the  term  of
such  probation  or  conditional discharge imposed for such violation of
section eleven hundred ninety-two of this article and in no event for  A
PERIOD  OF  less  than [six] TWELVE months; PROVIDED, HOWEVER, THAT SUCH
PERIOD OF INTERLOCK RESTRICTION SHALL TERMINATE UPON SUBMISSION OF PROOF
THAT SUCH PERSON INSTALLED AND MAINTAINED AN IGNITION  INTERLOCK  DEVICE
FOR AT LEAST SIX MONTHS, UNLESS THE COURT ORDERED SUCH PERSON TO INSTALL
AND MAINTAIN AN IGNITION INTERLOCK DEVICE FOR A LONGER PERIOD AS AUTHOR-
IZED  BY  THIS  SUBPARAGRAPH AND SPECIFIED IN SUCH ORDER.  THE PERIOD OF
INTERLOCK RESTRICTION SHALL COMMENCE FROM THE EARLIER  OF  THE  DATE  OF
SENTENCING,  OR THE DATE THAT AN IGNITION INTERLOCK DEVICE WAS INSTALLED
IN ADVANCE OF SENTENCING. Provided, however, the court may not authorize
the operation of a motor vehicle by any person whose license  or  privi-
lege  to  operate  a  motor  vehicle  has  been  revoked pursuant to the
provisions of this section.
  (c) Felony offenses. (i) A  person  who  operates  a  vehicle  (A)  in
violation  of  subdivision  two, two-a, three, four or four-a of section
eleven hundred ninety-two of this article after having been convicted of
a violation of subdivision two, two-a, three, four  or  four-a  of  such
section  or  of  vehicular  assault  in  the  second or first degree, as
defined, respectively, in sections  120.03  and  120.04  and  aggravated
vehicular  assault as defined in section 120.04-a of the penal law or of
vehicular manslaughter in  the  second  or  first  degree,  as  defined,
respectively,  in  sections  125.12  and 125.13 and aggravated vehicular
homicide as defined in section 125.14 of such law, within the  preceding
ten  years, or (B) in violation of paragraph (b) of subdivision two-a of
section eleven hundred ninety-two of this article shall be guilty  of  a
class  E  felony,  and  shall be punished by a fine of not less than one
thousand dollars nor more than five thousand dollars or by a  period  of
imprisonment  as  provided  in  the  penal law, or by both such fine and
imprisonment.
  (ii) A person who operates a vehicle in violation of subdivision  two,
two-a,  three,  four  or  four-a of section eleven hundred ninety-two of
this article after having been convicted of a violation  of  subdivision
two,  two-a,  three,  four  or  four-a  of  such section or of vehicular
assault in the second or first  degree,  as  defined,  respectively,  in
sections  120.03  and 120.04 and aggravated vehicular assault as defined
in section 120.04-a of the penal law or of vehicular manslaughter in the
second or first degree, as defined, respectively, in sections 125.12 and
125.13 and aggravated vehicular homicide as defined in section 125.14 of
such law, twice within the preceding ten years, shall  be  guilty  of  a

S. 5859                             3

class  D  felony,  and  shall be punished by a fine of not less than two
thousand dollars nor more than ten thousand dollars or by  a  period  of
imprisonment  as  provided  in  the  penal law, or by both such fine and
imprisonment.
  (iii) In addition to the imposition of any fine or period of imprison-
ment  set  forth  in  this paragraph, the court shall also sentence such
person convicted of, OR ADJUDICATED A YOUTHFUL OFFENDER FOR, a violation
of subdivision two, two-a or three of section eleven hundred  ninety-two
of  this article to a period of probation or conditional discharge, as a
condition of which it shall order such person to install  and  maintain,
in accordance with the provisions of section eleven hundred ninety-eight
of this article, an ignition interlock device in any motor vehicle owned
or  operated  by such person during the term of such probation or condi-
tional discharge imposed for such violation of  section  eleven  hundred
ninety-two  of  this  article  and in no event for a period of less than
[six] TWELVE months; PROVIDED, HOWEVER, THAT SUCH  PERIOD  OF  INTERLOCK
RESTRICTION  SHALL  TERMINATE  UPON SUBMISSION OF PROOF THAT SUCH PERSON
INSTALLED AND MAINTAINED AN IGNITION INTERLOCK DEVICE FOR AT  LEAST  SIX
MONTHS,  UNLESS  THE COURT ORDERED SUCH PERSON TO INSTALL AND MAINTAIN A
IGNITION INTERLOCK DEVICE FOR A LONGER  PERIOD  AS  AUTHORIZED  BY  THIS
SUBPARAGRAPH  AND  SPECIFIED  IN  SUCH  ORDER.   THE PERIOD OF INTERLOCK
RESTRICTION SHALL COMMENCE FROM THE EARLIER OF THE DATE  OF  SENTENCING,
OR  THE  DATE THAT AN IGNITION INTERLOCK DEVICE WAS INSTALLED IN ADVANCE
OF SENTENCING. Provided, however, the court may not authorize the opera-
tion of a motor vehicle by any person  whose  license  or  privilege  to
operate  a  motor vehicle has been revoked pursuant to the provisions of
this section.
  S 3. Paragraph (a) of subdivision 4 of section 1198 of the vehicle and
traffic law, as amended by chapter 496 of the laws of 2009,  is  amended
to read as follows:
  (a) Following imposition by the court of the use of an ignition inter-
lock  device  as  a  condition  of probation or conditional discharge it
shall require the person  to  provide  proof  of  compliance  with  this
section to the court and the probation department OR OTHER MONITOR where
such  person is under probation or conditional discharge supervision. If
the person fails to provide for such proof  of  installation,  absent  a
finding  by the court of good cause for that failure which is entered in
the record, the court may revoke,  modify,  or  terminate  the  person's
sentence  of  probation  or conditional discharge as provided under law.
GOOD CAUSE MAY INCLUDE A FINDING THAT THE PERSON IS NOT THE OWNER  OF  A
MOTOR  VEHICLE IF SUCH PERSON ASSERTS UNDER OATH THAT SUCH PERSON IS NOT
THE OWNER OF ANY MOTOR VEHICLE AND THAT HE OR SHE WILL NOT  OPERATE  ANY
MOTOR  VEHICLE  DURING THE PERIOD OF INTERLOCK RESTRICTION EXCEPT AS MAY
BE OTHERWISE AUTHORIZED PURSUANT TO LAW. "OWNER"  SHALL  HAVE  THE  SAME
MEANING AS PROVIDED IN SECTION ONE HUNDRED TWENTY-EIGHT OF THIS CHAPTER.
  S 4. This act shall take effect on the first of November next succeed-
ing  the  date  on  which  it shall have become a law and shall apply to
violations committed on and after such date; provided, however, that the
amendments to paragraph (a) of subdivision 4  of  section  1198  of  the
vehicle  and  traffic  law  made  by section three of this act shall not
affect the repeal of such section and shall be  deemed  repealed  there-
with.