S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    878
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2019
                                ___________
 
 Introduced  by  M. of A. KOLB -- read once and referred to the Committee
   on Alcoholism and Drug Abuse
 
 AN ACT to amend the general municipal law, in relation to  reimbursement
   of  municipal cost and expense incurred by motor vehicle drivers under
   the influence of alcohol and/or controlled substances

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The general municipal law is amended by adding a new arti-
 cle 17-B to read as follows:
                                ARTICLE 17-B
               REIMBURSEMENT OF MUNICIPAL EXPENSE BY DRIVERS
                 OF MOTOR VEHICLES UNDER THE INFLUENCE OF
                   ALCOHOL AND/OR A CONTROLLED SUBSTANCE
 SECTION 796.   SHORT TITLE; PURPOSE OF ARTICLE.
         796-A. DEFINITIONS.
         796-B. LOCAL LAWS AND ORDINANCES.
         796-C. STANDARD OF IMPAIRMENT; TESTING METHODS.
         796-D. PRESUMPTION WITH RESPECT TO CAUSAL CONNECTION.
         796-E. ADDITIONAL PRESUMPTION OF IMPAIRMENT.
         796-F. DAMAGES.
         796-G. ATTORNEY'S FEES, COURT COSTS AND EXPENSES; RECOVERY.
         796-H. SEVERABILITY.
   § 796. SHORT TITLE; PURPOSE OF ARTICLE. THIS ARTICLE  SHALL  BE  KNOWN
 AND MAY BE CITED AS THE "ALCOHOL AND CONTROLLED SUBSTANCE EXPENSE RECOV-
 ERY  ACT".  THE  LEGISLATURE  HEREBY  DECLARES THAT A HIGH PERCENTAGE OF
 AUTOMOBILE ACCIDENTS ARE RELATED TO THE USE OF  ALCOHOL  AND  CONTROLLED
 SUBSTANCES AND, IN ADDITION TO THE TERRIBLE LOSSES SUFFERED BY THE FAMI-
 LIES  AND  LOVED  ONES  OF INJURED PARTIES, THE COMMUNITY ITSELF SUFFERS
 SERIOUS FINANCIAL BURDENS BY BEING OBLIGED TO RESPOND TO THE  SCENES  OF
 SUCH ACCIDENTS. SINCE THERE WOULD APPEAR TO BE NO REASON WHY THOSE CAUS-
 ING  OR CONTRIBUTING TO SUCH ACCIDENTS WHEN USING ALCOHOLIC BEVERAGES OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04101-01-9

 A. 878                              2
 
 CONTROLLED SUBSTANCES SHOULD NOT SUFFER THE ECONOMIC BURDEN  CREATED  BY
 ANY  SUCH  ACCIDENT AND THE ADDITIONAL ECONOMIC BURDEN OF RECOVERING THE
 COSTS AND EXPENSES INCIDENT THERETO, IT IS  THE  DETERMINATION  OF  THIS
 LEGISLATURE  THAT  THE  PASSAGE  OF THIS ARTICLE IS REQUIRED IN ORDER TO
 ALLOW THE MORE EQUITABLE DISTRIBUTION OF THE COST AND EXPENSE IMPOSED BY
 SUCH ANTISOCIAL CONDUCT.
   § 796-A. DEFINITIONS. THE FOLLOWING  TERMS  SHALL  HAVE  THE  MEANINGS
 HEREINAFTER SET FORTH, RESPECTIVELY:
   1.  "CONTROLLED SUBSTANCES" SHALL MEAN AND INCLUDE ANY SUBSTANCE NAMED
 OR DESCRIBED AS SUCH IN TITLE ONE OF ARTICLE THIRTY-THREE OF THE  PUBLIC
 HEALTH LAW.
   2. "COSTS AND EXPENSES OF EMERGENCY RESPONSES" SHALL MEAN AND INCLUDE,
 BUT  NOT  BE  LIMITED TO, ALL COSTS OF LABOR, MEDICAL MATERIALS, MEDICAL
 EQUIPMENT, POLICE EQUIPMENT, FIRE EQUIPMENT, AND ADMINISTRATIVE EXPENSES
 ASSOCIATED THEREWITH, WHICH SHALL BE EXPENDED,  USED,  ASSOCIATED  WITH,
 OCCASIONED  BY  OR  CONNECTED WITH ANY EMERGENCY MEDICAL, FIRE OR POLICE
 RESPONSE AND, FOR THE PURPOSES HEREOF, THE COSTS OF  EMERGENCY  MEDICAL,
 FIRE  AND  POLICE MANPOWER SERVICES SHALL BE AS SET FORTH ON SUCH SCHED-
 ULES AS A MUNICIPALITY MAY ADOPT,  FROM  TIME  TO  TIME,  BY  RESOLUTION
 PURSUANT TO THIS ARTICLE.
   §   796-B.  LOCAL  LAWS  AND  ORDINANCES.  NOTWITHSTANDING  ANY  OTHER
 PROVISION OF LAW TO THE CONTRARY AND SUBJECT TO THE PROVISIONS  OF  THIS
 ARTICLE, ANY CITY, COUNTY, TOWN OR VILLAGE IN THIS STATE, ACTING THROUGH
 ITS  LOCAL LEGISLATIVE BODY, IS HEREBY AUTHORIZED AND EMPOWERED TO ADOPT
 AND AMEND EITHER A LOCAL LAW OR AN ORDINANCE PROVIDING FOR THE  RECOVERY
 BY  SUCH  MUNICIPALITY OF ANY COST OR EXPENSE INCURRED OR EXPENDED BY IT
 AS THE RESULT OF THE OPERATION OF A MOTOR VEHICLE  WITHIN  SUCH  MUNICI-
 PALITY BY AN INDIVIDUAL WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES
 OR  CONTROLLED  SUBSTANCES  OR  A COMBINATION OF ALCOHOLIC BEVERAGES AND
 CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES ARE
 IMPAIRED OR TO THE EXTENT THAT HE OR SHE IS DEPRIVED OF FULL  POSSESSION
 OF  HIS  OR  HER  NORMAL FACULTIES AND, IF SUCH PERSON SHALL PROXIMATELY
 CAUSE AN ACCIDENT OR IS A SUBSTANTIAL CAUSATIVE FACTOR  OF  AN  ACCIDENT
 RESULTING  IN  THE  NEED  FOR  SUCH  MUNICIPALITY  TO  PROVIDE EMERGENCY
 MEDICAL, FIRE OR POLICE RESPONSES OR  SERVICES,  SUCH  PERSON  SHALL  BE
 LIABLE TO SUCH MUNICIPALITY FOR ALL COSTS AND EXPENSES OF SUCH EMERGENCY
 RESPONSES AND SERVICES.
   §  796-C. STANDARD OF IMPAIRMENT; TESTING METHODS.  1. IN ANY TRIAL OF
 ANY CIVIL ACTION OR PROCEEDING WITH RESPECT TO THE  ENFORCEMENT  OF  ANY
 LOCAL  LAW  OR ORDINANCE PASSED PURSUANT HERETO ALLEGING THAT ANY PERSON
 IS LIABLE TO SUCH MUNICIPALITY BECAUSE SUCH PERSON WAS THE CAUSE  OF  OR
 WAS  A  SUBSTANTIAL  CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING EMERGENCY
 MEDICAL, FIRE OR POLICE RESPONSES WHILE SUCH PERSON WAS  DRIVING  OR  IN
 ACTUAL  PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE OF ALCO-
 HOLIC BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF  ALCOHOLIC
 BEVERAGES  AND  CONTROLLED  SUBSTANCES,  TO  THE  EXTENT THAT HIS OR HER
 NORMAL FACULTIES WERE IMPAIRED, OR TO THE EXTENT  THAT  HE  OR  SHE  WAS
 DEPRIVED  OF FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, THE RESULTS
 OF ANY TEST ADMINISTERED IN ACCORDANCE WITH ARTICLE  THIRTY-ONE  OF  THE
 VEHICLE AND TRAFFIC LAW SHALL BE ADMISSIBLE INTO EVIDENCE WHEN OTHERWISE
 ADMISSIBLE,  AND  THE  AMOUNT  OF ALCOHOL OR CONTROLLED SUBSTANCE IN THE
 PERSON'S BLOOD AT THE TIME ALLEGED, AS SHOWN BY CHEMICAL ANALYSIS OF THE
 PERSON'S BLOOD OR BREATH OR URINE, SHALL  GIVE  RISE  TO  THE  FOLLOWING
 PRESUMPTIONS:
   A.  IF THERE WAS, AT THE TIME, 0.05 PERCENT OR LESS BY WEIGHT OF ALCO-
 HOL IN THE PERSON'S BLOOD, AND IF THERE WAS NO EVIDENCE OF A  CONTROLLED

 A. 878                              3
 
 SUBSTANCE  IN  SUCH PERSON'S BLOOD, IT SHALL BE PRESUMED THAT THE PERSON
 WAS NOT  UNDER  THE  INFLUENCE  OF  ALCOHOLIC  BEVERAGES  OR  CONTROLLED
 SUBSTANCES  OR  ANY  COMBINATION  THEREOF  TO THE EXTENT THAT HIS OR HER
 NORMAL FACULTIES WERE IMPAIRED.
   B.  IF THERE WAS, AT THE TIME, IN EXCESS OF 0.05 PERCENT BUT LESS THAN
 0.08 PERCENT BY WEIGHT OF ALCOHOL IN THE PERSON'S BLOOD SUCH FACTS SHALL
 NOT GIVE RISE TO ANY PRESUMPTION THAT THE PERSON WAS OR  WAS  NOT  UNDER
 THE  INFLUENCE  OF  ALCOHOLIC  BEVERAGES  OR  CONTROLLED SUBSTANCES OR A
 COMBINATION THEREOF TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES  WERE
 IMPAIRED,  BUT SUCH FACT MAY BE CONSIDERED WITH OTHER COMPETENT EVIDENCE
 IN DETERMINING WHETHER THE PERSON WAS UNDER THE INFLUENCE  OF  ALCOHOLIC
 BEVERAGES  OR  CONTROLLED  SUBSTANCES  OR ANY COMBINATION THEREOF TO THE
 EXTENT THAT HIS OR HER NORMAL FACULTIES WERE IMPAIRED.
   C. IF THERE WAS, AT THE TIME, 0.08 PERCENT OR MORE BY WEIGHT OF  ALCO-
 HOL IN THE PERSON'S BLOOD, EVEN IF THERE WAS NO EVIDENCE OF A CONTROLLED
 SUBSTANCE  IN  SUCH  PERSON'S  BLOOD,  SUCH  FACT  SHALL  BE PRIMA FACIE
 EVIDENCE THAT THE PERSON WAS UNDER THE INFLUENCE OF ALCOHOLIC  BEVERAGES
 TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES WERE IMPAIRED.
   D.  IF  THERE WAS, AT THE TIME, IN EXCESS OF 0.05 PERCENT BY WEIGHT OF
 ALCOHOL IN THE PERSON'S BLOOD AND EVIDENCE OF A CONTROLLED SUBSTANCE  IN
 THE  PERSON'S  BLOOD,  SUCH FACTS SHALL BE PRIMA FACIE EVIDENCE THAT THE
 PERSON WAS UNDER THE INFLUENCE OF A COMBINATION OF  ALCOHOLIC  BEVERAGES
 AND CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES
 WERE IMPAIRED.
   2.  THE  PERCENT BY WEIGHT OF ALCOHOL IN THE BLOOD SHALL BE BASED UPON
 GRAMS OF ALCOHOL PER 100 MILLILITERS OF BLOOD.
   3. THE FOREGOING PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED  AS
 LIMITING  THE  INTRODUCTION OF OTHER COMPETENT EVIDENCE BEARING UPON THE
 QUESTION OF WHETHER THE PERSON WAS  UNDER  THE  INFLUENCE  OF  ALCOHOLIC
 BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC BEVER-
 AGES  AND  CONTROLLED  SUBSTANCES,  EITHER TO THE EXTENT THAT HIS OR HER
 NORMAL FACULTIES WERE IMPAIRED OR TO THE  EXTENT  THAT  HE  OR  SHE  WAS
 DEPRIVED OF FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, OR THAT SUCH
 IMPAIRMENT  WAS  THE  PROXIMATE  CAUSE OR SUBSTANTIALLY CAUSATIVE OF THE
 ACCIDENT GIVING RISE TO THE NEED FOR EMERGENCY MEDICAL, POLICE  OR  FIRE
 SERVICES.
   4.  A  CHEMICAL  ANALYSIS  OF  A PERSON'S BLOOD TO DETERMINE ALCOHOLIC
 CONTENT, A CHEMICAL ANALYSIS OF A PERSON'S BREATH OR A CHEMICAL ANALYSIS
 OF A  PERSON'S  URINE,  IN  ORDER  TO  BE  CONSIDERED  VALID  UNDER  THE
 PROVISIONS  OF  THIS  SECTION, MUST HAVE BEEN PERFORMED SUBSTANTIALLY IN
 ACCORDANCE WITH THE METHOD SET FORTH IN ARTICLE THIRTY-ONE OF THE  VEHI-
 CLE  AND  TRAFFIC  LAW.  ANY  INSUBSTANTIAL DIFFERENCES BETWEEN APPROVED
 TECHNIQUES AND ACTUAL TESTING PROCEDURES IN ANY  INDIVIDUAL  CASE  SHALL
 NOT  RENDER  THE  TEST  OR TEST RESULTS INVALID. ANY TECHNIQUE OR METHOD
 APPROVED BY THE DEPARTMENT OF HEALTH WITH RESPECT TO SUCH ANALYSIS SHALL
 BE DEEMED ACCEPTABLE.   ANY PERSON WHO SHALL  BE  DEEMED  QUALIFIED  AND
 COMPETENT  TO CONDUCT SUCH ANALYSIS BY THE DEPARTMENT OF HEALTH SHALL BE
 DEEMED COMPETENT TO CONDUCT SUCH ANALYSIS.
   § 796-D. PRESUMPTION WITH RESPECT TO CAUSAL CONNECTION. IN  ANY  TRIAL
 OF ANY CIVIL ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT HEREOF
 ALLEGING THAT ANY PERSON IS LIABLE HEREUNDER BECAUSE SUCH PERSON WAS THE
 CAUSE  OF OR WAS A SUBSTANTIAL CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING
 EMERGENCY MEDICAL, FIRE OR POLICE RESPONSES WHILE SUCH PERSON WAS  DRIV-
 ING OR IN ACTUAL PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE
 OF  ALCOHOLIC  BEVERAGES  OR  CONTROLLED SUBSTANCES, OR A COMBINATION OF
 ALCOHOLIC BEVERAGES AND CONTROLLED SUBSTANCES, TO THE EXTENT THAT HIS OR

 A. 878                              4
 
 HER NORMAL FACULTIES WERE IMPAIRED OR THAT HE OR  SHE  WAS  DEPRIVED  OF
 FULL  POSSESSION  OF  HIS  OR HER NORMAL FACULTIES, IT SHALL BE PRESUMED
 THAT  A  PERSON  UNDER  THE  INFLUENCE  OF  ALCOHOLIC  BEVERAGES  AND/OR
 CONTROLLED  SUBSTANCES  TO  THE  EXTENT THAT HIS OR HER NORMAL FACULTIES
 WERE IMPAIRED, OR TO THE EXTENT THAT HE OR  SHE  WAS  DEPRIVED  OF  FULL
 POSSESSION  OF  HIS  OR HER NORMAL FACULTIES, WAS THE PROXIMATE CAUSE OR
 WAS A SUBSTANTIAL CAUSATIVE FACTOR OF THE ACCIDENT GIVING  RISE  TO  THE
 NEED FOR EMERGENCY MEDICAL, POLICE AND FIRE SERVICES.
   §  796-E.  ADDITIONAL  PRESUMPTION OF IMPAIRMENT.  IN ANY TRIAL OF ANY
 CIVIL ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT OF ANY  LOCAL
 LAW  OR  ORDINANCE  PASSED  PURSUANT  HERETO ALLEGING THAT ANY PERSON IS
 LIABLE TO SUCH MUNICIPALITY BECAUSE SUCH PERSON WAS THE CAUSE OF OR  WAS
 A  SUBSTANTIAL  CAUSATIVE  FACTOR  OF  AN  ACCIDENT  REQUIRING EMERGENCY
 MEDICAL, FIRE OR POLICE RESPONSES WHILE SUCH PERSON WAS  DRIVING  OR  IN
 ACTUAL  PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE OF ALCO-
 HOLIC BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF  ALCOHOLIC
 BEVERAGES  AND  CONTROLLED  SUBSTANCES,  TO  THE  EXTENT THAT HIS OR HER
 NORMAL FACULTIES WERE IMPAIRED OR THAT HE OR SHE WAS  DEPRIVED  OF  FULL
 POSSESSION  OF  HIS  OR  HER NORMAL FACULTIES, IT SHALL BE PRESUMED THAT
 SUCH PERSON'S NORMAL FACULTIES WERE IMPAIRED OR  THAT  SUCH  PERSON  WAS
 DEPRIVED  OF  FULL  POSSESSION  OF  HIS  OR HER NORMAL FACULTIES IF SUCH
 PERSON SHALL PLEAD GUILTY TO OR SHALL HAVE BEEN FOUND GUILTY AFTER TRIAL
 OF A VIOLATION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE  VEHICLE  AND
 TRAFFIC  LAW OR IF SUCH PERSON REFUSES AN OFFICER'S REQUEST TO SUBMIT TO
 ANY BREATH, BLOOD OR URINE TEST PROVIDED IN SECTION ELEVEN HUNDRED NINE-
 TY-FOUR OF THE VEHICLE AND TRAFFIC  LAW  AND  SUCH  OFFICER  SHALL  HAVE
 SUBMITTED  A SWORN STATEMENT THAT HE HAD REASONABLE CAUSE TO BELIEVE THE
 PERSON HAD BEEN DRIVING OR HAD BEEN IN  ACTUAL  PHYSICAL  CONTROL  OF  A
 MOTOR  VEHICLE  WITHIN  SUCH  MUNICIPALITY  WHILE UNDER THE INFLUENCE OF
 ALCOHOLIC BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF  ALCO-
 HOLIC  BEVERAGES  AND  CONTROLLED  SUBSTANCES,  AND THAT SUCH PERSON HAD
 REFUSED TO SUBMIT TO THE TEST OR TESTS AFTER BEING REQUESTED TO DO SO BY
 THE OFFICER.
   § 796-F. DAMAGES. EVERY MUNICIPALITY ADOPTING A LOCAL LAW OR ORDINANCE
 PURSUANT TO THIS ARTICLE SHALL DEVELOP AND KEEP CURRENT  A  SCHEDULE  OF
 SUCH EMERGENCY COSTS AND EXPENSES LIKELY TO BE INCURRED OR EXPENDED AS A
 RESULT  OF  SUCH  AN  ALCOHOL  OR  CONTROLLED SUBSTANCE RELATED ACCIDENT
 SETTING FORTH THE COST AND VALUE OF TIME AND SERVICES, AS WELL AS  MATE-
 RIALS, PROVIDED IN EMERGENCY SITUATIONS AS CONTEMPLATED BY THIS ARTICLE.
   §  796-G.  ATTORNEY'S FEES, COURT COSTS AND EXPENSES; RECOVERY. IN ANY
 TRIAL OR ANY CIVIL ACTION OR PROCEEDING ARISING IN  THE  ENFORCEMENT  OF
 ANY  LOCAL  LAW  OR  ORDINANCE  PASSED PURSUANT HERETO, THE MUNICIPALITY
 INVOLVED SHALL BE ENTITLED TO RECOVER  ALL  COURT  COSTS,  EXPENSES  AND
 ATTORNEY'S  FEES INCURRED BY  SUCH MUNICIPALITY IN SUCH DISPUTE AND SUCH
 RIGHT SHALL INCLUDE ALL OF SUCH  COSTS,  EXPENSES  AND  ATTORNEY'S  FEES
 THROUGH ALL APPEALS OR OTHER ACTIONS.
   §   796-H.  SEVERABILITY.  IF  ANY  SECTION,  SUBDIVISION,  PARAGRAPH,
 SENTENCE, CLAUSE, PHRASE OR PORTION OF THIS ARTICLE IS  FOR  ANY  REASON
 HELD INVALID OR UNCONSTITUTIONAL BY ANY COURT OF COMPETENT JURISDICTION,
 SUCH  PORTION  SHALL  BE  DEEMED  A  SEPARATE,  DISTINCT AND INDEPENDENT
 PROVISION AND SUCH HOLDING SHALL NOT AFFECT THE VALIDITY OF THE  REMAIN-
 ING PORTIONS OF THIS ARTICLE.
   § 2.  This act shall take effect immediately.