LBD09304-01-1
S. 4141 2
more than one hundred eighty days in a penitentiary or county jail or by
both such fine and imprisonment.
(b) Operating a BICYCLE OR bicycle with electric assist while intoxi-
cated; per se. No person shall operate a BICYCLE OR bicycle with elec-
tric assist while such person has .08 of one per centum or more by
weight of alcohol in the person's blood as shown by chemical analysis of
such person's blood, breath, urine or saliva, made pursuant to the
provisions of subdivision five of this section.
(c) Operating a BICYCLE OR bicycle with electric assist while intoxi-
cated. No person shall operate a BICYCLE OR bicycle with electric assist
while in an intoxicated condition.
(d) Operating a BICYCLE OR bicycle with electric assist while ability
impaired by drugs. No person shall operate a BICYCLE OR bicycle with
electric assist while the person's ability to operate such bicycle or
bicycle with electric assist is impaired by the use of a drug as defined
in this chapter.
(e) Operating a BICYCLE OR bicycle with electric assist while ability
impaired by the combined influence of drugs or of alcohol and any drug
or drugs. No person shall operate a BICYCLE OR bicycle with electric
assist while the person's ability to operate such BICYCLE OR bicycle
with electric assist is impaired by the combined influence of drugs or
of alcohol and any drug or drugs.
(f) Penalty. (i) A violation of paragraph (b), (c), (d) or (e) of this
subdivision shall be a misdemeanor and shall be punishable by a fine of
not more than 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) A person who operates a BICYCLE OR bicycle with electric assist
in violation of paragraph (b), (c), (d) or (e) of this subdivision after
having been convicted of a violation of paragraph (b), (c), (d) or (e)
of this subdivision within the preceding ten years shall be guilty of a
class E felony, and shall be punished by a fine of not more than one
thousand dollars or by a period of imprisonment as provided in the penal
law, or by both such fine and imprisonment.
(iii) A person who operates a BICYCLE OR bicycle with electric assist
in violation of paragraph (b), (c), (d) or (e) of this subdivision after
having been convicted of a violation of paragraph (b), (c), (d) or (e)
of this subdivision two or more times within the preceding ten years
shall be guilty of a class E felony, and shall be punished by a fine of
not more than four thousand dollars or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment.
2. Certain sentences prohibited. Notwithstanding any provisions of the
penal law, no judge or magistrate shall impose a sentence of uncondi-
tional discharge for a violation of paragraph (b), (c), (d) or (e) of
subdivision one of this section.
3. Sentencing; previous convictions. When sentencing a person for a
violation of paragraph (b), (c), (d) or (e) of subdivision one of this
section pursuant to subparagraph (ii) of paragraph (f) of subdivision
one of this section, the court shall consider any prior convictions the
person may have for a violation of subdivision two, two-a, three, four,
or four-a of section eleven hundred ninety-two of this title within the
preceding ten years. When sentencing a person for a violation of para-
graph (b), (c), (d) or (e) of subdivision one of this section pursuant
to subparagraph (iii) of paragraph (f) of subdivision one of this
section, the court shall consider any prior convictions the person may
have for a violation of subdivision two, two-a, three, four, or four-a
S. 4141 3
of section eleven hundred ninety-two of this title within the preceding
ten years. When sentencing a person for a violation of subparagraph (ii)
of paragraph (a) of subdivision one of this section, the court shall
consider any prior convictions the person may have for a violation of
any subdivision of section eleven hundred ninety-two of this title with-
in the preceding five years. When sentencing a person for a violation of
subparagraph (iii) of paragraph (a) of subdivision one of this section,
the court shall consider any prior convictions the person may have for a
violation of any subdivision of section eleven hundred ninety-two of
this title within the preceding ten years.
4. 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 any paragraph of subdivision one of this section, if such violation
is coupled with an accident or collision in which such person is
involved, which in fact had 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. For the purposes of
this subdivision, police officer shall also include a peace officer
authorized to enforce this chapter when the alleged violation consti-
tutes a crime.
(b) Field testing. Every person operating a BICYCLE OR bicycle with
electric assist which has been involved in an accident shall, at the
request of a police officer, submit to a breath test to be administered
by the police officer. If such test indicates that such operator has
consumed alcohol, the police officer may request such operator to submit
to a chemical test in the manner set forth in subdivision five of this
section.
5. Chemical tests; when authorized. A police officer may request any
person who operates a bicycle or bicycle with electric assist in this
state to 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 such person's blood, provided that such
test is administered at the direction 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: (a) having
reasonable grounds to believe such person to have been operating in
violation of paragraph (a), (b), (c), (d) or (e) of subdivision one of
this section and within two hours after such person has been placed
under arrest for any such violation; or (b) within two hours after a
breath test, as provided in paragraph (b) of subdivision four of this
section, indicates that alcohol has been consumed by such person and in
accordance with the rules and regulations established by the police
force of which the officer is a member.
6. Testing procedures. (a) Persons authorized to withdraw blood; immu-
nity; testimony. (i) At the request of a police officer, the following
persons may withdraw blood for the purpose of determining the alcoholic
or drug content therein: (A) a physician, a registered professional
nurse, a registered physician assistant, a certified nurse practitioner,
or an advanced emergency medical technician as certified by the depart-
ment of health; or (B) under the supervision and at the direction of a
physician, registered physician assistant or certified nurse practition-
er acting within his or her lawful scope of practice, or upon the
express consent of the person eighteen years of age or older from whom
such blood is to be withdrawn: a clinical laboratory technician or clin-
ical laboratory technologist licensed pursuant to article one hundred
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sixty-five of the education law; a phlebotomist; or a medical laboratory
technician or medical technologist employed by a clinical laboratory
approved under title five of article five of the public health law. This
limitation shall not apply to the taking of a urine, saliva or breath
specimen.
(ii) No person entitled to withdraw blood pursuant to subparagraph (i)
of this paragraph or hospital employing such person, and no other
employer of such person shall be sued or held liable for any act done or
omitted in the course of withdrawing blood at the request of a police
officer pursuant to this section.
(iii) Any person who may have a cause of action arising from the with-
drawal of blood as aforesaid, for which no personal liability exists
under subparagraph (ii) of this paragraph, may maintain such action
against the state if any person entitled to withdraw blood pursuant to
this paragraph acted at the request of a police officer employed by the
state, or against the appropriate political subdivision of the state if
such person acted at the request of a police officer employed by a poli-
tical subdivision of the state. No action shall be maintained pursuant
to this subparagraph unless notice of claim is duly filed or served in
compliance with law.
(iv) Notwithstanding subparagraphs (i), (ii) and (iii) of this para-
graph, an action may be maintained by the state or a political subdivi-
sion thereof against a person entitled to withdraw blood pursuant to
subparagraph (i) of this paragraph or hospital employing such person for
whose act or omission the state or the political subdivision has been
held liable under this paragraph to recover damages, not exceeding the
amount awarded to the claimant, that may have been sustained by the
state or the political subdivision by reason of gross negligence or bad
faith on the part of such person.
(v) The testimony of any person other than a physician, entitled to
withdraw blood pursuant to subparagraph (i) of this paragraph, in
respect to any such withdrawal of blood made by such person may be
received in evidence with the same weight, force and effect as if such
withdrawal of blood were made by a physician.
(vi) The provisions of subparagraphs (ii), (iii) and (iv) of this
paragraph shall also apply with regard to any person employed by a
hospital as security personnel for any act done or omitted in the course
of withdrawing blood at the request of a police officer pursuant to this
section.
(b) Right to additional test. The person tested shall be permitted to
choose a physician to administer a chemical test in addition to the one
administered at the direction of the police officer.
(c) Rules and regulations. The department of health shall issue and
file rules and regulations approving satisfactory techniques or methods
of conducting chemical analyses of a person's blood, urine, breath or
saliva and to ascertain the qualifications and competence of individuals
to conduct and supervise chemical analyses of a person's blood, urine,
breath or saliva. If the analyses were made by an individual possessing
a permit issued by the department of health, this shall be presumptive
evidence that the examination was properly given. The provisions of this
paragraph do not prohibit the introduction as evidence of an analysis
made by an individual other than a person possessing a permit issued by
the department of health.
7. Chemical test evidence. (a) Admissibility. Upon the trial of any
such action or proceeding arising out of actions alleged to have been
committed by any person arrested for a violation of any paragraph of
S. 4141 5
subdivision one of this section, the court shall admit evidence of the
amount of alcohol or drugs in the defendant's blood as shown by a test
administered pursuant to the provisions of subdivision five of this
section.
(b) Probative value. The following effect shall be given to evidence
of blood-alcohol content, as determined by such tests, of a person
arrested for a violation of subdivision one of this section:
(i) evidence that there was .05 of one per centum or less by weight of
alcohol in such person's blood shall be prima facie evidence that the
ability of such person to operate a BICYCLE OR bicycle with electric
assist was not impaired by the consumption of alcohol, and that such
person was not in an intoxicated condition;
(ii) evidence that there was more than .05 of one per centum but less
than .07 of one per centum by weight of alcohol in such person's blood
shall be prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be relevant evidence, but shall not
be given prima facie effect, in determining whether the ability of such
person to operate a BICYCLE OR bicycle with electric assist was impaired
by the consumption of alcohol; and
(iii) evidence that there was .07 of one per centum or more but less
than .08 of one per centum by weight of alcohol in such person's blood
shall be prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be given prima facie effect in deter-
mining whether the ability of such person to operate BICYCLE OR bicycle
with electric assist was impaired by the consumption of alcohol.
8. Where applicable. The provisions of this section shall apply upon
public highways, private roads open to motor vehicle traffic, any other
parking lot, and sidewalks. For the purposes of this section "parking
lot" shall mean any area or areas of private property, including a
driveway, near or contiguous to and provided in connection with premises
and used as a means of access to and egress from a public highway to
such premises and having a capacity for the parking of four or more
motor vehicles. The provisions of this section shall not apply to any
area or areas of private property comprising all or part of property on
which is situated a one or two-family residence.
9. Enforcement upon crash. Notwithstanding any provision of this
section, no part of this section may be enforced unless in conjunction
with a crash involving an operator of a BICYCLE OR bicycle with electric
assist. For the purposes of this subdivision, "crash" shall mean
colliding with a vehicle, person, building or other object.
§ 2. This act shall take effect immediately.
