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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| Mar 28, 2025 |
print number 3981a |
| Mar 28, 2025 |
amend (t) and recommit to transportation |
| Jan 30, 2025 |
referred to transportation |
Assembly Bill A3981
2025-2026 Legislative Session
Relates to procedures relating to driving while ability impaired by drugs
download bill text pdfSponsored By
MAGNARELLI
Current Bill Status - In Assembly Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Bill Amendments
co-Sponsors
Steve Stern
Carrie Woerner
Marianne Buttenschon
Chris Burdick
Albert A. Stirpe
Karen McMahon
Jonathan Jacobson
Jeffrey Dinowitz
MaryJane Shimsky
Manny De Los Santos
Jo Anne Simon
Dana Levenberg
Sam Berger
Stacey Pheffer Amato
William Conrad
David McDonough
Charles Fall
Jen Lunsford
Maritza Davila
Billy Jones
Yudelka Tapia
Judy Griffin
John T. McDonald III
Kalman Yeger
William Colton
Phil Steck
Rebecca Kassay
Rebecca Seawright
2025-A3981 - Details
2025-A3981 - Summary
Alters the definition of "drug" in the vehicle and traffic law to include any substance or combination of substances that impair, to any extent, physical or mental abilities; defines impairment and intoxication; provides that refusal to submit to a breath test and/or oral/bodily fluid test shall be a traffic infraction; makes related provisions.
2025-A3981 - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
3981
2025-2026 Regular Sessions
I N A S S E M B L Y
January 30, 2025
___________
Introduced by M. of A. MAGNARELLI, STERN, WOERNER, BUTTENSCHON, BURDICK,
STIRPE, McMAHON, JACOBSON, DINOWITZ, SHIMSKY, DE LOS SANTOS, SIMON,
LEVENBERG, BERGER, PHEFFER AMATO, CONRAD, McDONOUGH, FALL, LUNSFORD,
DAVILA, JONES, TAPIA -- read once and referred to the Committee on
Transportation
AN ACT to amend the vehicle and traffic law, in relation to procedures
relating to driving while ability impaired by drugs
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 114-a of the vehicle and traffic law, as amended by
chapter 92 of the laws of 2021, is amended to read as follows:
§ 114-a. Drug. The term "drug" when used in this chapter, means and
includes any substance listed in section thirty-three hundred six of the
public health law and cannabis and concentrated cannabis as defined in
section 222.00 of the penal law AND ANY SUBSTANCE OR COMBINATION OF
SUBSTANCES THAT IMPAIR, TO ANY EXTENT, PHYSICAL OR MENTAL ABILITIES.
§ 2. Section 119-b of the vehicle and traffic law is renumbered 119-c
and a new section 119-b is added to read as follows:
§ 119-B. IMPAIRED. IMPAIRMENT IS REACHED WHEN A DRIVER HAS VOLUNTARILY
CONSUMED OR INGESTED A SUBSTANCE OR COMBINATION OF SUBSTANCES TO THE
EXTENT THAT THE DRIVER HAS IMPAIRED, TO ANY EXTENT, THE PHYSICAL AND
MENTAL ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPER-
ATE A VEHICLE AS A REASONABLE AND PRUDENT DRIVER.
§ 3. The vehicle and traffic law is amended by adding a new section
120-a to read as follows:
§ 120-A. INTOXICATION. INTOXICATION IS A GREATER DEGREE OF IMPAIRMENT
WHICH IS REACHED WHEN A DRIVER HAS VOLUNTARILY CONSUMED OR INGESTED A
SUBSTANCE OR COMBINATION OF SUBSTANCES TO THE EXTENT THAT THE DRIVER IS
INCAPABLE, TO A SUBSTANTIAL EXTENT, OF EMPLOYING THE PHYSICAL AND MENTAL
ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPERATE A
VEHICLE AS A REASONABLE AND PRUDENT DRIVER.
§ 4. Subdivisions 1, 2 and 3 of section 1194 of the vehicle and traf-
fic law, as added by chapter 47 of the laws of 1988, paragraph (a) of
subdivision 2 as amended by chapter 196 of the laws of 1996, paragraphs
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00438-03-5
A. 3981 2
(b) and (c) of subdivision 2 as amended by chapter 489 of the laws of
2017, clause (A) of subparagraph 1, subparagraphs 2 and 3 of paragraph
(b), subparagraphs 1, 2 and 3 of paragraph (c) of subdivision 2 as
amended by chapter 27 of the laws of 2018, 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 subparagraph 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 ORAL/BODILY FLUID TEST to be admin-
istered by the police officer. If such test indicates that such operator
has consumed alcohol OR A DRUG OR DRUGS, the police officer may request
such operator to submit to a chemical test AND/OR AN EVALUATION
CONDUCTED BY A DRUG RECOGNITION EXPERT in the manner set forth in subdi-
vision two of this section.
(C) REFUSAL TO SUBMIT TO A BREATH TEST AND/OR ORAL/BODILY FLUID TEST
PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION SHALL BE A TRAFFIC INFRAC-
TION.
2. Chemical tests AND DRUG RECOGNITION EVALUATIONS. (a) When author-
ized. Any person who operates a motor vehicle in this state shall be
deemed to have given consent to AN EVALUATION CONDUCTED BY A CERTIFIED
DRUG RECOGNITION EXPERT, AND/OR a chemical test of one or more of the
following: breath, blood, urine, or [saliva] ORAL/BODILY FLUID, for the
purpose of determining the alcoholic and/or drug content [of the blood]
provided that such test is administered by or at the direction of a
police officer with respect to a chemical test of breath, urine or
[saliva] ORAL/BODILY FLUID 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, as provided in paragraph (b)
of subdivision one 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;
(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-
A. 3981 3
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
AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT is
authorized pursuant to this paragraph may be temporarily detained by the
police solely for the purpose of requesting or administering such chemi-
cal test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION
EXPERT 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.
(A-1) FOR THE PURPOSES OF THIS SECTION THE DRIVER SHALL NOT BE DEEMED
TO CONSENT TO ANSWER CUSTODIAL QUESTIONS AS PART OF AN EVALUATION
CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT PURSUANT TO PARAGRAPH
(A) OF THIS SUBDIVISION AND DECLINING TO ANSWER SUCH QUESTIONS SHALL NOT
CONSTITUTE A REFUSAL TO SUBMIT TO THE EVALUATION WHEN THE DRIVER SUBMITS
TO THE OTHER PORTIONS OF SUCH EVALUATION AND NO REPORT OF REFUSAL SHALL
BE MADE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION AND THE DRIVER'S
LICENSE SHALL NOT BE REVOKED PURSUANT TO PARAGRAPHS (C) AND (D) OF THIS
SUBDIVISION SOLELY ON THE BASIS OF THE DRIVER DECLINING TO ANSWER SUCH
CUSTODIAL QUESTIONS.
(b) Report of refusal. (1) If: (A) such person having been placed
under arrest; or (B) after a breath AND/OR ORAL/BODILY FLUID test indi-
cates the presence of alcohol AND/OR A DRUG OR DRUGS 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 oper-
ating a motor vehicle after having consumed alcohol in violation of
section eleven hundred ninety-two-a of this article; and having there-
after been requested to submit to such chemical test AND/OR AN EVALU-
ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT and having been
informed that the person's license or permit to drive and any non-resi-
dent 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, AND/OR
AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 been
granted pursuant to subdivision three of this section,] AND/OR AN EVALU-
ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION
THEREOF 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 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
A. 3981 4
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] OR AN EVALUATION
CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF.
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 subdi-
vision, 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 subse-
quent proceedings with regard to refusal to submit to such chemical test
AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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
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
A. 3981 5
portion thereof AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG
RECOGNITION EXPERT OR ANY PORTION THEREOF, would result in the immediate
suspension and subsequent revocation of such person's license or operat-
ing 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 AND/OR AN EVALUATION
CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF.
A REFUSAL TO ANSWER CUSTODIAL QUESTIONS SHALL NOT BE CONSIDERED A
REFUSAL FOR THE PURPOSES OF THIS SECTION PURSUANT TO PARAGRAPH (A-1) OF
THIS SUBDIVISION. If, after such hearing, the hearing officer, acting on
behalf of the commissioner, finds on any one of said issues in the nega-
tive, 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG
RECOGNITION EXPERT OR ANY PORTION THEREOF, or has been convicted of or
found to be in violation of any subdivision of section eleven hundred
ninety-two or section eleven 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 find-
ing that a person under the age of twenty-one has refused to submit to a
chemical test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOG-
NITION EXPERT OR ANY PORTION THEREOF pursuant to subdivision three of
section eleven hundred ninety-four-a of this article 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 suspen-
sion 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
A. 3981 6
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
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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED
DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF, 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 commissioner, but shall not be restored for at
least three years after such revocation, nor thereafter, except in the
discretion of the commissioner, if the holder of such license was oper-
ating a commercial motor vehicle transporting hazardous materials at the
time of such refusal. However, such person shall be permanently disqual-
ified from operating a commercial motor vehicle in any case where the
holder has a prior finding of refusal to submit to a chemical test
AND/OR AN EVALUATION THEREOF CONDUCTED BY A CERTIFIED DRUG RECOGNITION
EXPERT OR ANY PORTION THEREOF 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED
DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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 chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED
DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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
A. 3981 7
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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG
RECOGNITION EXPERT OR ANY PORTION THEREOF 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 AND/OR AN EVALUATION CONDUCTED BY A CERTI-
FIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF pursuant to this
section while operating a commercial motor vehicle or 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 penal-
ty 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 OR AN EVALUATION CONDUCTED BY A DRUG RECOGNITION
EXPERT OR ANY PORTION THEREOF shall be admissible in any trial, proceed-
ing or hearing based upon a violation of the provisions of section elev-
en 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. EVIDENCE OF A REFUSAL SHALL BE ADMISSIBLE PURSUANT TO THIS
SECTION REGARDLESS OF THE TIME OF 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] ORAL/BODILY FLUIDS, for the purpose of determining the alco-
holic and/or drug content of the blood OR ORAL/BODILY FLUIDS 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,
A. 3981 8
requests and obtains a court order to compel a person to submit to a
chemical test to determine the alcoholic [or] AND/OR drug content of the
person's blood OR ORAL/BODILY FLUIDS 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] THE MOTOR VEHICLE WAS INVOLVED IN A CRASH; OR PERSONAL INJURY
HAS BEEN CAUSED TO ANOTHER PERSON, DUE TO AN INCIDENT INVOLVING THE
MOTOR VEHICLE OPERATED BY SUCH PERSON OR SUCH PERSON HAS A PREVIOUS
CONVICTION FOR A VIOLATION OF ANY SUBDIVISION OF SECTION ELEVEN HUNDRED
NINETY-TWO OF THIS ARTICLE; 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 AND/OR ORAL/BODILY FLUID test administered by a
police officer in accordance with paragraph (b) of subdivision one of
this section indicates that alcohol AND/OR A DRUG OR DRUGS has been
consumed by such person; 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG
RECOGNITION EXPERT, or any portion thereof, requested in accordance with
the provisions of paragraph (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 an open container containing an alcoholic beverage AND/OR A DRUG OR
DRUGS in or around the vehicle driven by the operator; THE ODOR OF
CANNABIS OR BURNT CANNABIS; any other evidence surrounding the circum-
stances of the incident which indicates that the operator has been oper-
ating 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]
A. 3981 9
THE MOTOR VEHICLE WAS INVOLVED IN A CRASH; OR PERSONAL INJURY HAS BEEN
CAUSED TO ANOTHER PERSON, DUE TO AN INCIDENT INVOLVING THE MOTOR VEHICLE
OPERATED BY SUCH PERSON AND/OR SUCH PERSON HAS A PREVIOUS ARREST FOR A
VIOLATION OF ANY SUBDIVISION OF SECTION ELEVEN HUNDRED NINETY-TWO OF
THIS ARTICLE; and, based upon the totality of circumstances, there is
reasonable cause to believe that such person was operating a motor vehi-
cle 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.
(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
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] SUCH ACCUSED'S blood [and]
AND/OR ORAL/BODILY FLUIDS AND ordering the withdrawal of a blood AND/OR
ORAL/BODILY FLUID 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 AND/OR ORAL/BODILY FLUID must be administered. The provisions of
paragraphs (a), (b) and (c) of subdivision four of this section shall be
applicable to any chemical test administered pursuant to this section.
A. 3981 10
§ 5. The subparagraph heading and clauses a and b of subparagraph 7 of
paragraph (e) of subdivision 2 of section 1193 of the vehicle and traf-
fic law, the subparagraph heading as added by chapter 312 of the laws of
1994, clause a as amended by chapter 732 of the laws of 2006, and clause
b as separately amended by chapters 3 and 571 of the laws of 2002, are
amended to read as follows:
Suspension pending prosecution; excessive blood alcohol content OR
IMPAIRMENT BY A DRUG OR DRUGS. a. Except as provided in clause a-1 of
this subparagraph, a court shall suspend a driver's license, pending
prosecution, of any person charged with a violation of subdivision two,
two-a, three, FOUR or four-a of section eleven hundred ninety-two of
this article who, at the time of arrest, is alleged to have had .08 of
one percent or more by weight of alcohol in such driver's blood OR IS
ALLEGED TO HAVE BEEN IMPAIRED BY THE INGESTION OF A DRUG OR DRUGS as
shown by chemical analysis of blood, breath, urine or [saliva]
ORAL/BODILY FLUID, OR BY AN EVALUATION CONDUCTED BY A CERTIFIED DRUG
RECOGNITION EXPERT, OR ANY PORTION THEREOF, made pursuant to subdivision
two or three of section eleven hundred ninety-four of this article, OR
THE DRIVER MAKES A STATEMENT ADMITTING TO DRIVING WHILE INTOXICATED BY
ALCOHOL OR WHILE IMPAIRED BY A DRUG OR DRUGS.
b. The suspension occurring under clause a of this subparagraph shall
occur no later than at the conclusion of all proceedings required for
the arraignment and the suspension occurring under clause a-1 of this
subparagraph shall occur immediately after the holder's first appearance
before the court on the charge which shall, whenever possible, be the
next regularly scheduled session of the court after the arrest or at the
conclusion of all proceedings required for the arraignment; provided,
however, that if the results of any test administered pursuant to
section eleven hundred ninety-four of this article are not available
within such time period, the complainant police officer or other public
servant shall transmit such results to the court at the time they become
available, and the court shall, as soon as practicable following the
receipt of such results and in compliance with the requirements of this
subparagraph, suspend such license. In order for the court to impose
such suspension it must find that the accusatory instrument conforms to
the requirements of section 100.40 of the criminal procedure law and
there exists reasonable cause to believe either that (a) the holder
operated a motor vehicle while such holder had .08 of one percent or
more by weight of alcohol OR WAS IMPAIRED BY THE INGESTION OF A DRUG OR
DRUGS in [his or her] SUCH HOLDER'S blood as was shown by chemical anal-
ysis of such person's blood, breath, urine or [saliva] ORAL/BODILY
FLUID, OR BY AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION
EXPERT, OR ANY PORTION THEREOF, made pursuant to the provisions of
section eleven hundred ninety-four of this article or THE DRIVER MAKES A
STATEMENT ADMITTING TO DRIVING WHILE INTOXICATED BY ALCOHOL OR WHILE
IMPAIRED BY A DRUG OR DRUGS; OR (b) the person was the holder of a class
DJ or MJ learner's permit or a class DJ or MJ driver's license and oper-
ated a motor vehicle while such holder was in violation of subdivision
one, two and/or three of section eleven hundred ninety-two of this arti-
cle. At the time of such license suspension the holder shall be entitled
to an opportunity to make a statement regarding these two issues and to
present evidence tending to rebut the court's findings.
§ 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.
co-Sponsors
Steve Stern
Carrie Woerner
Marianne Buttenschon
Chris Burdick
Albert A. Stirpe
Karen McMahon
Jonathan Jacobson
Jeffrey Dinowitz
MaryJane Shimsky
Manny De Los Santos
Jo Anne Simon
Dana Levenberg
Sam Berger
Stacey Pheffer Amato
William Conrad
David McDonough
Charles Fall
Jen Lunsford
Maritza Davila
Billy Jones
Yudelka Tapia
Judy Griffin
John T. McDonald III
Kalman Yeger
William Colton
Phil Steck
Rebecca Kassay
Rebecca Seawright
Tommy Schiavoni
Kwani O'Pharrow
Khaleel Anderson
Donna Lupardo
Paula Kay
Harry B. Bronson
Sarah Clark
Phara Souffrant Forrest
Steven Otis
Aron Wieder
Patrick J. Carroll
Didi Barrett
Christopher Eachus
Amy Paulin
Micah Lasher
Charles Lavine
Emerita Torres
Robert C. Carroll
George Alvarez
Steven Raga
Nily Rozic
Angelo Santabarbara
Al Taylor
Nader Sayegh
David Weprin
Brian Cunningham
John Zaccaro Jr.
2025-A3981A (ACTIVE) - Details
2025-A3981A (ACTIVE) - Summary
Alters the definition of "drug" in the vehicle and traffic law to include any substance or combination of substances that impair, to any extent, physical or mental abilities; defines impairment and intoxication; provides that refusal to submit to a breath test and/or oral/bodily fluid test shall be a traffic infraction; makes related provisions.
2025-A3981A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
3981--A
2025-2026 Regular Sessions
I N A S S E M B L Y
January 30, 2025
___________
Introduced by M. of A. MAGNARELLI, STERN, WOERNER, BUTTENSCHON, BURDICK,
STIRPE, McMAHON, JACOBSON, DINOWITZ, SHIMSKY, DE LOS SANTOS, SIMON,
LEVENBERG, BERGER, PHEFFER AMATO, CONRAD, McDONOUGH, FALL, LUNSFORD,
DAVILA, JONES, TAPIA, GRIFFIN, McDONALD, YEGER, COLTON, STECK, KASSAY,
SEAWRIGHT, SCHIAVONI -- read once and referred to the Committee on
Transportation -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the vehicle and traffic law, in relation to procedures
relating to driving while ability impaired by drugs; and providing for
the repeal of such provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 114-a of the vehicle and traffic law, as amended by
chapter 92 of the laws of 2021, is amended to read as follows:
§ 114-a. Drug. The term "drug" when used in this chapter, means and
includes any substance listed in section thirty-three hundred six of the
public health law and cannabis and concentrated cannabis as defined in
section 222.00 of the penal law AND ANY SUBSTANCE OR COMBINATION OF
SUBSTANCES THAT IMPAIR, TO ANY EXTENT, PHYSICAL OR MENTAL ABILITIES.
§ 2. Section 119-b of the vehicle and traffic law is renumbered 119-c
and a new section 119-b is added to read as follows:
§ 119-B. IMPAIRED. IMPAIRMENT IS REACHED WHEN A DRIVER HAS VOLUNTARILY
CONSUMED OR INGESTED A SUBSTANCE OR COMBINATION OF SUBSTANCES TO THE
EXTENT THAT THE DRIVER HAS IMPAIRED, TO ANY EXTENT, THE PHYSICAL AND
MENTAL ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPER-
ATE A VEHICLE AS A REASONABLE AND PRUDENT DRIVER.
§ 3. The vehicle and traffic law is amended by adding a new section
120-a to read as follows:
§ 120-A. INTOXICATION. INTOXICATION IS A GREATER DEGREE OF IMPAIRMENT
WHICH IS REACHED WHEN A DRIVER HAS VOLUNTARILY CONSUMED OR INGESTED A
SUBSTANCE OR COMBINATION OF SUBSTANCES TO THE EXTENT THAT THE DRIVER IS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00438-06-5
A. 3981--A 2 INCAPABLE, TO A SUBSTANTIAL EXTENT, OF EMPLOYING THE PHYSICAL AND MENTAL ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPERATE A VEHICLE AS A REASONABLE AND PRUDENT DRIVER. § 4. Subdivisions 1, 2 and 3 of section 1194 of the vehicle and traf- fic law, as added by chapter 47 of the laws of 1988, paragraph (a) of subdivision 2 as amended by chapter 196 of the laws of 1996, paragraphs (b) and (c) of subdivision 2 as amended by chapter 489 of the laws of 2017, clause (A) of subparagraph 1, subparagraphs 2 and 3 of paragraph (b) and subparagraphs 1, 2 and 3 of paragraph (c) of subdivision 2 as amended by chapter 27 of the laws of 2018, 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 subparagraph 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 ORAL/BODILY FLUID TEST to be admin- istered by the police officer. If such test indicates that such operator has consumed alcohol OR A DRUG OR DRUGS, the police officer may request such operator to submit to a chemical test AND/OR AN EVALUATION CONDUCTED BY A DRUG RECOGNITION EXPERT in the manner set forth in subdi- vision two of this section. (C) REFUSAL TO SUBMIT TO A BREATH TEST AND/OR ORAL/BODILY FLUID TEST PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION SHALL BE A TRAFFIC INFRAC- TION. 2. Chemical tests AND DRUG RECOGNITION EVALUATIONS. (a) When author- ized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, AND/OR a chemical test of one or more of the following: breath, blood, urine, or [saliva] ORAL/BODILY FLUID, for the purpose of determining the alcoholic and/or drug content [of the blood] provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or [saliva] ORAL/BODILY FLUID 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, as provided in paragraph (b) of subdivision one 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; A. 3981--A 3 (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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT is authorized pursuant to this paragraph may be temporarily detained by the police solely for the purpose of requesting or administering such chemi- cal test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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. (A-1) FOR THE PURPOSES OF THIS SECTION THE DRIVER SHALL NOT BE DEEMED TO CONSENT TO ANSWER CUSTODIAL QUESTIONS AS PART OF AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION AND DECLINING TO ANSWER SUCH QUESTIONS SHALL NOT CONSTITUTE A REFUSAL TO SUBMIT TO THE EVALUATION WHEN THE DRIVER SUBMITS TO THE OTHER PORTIONS OF SUCH EVALUATION AND NO REPORT OF REFUSAL SHALL BE MADE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION AND THE DRIVER'S LICENSE SHALL NOT BE REVOKED PURSUANT TO PARAGRAPHS (C) AND (D) OF THIS SUBDIVISION SOLELY ON THE BASIS OF THE DRIVER DECLINING TO ANSWER SUCH CUSTODIAL QUESTIONS. (b) Report of refusal. (1) If: (A) such person having been placed under arrest; or (B) after a breath AND/OR ORAL/BODILY FLUID test indi- cates the presence of alcohol AND/OR A DRUG OR DRUGS 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 oper- ating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article; and having there- after been requested to submit to such chemical test AND/OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT and having been informed that the person's license or permit to drive and any non-resi- dent 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, AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 been granted pursuant to subdivision three of this section,] AND/OR AN EVALU- A. 3981--A 4 ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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 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] OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF. 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 subdi- vision, 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 subse- quent proceedings with regard to refusal to submit to such chemical test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 A. 3981--A 5 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 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF, would result in the immediate suspension and subsequent revocation of such person's license or operat- ing 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF. A REFUSAL TO ANSWER CUSTODIAL QUESTIONS SHALL NOT BE CONSIDERED A REFUSAL FOR THE PURPOSES OF THIS SECTION PURSUANT TO PARAGRAPH (A-1) OF THIS SUBDIVISION. If, after such hearing, the hearing officer, acting on behalf of the commissioner, finds on any one of said issues in the nega- tive, 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF, or has been convicted of or found to be in violation of any subdivision of section eleven hundred ninety-two or section eleven 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 find- ing that a person under the age of twenty-one has refused to submit to a chemical test AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOG- NITION EXPERT OR ANY PORTION THEREOF pursuant to subdivision three of section eleven hundred ninety-four-a of this article 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 suspen- sion 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. A. 3981--A 6 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 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF, 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 commissioner, but shall not be restored for at least three years after such revocation, nor thereafter, except in the discretion of the commissioner, if the holder of such license was oper- ating a commercial motor vehicle transporting hazardous materials at the time of such refusal. However, such person shall be permanently disqual- ified from operating a commercial motor vehicle in any case where the holder has a prior finding of refusal to submit to a chemical test AND/OR AN EVALUATION THEREOF CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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 chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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- A. 3981--A 7 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF 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 AND/OR AN EVALUATION CONDUCTED BY A CERTI- FIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF pursuant to this section while operating a commercial motor vehicle or 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 penal- ty 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 OR AN EVALUATION CONDUCTED BY A DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF shall be admissible in any trial, proceed- ing or hearing based upon a violation of the provisions of section elev- en 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. EVIDENCE OF A REFUSAL SHALL BE ADMISSIBLE PURSUANT TO THIS SECTION REGARDLESS OF THE TIME OF 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] ORAL/BODILY FLUIDS, for the purpose of determining the alco- A. 3981--A 8 holic and/or drug content of the blood OR ORAL/BODILY FLUIDS 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] AND/OR drug content of the person's blood OR ORAL/BODILY FLUIDS 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] THE MOTOR VEHICLE WAS INVOLVED IN A CRASH; OR PERSONAL INJURY HAS BEEN CAUSED TO ANOTHER PERSON, DUE TO AN INCIDENT INVOLVING THE MOTOR VEHICLE OPERATED BY SUCH PERSON OR SUCH PERSON HAS A PREVIOUS CONVICTION FOR A VIOLATION OF ANY SUBDIVISION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE; 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 AND/OR ORAL/BODILY FLUID test administered by a police officer in accordance with paragraph (b) of subdivision one of this section indicates that alcohol AND/OR A DRUG OR DRUGS has been consumed by such person; 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 AND/OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, or any portion thereof, requested in accordance with the provisions of paragraph (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 an open container containing an alcoholic beverage AND/OR A DRUG OR DRUGS in or around the vehicle driven by the operator; any other evidence surrounding the circumstances of the incident which indicates 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 A. 3981--A 9 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] THE MOTOR VEHICLE WAS INVOLVED IN A CRASH; OR PERSONAL INJURY HAS BEEN CAUSED TO ANOTHER PERSON, DUE TO AN INCIDENT INVOLVING THE MOTOR VEHICLE OPERATED BY SUCH PERSON AND/OR SUCH PERSON HAS A PREVIOUS ARREST FOR A VIOLATION OF ANY SUBDIVISION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE; and, based upon the totality of circumstances, there is reasonable cause to believe that such person was operating a motor vehi- cle 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. (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 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] SUCH ACCUSED'S blood [and] AND/OR ORAL/BODILY FLUIDS AND ordering the withdrawal of a blood AND/OR ORAL/BODILY FLUID 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- A. 3981--A 10 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 AND/OR ORAL/BODILY FLUID must be administered. The provisions of paragraphs (a), (b) and (c) of subdivision four of this section shall be applicable to any chemical test administered pursuant to this section. § 5. The subparagraph heading and clauses a and b of subparagraph 7 of paragraph (e) of subdivision 2 of section 1193 of the vehicle and traf- fic law, the subparagraph heading as added by chapter 312 of the laws of 1994, clause a as amended by chapter 732 of the laws of 2006, and clause b as separately amended by chapters 3 and 571 of the laws of 2002, are amended to read as follows: Suspension pending prosecution; excessive blood alcohol content OR IMPAIRMENT BY A DRUG OR DRUGS. a. Except as provided in clause a-1 of this subparagraph, a court shall suspend a driver's license, pending prosecution, of any person charged with a violation of subdivision two, two-a, three, FOUR or four-a of section eleven hundred ninety-two of this article who, at the time of arrest, is alleged to have had .08 of one percent or more by weight of alcohol in such driver's blood OR IS ALLEGED TO HAVE BEEN IMPAIRED BY THE INGESTION OF A DRUG OR DRUGS as shown by chemical analysis of blood, breath, urine or [saliva] ORAL/BODILY FLUID, OR BY AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, OR ANY PORTION THEREOF, made pursuant to subdivision two or three of section eleven hundred ninety-four of this article, OR THE DRIVER MAKES A STATEMENT ADMITTING TO DRIVING WHILE INTOXICATED BY ALCOHOL OR WHILE IMPAIRED BY A DRUG OR DRUGS. b. The suspension occurring under clause a of this subparagraph shall occur no later than at the conclusion of all proceedings required for the arraignment and the suspension occurring under clause a-1 of this subparagraph shall occur immediately after the holder's first appearance before the court on the charge which shall, whenever possible, be the next regularly scheduled session of the court after the arrest or at the conclusion of all proceedings required for the arraignment; provided, however, that if the results of any test administered pursuant to section eleven hundred ninety-four of this article are not available within such time period, the complainant police officer or other public servant shall transmit such results to the court at the time they become available, and the court shall, as soon as practicable following the receipt of such results and in compliance with the requirements of this subparagraph, suspend such license. In order for the court to impose such suspension it must find that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and there exists reasonable cause to believe either that (a) the holder operated a motor vehicle while such holder had .08 of one percent or more by weight of alcohol OR WAS IMPAIRED BY THE INGESTION OF A DRUG OR DRUGS in [his or her] SUCH HOLDER'S blood as was shown by chemical anal- ysis of such person's blood, breath, urine or [saliva] ORAL/BODILY FLUID, OR BY AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, OR ANY PORTION THEREOF, made pursuant to the provisions of section eleven hundred ninety-four of this article or THE DRIVER MAKES A STATEMENT ADMITTING TO DRIVING WHILE INTOXICATED BY ALCOHOL OR WHILE IMPAIRED BY A DRUG OR DRUGS; OR (b) the person was the holder of a class DJ or MJ learner's permit or a class DJ or MJ driver's license and oper- ated a motor vehicle while such holder was in violation of subdivision A. 3981--A 11 one, two and/or three of section eleven hundred ninety-two of this arti- cle. At the time of such license suspension the holder shall be entitled to an opportunity to make a statement regarding these two issues and to present evidence tending to rebut the court's findings. § 6. Section 1192 of the vehicle and traffic law is amended by adding two new subdivisions 13 and 14 to read as follows: 13. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CHARGE UNDER SUBDIVISION FOUR OR FOUR-A OF THIS SECTION THAT THE OPERATOR SUFFERED AN ALLERGIC REACTION OR MEDICAL EMERGENCY RATHER THAN BEING IMPAIRED BY A SUBSTANCE OR COMBINATION OF SUBSTANCES. PROVIDED, HOWEVER, THAT NO DEFENSE SHALL BE AVAILABLE IF ANY SUCH CONSUMED OR INGESTED SUBSTANCE IS CONTAINED IN SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW. 14. THE COMMISSIONER AND THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL COLLECT DATA ON THE NUMBER OF TRAFFIC STOPS, ARRESTS AND CONVICTIONS FOR DRIVING UNDER THE INFLUENCE OF DRUGS OR COMBINATION OF DRUGS AND ALCOHOL UNDER SUBDIVISION FOUR OR FOUR-A OF THIS SECTION. IT SHALL REPORT THE NUMBER OF TRAFFIC STOPS, ARRESTS AND CONVICTIONS BY RACE, SEX, AGE AND NATIONAL ORIGIN AND PROVIDE AN ANNUAL REPORT TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY AND THE TEMPORARY PRESIDENT OF THE SENATE. § 7. 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 expire and be deemed repealed 5 years after such effective date.
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