Establishes an oral fluid task force to study and make recommendations on best practices for the testing of oral fluid to determine impairment due to drug intoxication while operating a motor vehicle in the state
download bill text pdf| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| May 22, 2025 |
referred to transportation |
Establishes an oral fluid task force to study and make recommendations on best practices for the testing of oral fluids to determine impairment due to drug intoxication while operating a motor vehicle in the state; replaces the word "saliva" with the term "oral fluid" and relates to the testing of oral fluids.
S T A T E O F N E W Y O R K
________________________________________________________________________
8599
2025-2026 Regular Sessions
I N A S S E M B L Y
May 22, 2025
___________
Introduced by M. of A. NORBER -- read once and referred to the Committee
on Transportation
AN ACT to establish an oral fluid task force to study and make recommen-
dations on best practices for the testing of oral fluid to determine
impairment due to drug intoxication while operating a motor vehicle in
the state of New York; and to amend the vehicle and traffic law, the
criminal procedure law, the environmental conservation law, the navi-
gation law, the parks, recreation and historic preservation law and
the penal law, in relation to the testing of oral fluids
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Oral fluid task force. 1. (a) A task force is hereby estab-
lished to study and make recommendations on best practices for the test-
ing of oral fluid to determine impairment due to drug intoxication while
operating a motor vehicle in the state of New York. For the purposes of
this task force, "testing of oral fluid" or "oral fluid test" shall mean
a standardized preliminary saliva analysis test validated by the
National Highway Traffic Safety Administration for the detection of
cannabis or other drugs. A field sobriety test shall be considered an
oral fluid test if such test is administered in substantial compliance
with the standards prescribed by the National Highway Traffic Safety
Administration.
(b) The task force shall study:
(i) the frequency of traffic stops where impairment due to drug intox-
ication is a central or contributing factor for the stop;
(ii) current law enforcement methodologies to determine drug intoxica-
tion, including but not limited to any devices that have the ability to
determine the level of impairment and type of drug consumed;
(iii) the feasibility of expanding drug recognition expert training
for all law enforcement agencies and personnel involved in traffic
enforcement in the state of New York; and
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13046-01-5
A. 8599 2 (iv) the feasibility of mandating drug recognition expert training for all law enforcement agencies and personnel involved in traffic enforce- ment in the state of New York. (c) No later than one year after the effective date of this section, the task force shall report its findings to the governor, the temporary president of the senate, the minority leader of the senate, the speaker of the assembly, and the minority leader of the assembly. 2. (a) The task force shall be comprised of the commissioner of the department of motor vehicles or their designee, the commissioner of the department of transportation or their designee, the commissioner of the department of health or their designee, the executive director of the office of cannabis management or their designee, the superintendent of the state police or their designee, the chairperson of the New York state STOP-DWI Foundation or their designee, and the commissioner of the division of criminal justice services or their designee. (b) One member of the task force shall serve as chairperson of the task force. (c) The members of the task force shall receive no compensation for their services, but shall be allowed their actual and necessary expenses incurred in the performance of their services. (d) All departments, divisions, bureaus, commissions, districts or agencies of the state or any political subdivisions thereof shall, at the request of the chairperson, or head of such entity provide the task force with such staff, facilities, assistance and data as will enable the task force to carry out its powers and duties. § 2. Section 114-a of the vehicle and traffic law, as amended by chap- ter 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 PHYSICAL OR MENTAL ABILITIES TO ANY EXTENT. § 3. The vehicle and traffic law is amended by adding two new sections 119-c and 120-a to read as follows: § 119-C. IMPAIRED. IMPAIRMENT IS REACHED WHEN A DRIVER HAS CONSUMED OR INGESTED A SUBSTANCE OR COMBINATION OF SUBSTANCES TO THE EXTENT THAT THE DRIVER HAS IMPAIRED, TO ANY EXTENT, THE PHYSICAL AND/OR MENTAL ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPERATE A VEHICLE AS A REASONABLE AND PRUDENT PERSON. § 120-A. INTOXICATION. INTOXICATION IS A GREATER DEGREE OF IMPAIRMENT WHICH IS REACHED WHEN A DRIVER HAS 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/OR MENTAL ABILITIES WHICH A DRIVER IS EXPECTED TO POSSESS IN ORDER TO OPERATE A VEHICLE AS A REASONABLE AND PRUDENT PERSON. § 4. Subdivision 2, paragraph (a) of subdivision 2-a, and subdivisions 5 and 6 of section 1192 of the vehicle and traffic law, subdivision 2 as amended by chapter 3 of the laws of 2002, paragraph (a) of subdivision 2-a as amended by chapter 496 of the laws of 2009, and subdivisions 5 and 6 as amended by chapter 236 of the laws of 2003, are amended to read as follows: 2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood OR IS IMPAIRED BY THE INGESTION OF A DRUG OR DRUGS as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID, OR BY AN EVALUATION CONDUCTED BY A CERTI- A. 8599 3 FIED DRUG RECOGNITION EXPERT, OR ANY PORTION THEREOF, made pursuant to the provisions of section eleven hundred ninety-four of this article. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood OR IS IMPAIRED BY THE INGESTION OF A DRUG OR DRUGS as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL 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. 5. Commercial motor vehicles: per se - level I. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL 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; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a chemical analysis of such person's blood, breath, urine, or [saliva] ORAL 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, indicates that such operator has .02 of one per centum or more but less than .04 of one per centum by weight of alcohol in such operator's blood OR WAS IMPAIRED BY THE INGES- TION OF A DRUG OR DRUGS. 6. Commercial motor vehicles; per se - level II. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has more than .06 of one per centum but less than .08 of one per centum by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL 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; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section. § 5. Section 1192-a of the vehicle and traffic law, as added by chap- ter 196 of the laws of 1996, is amended to read as follows: § 1192-a. Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se. No person under the age of twenty- one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, as shown by chem- ical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID, made pursuant to the provisions of section eleven hundred nine- ty-four of this article. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety-two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred nine- A. 8599 4 ty-four-a of this article. Except as otherwise provided in subdivision five of section eleven hundred ninety-two of this article, this section shall not apply to a person who operates a commercial motor vehicle. Notwithstanding any provision of law to the contrary, a finding that a person under the age of twenty-one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense. § 6. Clause (a), the opening paragraph of clause (b), and item (i) of clause (e) of subparagraph 12 of paragraph b of subdivision 2 of section 1193 of the vehicle and traffic law, as added by chapter 732 of the laws of 2006, are amended to read as follows: (a) Notwithstanding any other provision of this chapter to the contra- ry, whenever a revocation is imposed upon a person for the refusal to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to the provisions of section eleven hundred ninety-four of this article or conviction for any violation of section eleven hundred ninety-two of this article for which a sentence of impri- sonment may be imposed, and such person has: (i) within the previous four years been twice convicted of any provisions of section eleven hundred ninety-two of this article or a violation of the penal law for which a violation of such section eleven hundred ninety-two is an essen- tial element and at least one such conviction was for a crime, or has twice been found to have refused to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety-four of this article, or has any combina- tion of two such convictions and findings of refusal not arising out of the same incident; or (ii) within the previous eight years been convicted three times of any provision of section eleven hundred nine- ty-two of this article for which a sentence of imprisonment may be imposed or a violation of the penal law for which a violation of such section eleven hundred ninety-two is an essential element and at least two such convictions were for crimes, or has been found, on three sepa- rate occasions, to have refused to submit to a chemical test OR AN EVAL- UATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety-four of this article, or has any combina- tion of such convictions and findings of refusal not arising out of the same incident, such revocation shall be permanent. The permanent driver's license revocation required by clause (a) of this subparagraph shall be waived by the commissioner after a period of five years has expired since the imposition of such permanent revoca- tion, provided that during such five-year period such person has not been found to have refused a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety-four of this article while operating a motor vehicle and has not been convicted of a violation of any subdivision of section eleven hundred ninety-two of this article or section five hundred eleven of this chapter or a violation of the penal law for which a violation of any subdivision of such section eleven hundred ninety-two is an essen- tial element and either: (i) that during such eight-year period such person has not been found to have refused a chemical test OR AN EVALUATION CONDUCTED BY A CERTI- FIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety- four of this article while operating a motor vehicle and has not been convicted of a violation of any subdivision of section eleven hundred ninety-two of this article or section five hundred eleven of this chap- ter or a violation of the penal law for which a violation of any such A. 8599 5 subdivisions of such section eleven hundred ninety-two is an essential element; and § 7. The opening paragraph and item (i) of clause b of subparagraph 3 of paragraph (e) of subdivision 2 of section 1193 of the vehicle and traffic law, as amended by section 17 of part E of chapter 60 of the laws of 2005, are amended to read as follows: Any person who holds a commercial driver's license and is convicted of a violation of any subdivision of section eleven hundred ninety-two of this article who has had a prior finding of refusal to submit to a chem- ical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety-four of this article or has had 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 chap- ter; 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, shall be permanently disqualified from operating a commercial motor vehicle. The commissioner may waive such disqualification and prohibition hereinbefore provided after a period of ten years has expired from such sentence 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 pursuant to section eleven hundred ninety-four of this article while operating a motor vehicle and has not been convicted of any one of the following offenses while operating a motor vehicle: 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; § 8. 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, 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 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 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 ALCO- HOL 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 A. 8599 6 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] THEIR blood as was shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL 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 operated a motor vehicle while such holder was in violation of subdivision one, two and/or three of section eleven hundred ninety-two of this article. 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 pres- ent evidence tending to rebut the court's findings. § 9. Section 1194 of the vehicle and traffic 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 subpara- graph 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, 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, and subparagraph 1 of paragraph (a) of subdivision 4 as amended by chapter 169 of the laws of 2010, is amended to read as follows: § 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest. Notwithstanding the provisions of section 140.10 of the criminal proce- dure law, a police officer may, without a warrant, arrest a person, in case of a violation of subdivision one of section eleven hundred nine- ty-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 ORAL FLUID TEST to be administered 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 AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT in the manner set forth in subdivision two of this section. A. 8599 7 (C) REFUSAL TO SUBMIT TO A BREATH TEST OR ORAL FLUID TEST PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION SHALL BE A TRAFFIC INFRACTION, SUBJECT TO PENALTIES AS DEFINED IN SECTION EIGHTEEN HUNDRED OF THIS CHAPTER. 2. Chemical tests AND CERTIFIED DRUG RECOGNITION EVALUATIONS. (a) When authorized. 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 a chemical test of one or more of the following: breath, blood, urine, or [saliva] ORAL FLUID, for the purpose of determining the alcoholic and/or drug content [of the blood] WITHIN SUCH PERSON'S BODY, 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 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 OR ORAL FLUID TEST, as provided in paragraph (b) of subdivision one of this section, indicates that alcohol [has] OR A DRUG OR DRUGS HAVE 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- 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 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 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. (b) Report of refusal. (1) If: (A) such person having been placed under arrest; or (B) after a breath OR ORAL FLUID test indicates the presence of alcohol 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 reason- able grounds to believe that such person has been operating a motor vehicle after having consumed alcohol in violation of section eleven A. 8599 8 hundred ninety-two-a of this article; and having thereafter been requested to submit to such chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT and having been informed that the person's license or permit to drive and any non-resident operating priv- ilege 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, 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] OR AN EVALUATION 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 punish- able 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 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, A. 8599 9 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 portion thereof, OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNI- TION 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, OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT OR ANY PORTION THEREOF. If, after such hearing, the hearing officer, acting on behalf of the commis- sioner, finds on any one of said issues in the negative, 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 consti- tute 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOG- NITION 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 A. 8599 10 the date of such revocation; provided, however, a prior finding that a person under the age of twenty-one has refused to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION 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 suspension or revoca- tion 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 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 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 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 A. 8599 11 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 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOG- NITION 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED 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 penalty 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 prop- erty 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 AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of section eleven hundred nine- ty-two of this article but only upon a showing that the person was given A. 8599 12 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 AND CERTIFIED DRUG RECOGNITION EVALU- ATIONS. (a) Court ordered chemical tests AND CERTIFIED DRUG RECOGNITION EVALUATIONS. 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT of one or more of the following: breath, blood, urine or [saliva] ORAL FLUIDS, for the purpose of determining the alco- holic and/or drug content of the blood OR ORAL FLUIDS when a court order for such chemical test OR CERTIFIED DRUG RECOGNITION EVALUATION 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 AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT or any portion thereof as described above, the test OR EVALUATION 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 proce- dure law, requests and obtains a court order to compel a person to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT to determine the alcoholic or drug content of the person's blood OR ORAL 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; 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 OR ORAL FLUID test administered by a police officer in accordance with paragraph (b) of subdivision one of this section indicates that alcohol 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 AN EVALU- ATION CONDUCTED BY A RECOGNITION EXPERT, or any portion thereof, requested in accordance with the provisions of paragraph (a) of subdivi- sion two of this section or is unable to give consent to such a test OR EVALUATION. (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 OR A DRUG OR DRUGS A. 8599 13 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 inci- dent. (d) Court order; procedure. (1) An application for a court order to compel submission to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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, 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 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 AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, or any portion thereof, in accordance with the provisions of this section or is unable to give consent to such a test OR EVALUATION 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 longhand notes. If a voice recording device is used or a stenographic record made, the judge must have the record transcribed, certify to the accuracy 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 A. 8599 14 order requiring the accused to submit to a chemical test OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT to determine the alcoholic and/or drug content of [his] THEIR blood [and] OR ORAL FLUIDS AND ordering the withdrawal of a blood OR ORAL FLUID sample in accord- ance with the provisions of paragraph (a) of subdivision four of this section. When a judge or justice determines to issue an order to compel submission to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 OR CERTIFIED DRUG RECOGNITION EVALUATION. An order issued pursuant to the provisions of this subdivision shall require that a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT to determine the alco- holic and/or drug content of the operator's blood OR ORAL FLUID must be administered. The provisions of paragraphs (a), (b) and (c) of subdivi- sion four of this section shall be applicable to any chemical test OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT administered pursuant to this section. 4. Testing procedures. (a) Persons authorized to withdraw blood; immu- nity; testimony. (1) At the request of a police officer, the following persons may withdraw blood for the purpose of determining the alcoholic or drug content therein: (i) 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 (ii) under the supervision and at the direction of a physician, registered physician assistant or certified nurse practition- er acting within [his or her] THEIR 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 clinical laboratory technologist licensed pursuant to article one hundred 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] ORAL FLUID or breath specimen. (2) No person entitled to withdraw blood pursuant to subparagraph one 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. (3) 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 two of this paragraph, may maintain such action against the state if any person entitled to withdraw blood pursuant to A. 8599 15 paragraph (a) hereof 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 political 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. (4) Notwithstanding the foregoing provisions of this paragraph an action may be maintained by the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to subparagraph one 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. (5) The testimony of any person other than a physician, entitled to withdraw blood pursuant to subparagraph one 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. (6) The provisions of subparagraphs two, three and four of this para- graph 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 with- drawing blood at the request of a police officer pursuant to a court order in accordance with subdivision three of 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] ORAL FLUID and to ascertain the qualifications and competence of individuals to conduct and supervise chemical analyses of a person's blood, urine, breath or [saliva] ORAL FLUID. 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. § 10. Paragraph (a) of subdivision 1 of section 1194-a of the vehicle and traffic law, as added by chapter 196 of the laws of 1996, is amended to read as follows: (a) Whenever a chemical test of the breath, blood, urine or [saliva] ORAL FLUID of an operator who is under the age of twenty-one indicates that such person has operated a motor vehicle in violation of section eleven hundred ninety-two-a of this article, and such person is not charged with violating any subdivision of section eleven hundred nine- ty-two arising out of the same incident, the police officer who adminis- tered the test shall forward a report of the results of such test to the department within twenty-four hours of the time when such results are available in a manner prescribed by the commissioner, and the operator shall be given a hearing notice as provided in subdivision one-a of this section, to appear before a hearing officer in the county where the chemical test was administered, or in an adjoining county under such circumstances as prescribed by the commissioner, on a date to be estab- lished in accordance with a schedule promulgated by the commissioner. A. 8599 16 Such hearing shall occur within thirty days of, but not less than forty-eight hours from, the date that the chemical test was adminis- tered, provided, however, where the commissioner determines, based upon the availability of hearing officers and the anticipated volume of hear- ings at a particular location, that the scheduling of such hearing with- in thirty days would impair the timely scheduling or conducting of other hearings pursuant to this chapter, such hearing shall be scheduled at the next hearing date for such particular location. When providing the operator with such hearing notice, the police officer shall also give to the operator, and shall, prior to the commencement of the hearing, provide to the department, copies of the following reports, documents and materials: any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the oper- ator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity. The report of the police officer shall 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 verification of the report. § 11. Subdivision 2 of section 1198-a of the vehicle and traffic law, as amended by chapter 496 of the laws of 2009, is amended to read as follows: 2. Procedure. (a) Mandatory screening; when authorized. Upon the arraignment of, or at the discretion of the court, prior to the sentenc- ing of any person who (i) at arraignment is charged with or prior to sentencing convicted of a first violation of operating a motor vehicle in violation of subdivision one, two or three or paragraph (b) of subdi- vision two-a of section eleven hundred ninety-two of this article while such person has less than .15 of one per centum by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL 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 in violation of subdivision four of such section eleven hundred nine- ty-two, or (ii) has refused to submit to a chemical test OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety-four of this article, the court shall order such person to submit to screening for alcohol or substance abuse and depend- ency using a standardized written screening instrument developed by the office of [alcoholism and substance abuse services] ADDICTION SERVICES AND SUPPORTS, to be administered by an alcohol or substance abuse professional. (b) Mandatory assessment; when authorized. The court shall order a defendant to undergo a formal alcohol or substance abuse and dependency assessment by an alcohol or substance abuse professional or a licensed agency: (i) when the screening required by paragraph (a) of this subdi- vision indicates that a defendant is abusing or dependent upon alcohol or drugs; (ii) following the arraignment of any person charged with or, at the discretion of the court, prior to the sentencing of any person convicted of a violation of subdivision one, two, three, four or four-a of section eleven hundred ninety-two of this article after having been A. 8599 17 convicted of a violation of any subdivision of section eleven hundred ninety-two of this article or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 of the penal law or of aggravated vehicular assault, as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 of the penal law or of aggravated vehicular homicide, as defined in section 125.14 of such law within the preceding five years or after having been convicted of a violation of any subdivision of such section or of vehic- ular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 of the penal law or of aggravated vehicular assault, as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 of the penal law or of aggravated vehicular homicide, as defined in section 125.14 of such law, two or more times within the preceding ten years; or (iii) following the arraignment of any person charged with or, at the discretion of the court, prior to the sentencing of any person convicted of operating a motor vehicle in violation of subdivision two or three or paragraph (b) of subdivision two-a of section eleven hundred ninety-two of this article while such person has .15 of one per centum or more by weight of alcohol in the person's blood as shown by a chemical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID made pursuant to the provisions of section eleven hundred ninety-four of this article or in violation of paragraph (a) of subdivision two-a of section eleven hundred ninety-two of this article. (c) Mandatory assessment; procedure. The assessment ordered by a court pursuant to this section shall be performed by an alcohol or substance abuse professional or a licensed agency which shall forward the results, in writing, to the court and to the defendant or [his or her] THEIR counsel within thirty days of the date of such order. § 12. Paragraph (b) of subdivision 1 of section 1242-a of the vehicle and traffic law, as added by section 9 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: (b) Operating a bicycle with electric assist while intoxicated; per se. No person shall operate a bicycle with electric 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] ORAL FLUID, made pursuant to the provisions of subdivision five of this section. § 13. Paragraph (b) of subdivision 4 of section 1242-a of the vehicle and traffic law, as added by section 9 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: (b) Field testing. Every person operating a bicycle with electric assist which has been involved in an accident shall, at the request of a police officer, submit to a breath TEST OR ORAL 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT in the manner set forth in subdivi- sion five of this section. § 14. Subdivision 5 of section 1242-a of the vehicle and traffic law, as added by section 9 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: 5. Chemical tests AND DRUG RECOGNITION EVALUATIONS; when authorized. A police officer may request any person who operates a bicycle with elec- A. 8599 18 tric assist in this state to consent to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT of one or more of the following: breath, blood, urine, or [saliva] ORAL FLUID, 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] ORAL FLUID or, with respect to a chemical test of blood, at the direc- tion 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 OR ORAL FLUID TEST, as provided in paragraph (b) of subdivision four of this section, indicates that alco- hol [has] OR A DRUG OR DRUGS HAVE 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. § 15. Subparagraph (i) of paragraph (a) and paragraph (c) of subdivi- sion 6 of section 1242-a of the vehicle and traffic law, as added by section 9 of part XX of chapter 58 of the laws of 2020, are amended to read as follows: (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 department of health; or (B) under the supervision and at the direction of a physi- cian, registered physician assistant or certified nurse practitioner acting within [his or her] THEIR 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 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] ORAL FLUID or breath specimen. (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] ORAL FLUID and to ascertain the qualifications and competence of individuals to conduct and supervise chemical analyses of a person's blood, urine, breath or [saliva] ORAL FLUID. 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. § 16. Subdivision 7 of section 1242-a of the vehicle and traffic law, as added by section 9 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: 7. Chemical test AND DRUG RECOGNITION EVALUATION evidence. (a) Admis- sibility. 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 subdivision one of this section, the court shall admit evidence of the amount of alcohol or drugs in the defend- ant's blood as shown by a test administered OR EVALUATION CONDUCTED BY A A. 8599 19 CERTIFIED DRUG RECOGNITION EXPERT pursuant to the provisions of subdivi- sion 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 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 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 a bicycle with electric assist was impaired by the consumption of alcohol. § 17. Paragraph (b) of subdivision 1 of section 1289 of the vehicle and traffic law, as added by section 10 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: (b) Operating an electric scooter while intoxicated; per se. No person shall operate an electric scooter 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] ORAL FLUID, made pursuant to the provisions of subdivision five of this section. § 18. Paragraph (b) of subdivision 4 of section 1289 of the vehicle and traffic law, as added by section 10 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: (b) Field testing. Every person operating an electric scooter which has been involved in an accident shall, at the request of a police offi- cer, submit to a breath TEST OR ORAL FLUID test to be administered 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT in the manner set forth in subdivision five of this section. § 19. Subdivision 5 of section 1289 of the vehicle and traffic law, as added by section 10 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: 5. Chemical tests AND DRUG RECOGNITION EVALUATIONS; when authorized. A police officer may request any person who operates an electric scooter in this state to consent to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT of one or more of the following: breath, blood, urine, or [saliva] ORAL FLUID, for the purpose of deter- mining 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] ORAL FLUID or, with respect to a chemical test of blood, at the direc- tion of a police officer: (a) having reasonable grounds to believe such A. 8599 20 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 OR ORAL FLUID TEST, as provided in paragraph (b) of subdivision four of this section, indicates that alco- hol [has] OR A DRUG OR DRUGS HAVE 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. § 20. Subparagraph (i) of paragraph (a) and paragraph (c) of subdivi- sion 6 of section 1289 of the vehicle and traffic law, as added by section 10 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: (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 department of health; or (B) under the supervision and at the direction of a physi- cian, registered physician assistant or certified nurse practitioner acting within [his or her] THEIR 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 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] ORAL FLUID or breath specimen. (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] ORAL FLUID and to ascertain the qualifications and competence of individuals to conduct and supervise chemical analyses of a person's blood, urine, breath or [saliva] ORAL FLUID. 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. § 21. Subdivision 7 of section 1289 of the vehicle and traffic law, as added by section 10 of part XX of chapter 58 of the laws of 2020, is amended to read as follows: 7. Chemical test AND DRUG RECOGNITION EVALUATION evidence. (a) Admis- sibility. 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 subdivision one of this section, the court shall admit evidence of the amount of alcohol or drugs in the defend- ant's blood as shown by a test administered OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to the provisions of subdivi- sion 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 an electric scooter was not impaired A. 8599 21 by the consumption of alcohol, and that such person was not in an intox- icated 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 an electric scooter 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 an electric scooter was impaired by the consumption of alcohol. § 22. Paragraph (s) of subdivision 1 of section 245.20 of the criminal procedure law, as added by section 2 of part LLL of chapter 59 of the laws of 2019, is amended to read as follows: (s) In any prosecution alleging a violation of the vehicle and traffic law, where the defendant is charged by indictment, superior court infor- mation, prosecutor's information, information, or simplified informa- tion, all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scien- tific tests, EVALUATIONS and experiments, including but not limited to any test of a person's breath, blood, urine or [saliva] ORAL FLUID, for the period of six months prior and six months after such test, EVALU- ATION OR EXPERIMENT was conducted, including the records of gas chroma- tography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument. The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test, EVALUATION OR EXPERIMENT was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date. § 23. Subdivision 2 of section 11-1201 of the environmental conserva- tion law, as amended by chapter 388 of the laws of 2019, is amended to read as follows: 2. "Intoxicated condition" shall mean the presence of .08 of one per centum or more by weight of alcohol in a person's blood as shown by chemical analyses of [his] SUCH PERSON'S blood, breath, urine, or [sali- va] ORAL FLUID made pursuant to section 11-1205 of this title. An "impaired condition" shall mean a state of impairment of a person's capacity to think or act correctly, or of a loss, even in part of a person's control of [his] THEIR physical or mental faculties due to [his] THEIR consumption of alcohol or use of a drug. § 24. Subdivisions 2, 3, 4, 5 and 6 of section 11-1205 of the environ- mental conservation law, as added by chapter 726 of the laws of 1977, subdivisions 3, 4 and 5 as amended by section 29 of part R of chapter 58 of the laws of 2013, are amended to read as follows: 2. Any person engaged in hunting in this state shall be deemed to have given [his] THEIR consent to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT of [his] SUCH PERSON'S breath, blood, urine, or [saliva] ORAL FLUID for the purpose of determining the alcoholic or drug content of [his] SUCH PERSON'S blood, provided that such test OR EVALUATION is administered at the direction of a police A. 8599 22 officer or officer of the department of environmental conservation: (a) having reasonable grounds to believe such person to have been engaged in hunting in violation of any subdivision of section 11-1203 of this title, 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 OR ORAL FLUID TEST, administered pursuant to the provisions of subdivision one of this section, indicates that [alchohol has] ALCOHOL OR A DRUG OR DRUGS HAVE been consumed by such person, and in accordance with the rules and regulations established by the law enforcement unit of which the administering officer is a member. 3. If such person, having been placed under arrest or after a breath TEST OR ORAL FLUID test indicates the presence of alcohol OR A DRUG OR DRUGS in [his] SUCH PERSON'S system and having thereafter been requested to submit to A chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, refuses to submit to such chemical test OR EVALUATION, the test OR EVALUATION shall not be given, and a report of such refusal shall be forwarded by the officer under whose direction the test was requested to the department of environmental conservation with- in seventy-two hours and the department shall revoke all licenses, bowhunting privileges, muzzle-loading privileges, and permits to hunt which such person may possess; provided, however, that such revocation shall become effective only after a hearing held by the department upon notice to such person, unless such hearing is waived by such person. 4. A license, bowhunting privilege, muzzle-loading privilege, or permit to hunt may, upon the basis of a report, verified as hereinafter provided, of the administering officer that [he] THEY had reasonable grounds to believe such person to have been engaged in conduct in violation of any subdivision of section 11-1203 of this title and that said person had refused to submit to such test OR EVALUATION, be tempo- rarily suspended without notice pending the determination upon any such hearing. 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 signature of the deponent shall constitute a verification of the report. 5. No license, bowhunting privilege, muzzle-loading privilege, or permit to hunt shall be revoked because of a refusal to submit to such chemical test OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT if the hearing officer is satisfied that the person requested to submit to such chemical test OR EVALUATION had not been warned prior to such refusal to the effect that a refusal to submit to such chemical test OR EVALUATION may result in the revocation of such license, bowhunting privilege, muzzle-loading privilege, or permit to hunt wheth- er or not [he is] THEY ARE found guilty of the charge for which [he has] THEY HAVE been arrested. 6. The department of health shall issue and file rules and regulations approving satisfactory techniques or methods, to ascertain the quali- fications and competence of individuals to conduct and supervise chemi- cal analyses of a person's blood, urine, breath or [saliva] ORAL FLUID. 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 subdivision do not prohibit the introduction as evidence of an analysis made by an individual other than a person possessing a permit issued by the depart- ment of health. A. 8599 23 § 25. Paragraphs (b) and (c) of subdivision 2 of section 49-a of the navigation law, as amended by chapter 151 of the laws of 2006, are amended to read as follows: (b) No such person shall operate a vessel other than a public vessel while [he has] THEY HAVE .08 of one per centum or more by weight of alcohol in [his] SUCH PERSON'S blood, breath, urine, or [saliva] ORAL FLUID, as determined by the chemical test OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT made pursuant to the provisions of subdivision seven of this section. (c) No such person shall operate a public vessel while [he has] THEY HAVE .04 of one per centum or more by weight of alcohol in [his] SUCH PERSON'S blood, breath, urine, or [saliva] ORAL FLUID, as determined by the chemical test OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNI- TION EXPERT made pursuant to the provisions of subdivision seven of this section. § 26. Paragraph (b) of subdivision 6 of section 49-a of the navigation law, as added by chapter 805 of the laws of 1992, is amended to read as follows: (b) Breath TEST OR ORAL FLUID test for operators of vessel. Every person operating a vessel on the waters of the state which has been involved in an accident or which is operated in violation of any of the provisions of this section which regulate the manner in which a vessel is to be properly operated while underway shall, at the request of a police officer, submit to a breath TEST OR ORAL 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 OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT in the manner set forth in subdivision seven of this section. For the purposes of this section, a vessel is being "operated" only when such vessel is underway and is being propelled in whole or in part by mechanical power. § 27. Subdivisions 7, 8, 9 and 10 of section 49-a of the navigation law, as added by chapter 805 of the laws of 1992, paragraph (a) of subdivision 7 as amended by chapter 688 of the laws of 2022, subpara- graph 1 of paragraph (d) of subdivision 7 as amended by chapter 391 of the laws of 1998, subparagraph 2 of paragraph (d) of subdivision 7 as amended by chapter 309 of the laws of 1996, and subparagraphs 2 and 3 of paragraph (b) of subdivision 10 as amended by chapter 458 of the laws of 2003, are amended to read as follows: 7. Chemical tests AND CERTIFIED DRUG RECOGNITION EVALUATIONS. (a) Any person who operates a vessel on the waters of the state shall be requested to consent to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT of one or more of the following: breath, blood, urine, or [saliva] ORAL FLUID for the purpose of deter- mining the alcoholic or drug content of [his] SUCH PERSON'S blood, provided that such test OR EVALUATION is administered at the direction of a police officer: (1) having reasonable cause to believe such person to have been operating in violation of this subdivision or paragraph (a), (b), (c), (d), (e) or (e-1) of subdivision two of this section and within two hours after such person has been placed under arrest for any such violation or (2) within two hours after a breath TEST OR ORAL FLUID test as provided in paragraph (b) of subdivision six of this section indicates that alcohol [has] OR A DRUG OR DRUGS HAVE 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. 8599 24 (b) If such person having been placed under arrest or after a breath TEST OR ORAL FLUID test indicates the presence of alcohol OR A DRUG OR DRUGS in the person's system and having thereafter been requested to submit to such chemical test OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT and having been informed that the person's privilege to operate a vessel shall be immediately suspended for refusal to submit to such chemical test OR EVALUATION or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested, refuses to submit to such chemical test OR EVALUATION or any portion thereof, unless a court order has been granted pursuant to subdivision eight of this section, the test OR EVALUATION 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. The report of the police officer shall set forth reasonable grounds to believe such arrested person to have been operating a vessel in violation of any paragraph of subdivision two of this section, that said person had refused to submit to such chemical test OR EVALUATION, and that no chemical test was administered OR EVALU- ATION CONDUCTED pursuant to the requirements of subdivision eight of this section. The report shall be presented to the court upon the arraignment of the arrested person. The privilege to operate a vessel shall, upon the basis of such written report, be temporarily suspended by the court without notice pending the determination of a hearing as provided herein. Copies of such report must be transmitted by the court to the commissioner of parks, recreation and historic preservation and the commissioner of motor vehicles and such transmittal may not be waived even with the consent of all the parties. Such report shall be forwarded to each commissioner within forty-eight hours of such arraign- ment. The court shall provide such person with a hearing date schedule, a waiver form, and such other information as may be required by the commissioner of motor vehicles. If a hearing, as provided for in para- graph (c) of this subdivision, is waived by such person, the commission- er of motor vehicles shall immediately suspend the privilege to operate a vessel, as of the date of receipt of such waiver in accordance with the provisions of paragraph (d) of this subdivision. (c) Any person whose privilege to operate a vessel has been suspended pursuant to paragraph (b) of this subdivision is entitled to a hearing in accordance with a hearing schedule to be promulgated by the commis- sioner of motor vehicles. If the department fails to provide for such hearing fifteen days after the date of the arraignment of the arrested person, the privilege to operate a vessel of such person shall be rein- stated pending a hearing pursuant to this section. The hearing shall be limited to the following issues: (1) did the police officer have reason- able cause to believe that such person had been operating a vessel in violation of any paragraph of subdivision two of this section; (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 EVALUATION or any portion thereof, would result in the immediate suspen- sion of such person's privilege to operate a vessel 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 EVALUATION A. 8599 25 or any portion thereof. If, after such hearing, the hearing officer, acting on behalf of the commissioner of motor vehicles, finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal. If, after such hear- ing, the hearing officer, acting on behalf of the commissioner of motor vehicles finds all of the issues in the affirmative, such officer shall immediately suspend the privilege to operate a vessel in accordance with the provisions of paragraph (d) of this subdivision. A person who has had the privilege to operate a vessel suspended pursuant to this subdi- vision may appeal the findings of the hearing officer in accordance with the provisions of article three-A of the vehicle and traffic law. 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 waiv- er of such hearing, provided, however, that such person may petition the commissioner of motor vehicles for a new hearing which shall be held as soon as practicable. (d) (1) Any privilege to operate a vessel which has been suspended pursuant to paragraph (c) of this subdivision shall not be restored for six months after such suspension. However, no such privilege shall be restored for at least one year after such suspension in any case where the person was under the age of twenty-one at the time of the offense, has had a prior suspension resulting from refusal to submit to a chemi- cal test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to this subdivision or subdivision six of section forty-nine-b of this article, or has been convicted of a violation of any paragraph of subdivision two of this section not arising out of the same incident, within the five years immediately preceding the date of such suspension; provided, however, a prior finding that a person under the age of twenty-one has refused to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to such subdivision six of section forty-nine-b of this article shall have the same effect as a prior finding of a refusal pursuant to this subdi- vision solely for the purpose of determining the length of any suspen- sion 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 the vehicle and traffic law. Notwithstanding any provision of this paragraph to the contrary, any privilege to operate a vessel which has been suspended pursuant to paragraph (c) of this subdivision, where the person was under the age of twenty-one at the time of the refusal, and such person under the age of twenty-one has a prior finding, conviction or youthful offender adjudication resulting from a violation of this section or section forty-nine-b of this article, not arising from the same incident, 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. (2) Any person whose privilege to operate a vessel is suspended pursu- ant to the provisions of this subdivision shall also be liable for a civil penalty in the amount of two hundred dollars except that if such suspension is a second or subsequent suspension pursuant to this subdi- vision issued within a five year period, or such person has been convicted of a violation of any paragraph of subdivision two of this section within the past five years not arising out of the same incident, the civil penalty shall be in the amount of five hundred dollars. The privilege to operate a vessel shall not be restored to such person A. 8599 26 unless such penalty has been paid. The first one hundred dollars of each penalty collected by the department of motor vehicles pursuant to the provisions of this subdivision shall be paid to the commissioner of motor vehicles for deposit to the general fund and the remainder of all such penalties shall be paid to the commissioner of parks, recreation and historic preservation for deposit in the "I Love NY Waterways" boat- ing safety fund established pursuant to section ninety-seven-nn of the state finance law. (e) The commissioner of motor vehicles in consultation with the commissioner of parks, recreation and historic preservation shall promulgate such rules and regulations as may be necessary to effectuate the provisions of this subdivision. (f) Evidence of a refusal to submit to such chemical test OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT shall be admissi- ble in any trial, proceeding or hearing based upon a violation of the provisions of this section, 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 [his or her] THEIR refusal. (g) Upon the request of the person tested OR EVALUATED, the results of such test OR EVALUATION shall be made available to [him or her] SUCH PERSON. 8. Compulsory chemical tests AND CERTIFIED DRUG RECOGNITION EVALU- ATIONS. (a) Notwithstanding the provisions of subdivision seven of this section, no person who operates a vessel in the waters of this state may refuse to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT of one or more of the following: breath, blood, urine or [saliva] ORAL FLUID, for the purpose of deter- mining the alcoholic and/or drug content of the blood when a court order for such chemical test OR EVALUATION has been issued in accordance with the provisions of this subdivision. (b) Upon refusal by any person to submit to a chemical test OR EVALU- ATION or any portion thereof as described in paragraph (a) of this subdivision, the test OR EVALUATION 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 OR EVALUATION to determine the alcoholic or drug content of the person's blood OR ORAL FLUID upon a finding of reasonable cause to believe that: (1) such person was the operator of a vessel and in the course of such operation a person other than the operator was killed or suffered seri- ous physical injury as defined in section 10.00 of the penal law; and (2) (i) either such person operated the vessel in violation of any paragraph of subdivision two of this section, or (ii) a breath TEST OR ORAL FLUID test administered by a police officer in accordance with subdivision six of this section indicates that alco- hol [has] OR A DRUG OR DRUGS HAVE 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 AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT or any portion thereof, requested in accordance with the provisions of subdivision seven of this section or is unable to give consent to such a test OR EVALUATION. (c) For the purpose of this subdivision "reasonable cause" shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was A. 8599 27 operating a vessel in violation of any paragraph of subdivision two of this section. Such circumstances may include, but are not limited to: evidence that the operator was operating a vessel in violation of any provision of this chapter which regulates the manner in which a vessel is to be properly operated while underway at the time of the incident; any visible indication of alcohol or drug consumption or impairment by the operator; any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a vessel while impaired by the consumption of alcohol or drugs or was intoxicated at the time of the incident. (d) (1) An application for a court order to compel submission to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 incident 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 tele- phone, 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 OR EVALUATION was requested was the operator of a vessel and in the course of such opera- tion a person, other than the operator, has been killed or seriously injured and, based upon the totality of circumstances, there is reason- able cause to believe that such person was operating a vessel in violation of any paragraph of subdivision two of this section and, after being placed under lawful arrest such person refused to submit to a chemical test OR EVALUATION or any portion thereof, in accordance with the provisions of this section or is unable to give consent to such a test OR EVALUATION 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 longhand notes. If a voice recording device is used or a stenographic record made, the judge must have the record transcribed, certify to the accuracy 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 OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT to determine the A. 8599 28 alcoholic and/or drug content of [his] SUCH PERSON'S blood and ordering the withdrawal of a blood sample in accordance with the provisions of subdivision nine of this section. When a judge or justice determines to issue an order to compel submission to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT based on an oral appli- cation, 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. (e) An order issued pursuant to the provisions of this subdivision shall require that a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT to determine the alcoholic and/or drug content of the operator's blood must be administered. The provisions of paragraphs (a), (b) and (c) of subdivision nine of this section shall be applicable to any chemical test OR EVALUATION administered pursuant to this section. (f) A defendant who has been compelled to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to the provisions of this subdivision may move for the suppression of such evidence in accordance with article seven hundred ten of the crimi- nal procedure law on the grounds that the order was obtained and the test administered OR EVALUATION CONDUCTED in violation of the provisions of this subdivision or any other applicable law. 9. Testing procedures. (a) At the request of a police officer, the following persons may withdraw blood for the purpose of determining the alcohol or drug content therein: (1) a physician, a registered profes- sional nurse or a registered physician's assistant; or (2) under the supervision and at the direction of a physician: a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health, 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] ORAL FLUID or breath specimen. (b) No person entitled to withdraw blood pursuant to paragraph (a) of this subdivision 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 or peace officer acting pursuant to [his] SUCH OFFICER'S special duties pursuant to this subdivision. (c) 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 paragraph (b) of this subdivision, may maintain such action against the state if the person entitled to withdraw blood pursuant to paragraph (a) of this subdivision acted at the request of a police offi- cer or peace officer acting pursuant to [his] SUCH OFFICER'S special duties, employed by the state, or against the appropriate political subdivision of the state if the person acted at the request of a police officer or peace officer acting pursuant to [his] SUCH OFFICER'S special duties, employed by a political subdivision of the state. No action A. 8599 29 shall be maintained pursuant to this paragraph unless notice of claim is duly filed or served in compliance with law. (d) Notwithstanding the foregoing provisions of this subdivision, an action may be maintained by the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to paragraph (a) of this subdivision or hospital employing such person for whose act or omission the state or the political subdivision has been held liable under this subdivision 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 on the part of such person entitled to withdraw blood. (e) The testimony of any person, other than a physician, entitled to draw blood pursuant to paragraph (a) of this subdivision in respect to any such withdrawal of blood made by [him] 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. (f) The provisions of paragraphs (b), (c) and (d) of this subdivision 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 with- drawing blood at the request of a police officer pursuant to a court order in accordance with this subdivision. (g) 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. 10. Chemical test AND DRUG RECOGNITION EVALUATION evidence. (a) 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 subdivision two 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 OR EVALUATION CONDUCTED pursuant to the provisions of subdivision seven or eight of this section. (b) 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 any paragraph of subdivision two of this section and who was operating a vessel other than a public vessel: (1) 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 vessel was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition. (2) evidence that there was more than .05 of one per centum but less than .07 of one per centum of weight in such person's blood shall be prima facie evidence that such person was not in an intoxicated condi- tion, but such evidence shall be relevant evidence but not be given prima facie effect, in determining whether the ability of such person to operate a vessel was impaired by the consumption of alcohol. (3) evidence that there was .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in [his] 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 determining whether the ability of such person to operate a vessel was impaired by the consumption of alcohol. (c) Evidence of a refusal to submit to a chemical test OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT or any portion thereof shall be admissible in any trial or hearing provided the request A. 8599 30 to submit to such a test OR EVALUATION was made in accordance with the provisions of subdivision seven of this section. § 28. Subdivision 1, paragraph (a) of subdivision 3, and paragraph (a) of subdivision 4 of section 49-b of the navigation law, as added by chapter 391 of the laws of 1998, are amended to read as follows: 1. Prohibition. No person under the age of twenty-one shall operate a vessel upon the waters of this state after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, as shown by chem- ical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID, made in accordance with the provisions of subdivision four of section eleven hundred ninety-four of the vehicle and traffic law. Any person who operates a vessel in violation of this section, and who is not charged with a violation of subdivision two of section forty-nine-a of this article arising out of the same incident shall be referred to the department of motor vehicles for action in accordance with the provisions of this section. Notwithstanding any provision of law to the contrary, a finding that a person under the age of twenty-one operated a vessel after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense. (a) Any person under the age of twenty-one who operates a vessel on the waters of the state shall be requested to consent to a chemical test of one or more of the following: breath, blood, urine, or [saliva] ORAL FLUID for the purpose of determining the alcoholic or drug content of [his] SUCH PERSON'S blood, provided that such test is administered at the direction of a police officer: (1) having reasonable grounds to believe such person to have been operating in violation of this section or paragraph (a), (b), (c), (d) or (e) of subdivision two of section forty-nine-a of this article and within two hours after such person has been placed under arrest, or detained pursuant to paragraph (c) of this subdivision, for any such violation or (2) within two hours after a breath test as provided in subdivision two 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 offi- cer is a member. (a) Whenever a chemical test of the breath, blood, urine or [saliva] ORAL FLUID of an operator who is under the age of twenty-one indicates that such person has operated a vessel in violation of this section, and such person is not charged with violating any subdivision of section forty-nine-a of this article arising out of the same incident, the police officer who administered the test shall forward a report of the results of such test to the department of motor vehicles within twenty- four hours of the time when such results are available in a manner prescribed by the commissioner of motor vehicles, and the operator shall be given a hearing notice as provided in subdivision five of this section, to appear before a hearing officer in the county where the chemical test was administered, or in an adjoining county under such circumstances as prescribed by the commissioner of motor vehicles, on a date to be established in accordance with a schedule promulgated by the commissioner of motor vehicles. Such hearing shall occur within thirty days of, but not less than forty-eight hours from, the date that the chemical test was administered, provided, however, where the commission- er of motor vehicles determines, based upon the availability of hearing officers and the anticipated volume of hearings at a particular A. 8599 31 location, that the scheduling of such hearing within thirty days would impair the timely scheduling or conducting of other hearings, such hear- ing shall be scheduled at the next hearing date for such particular location. When providing the operator with such hearing notice, the police officer shall also give to the operator, and shall, prior to the commencement of the hearing, provide to the department of motor vehi- cles, copies of the following reports, documents and materials: any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instru- ments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity. The report of the police officer shall 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 togeth- er with the subscription of the deponent shall constitute verification of the report. § 29. Paragraph (b) of subdivision 1 of section 25.24 of the parks, recreation and historic preservation law, as amended by chapter 311 of the laws of 2007, is amended to read as follows: (b) No such person shall operate a snowmobile upon a street, highway, public trails, lands, bodies of water, or private property of another while [he or she has] THEY HAVE .08 of one per centum or more by weight of alcohol in [his or her] SUCH PERSON'S blood, breath, urine, or [sali- va] ORAL FLUID, as determined by the chemical test OR EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT made pursuant to the provisions of subdivision six of this section. § 30. Subdivisions 5, 6, 7, 8 and 9 of section 25.24 of the parks, recreation and historic preservation law, as added by chapter 629 of the laws of 1998, paragraph (b) of subdivision 5, paragraph (a) of subdivi- sion 6 and paragraph (a) of subdivision 7 as amended by chapter 311 of the laws of 2007, and subparagraphs 2 and 3 of paragraph (b) of subdivi- sion 9 as amended by chapter 683 of the laws of 2003, are amended to read as follows: 5. Arrest and 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 para- graph 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 [he or she has] THEY HAVE reasonable cause to believe that the violation was committed by such person. For the purposes of this subdi- vision police officer shall also include a peace officer authorized to enforce the provisions of this chapter when the alleged violation constitutes a crime. (b) Breath TEST OR ORAL FLUID test for operators of a snowmobile. Every person operating a snowmobile upon a street, highway, public trails, lands, bodies of water, or private property of another which has been involved in an accident or which is operated in violation of any of the provisions of this chapter which regulate the manner in which a snowmobile is to be properly operated shall, at the request of a police officer, submit to a breath TEST OR ORAL FLUID test to be administered by the police officer. If such test indicates that such operator has A. 8599 32 consumed alcohol OR A DRUG OR DRUGS, the police officer may request such operator to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT in the manner set forth in subdivision six of this section. 6. Chemical tests AND DRUG RECOGNITION EVALUATIONS. (a) Any person who operates a snowmobile upon a street, highway, public trails, lands, bodies of water, or private property of another shall be requested to consent to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT of one or more of the following: breath, blood, urine or [saliva] ORAL FLUID for the purpose of determining the alcohol- ic or drug content of [his or her] SUCH PERSON'S blood, provided that such test OR EVALUATION is administered at the direction of a police officer: (1) having reasonable cause to believe such person to have been operating in violation of this subdivision or paragraph (a), (b), (c), or (d) of subdivision one of this section and within two hours after such person has been placed under arrest for any such violation or (2) within two hours after a breath test as provided in paragraph (b) of subdivision five 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. (b) If such person having been placed under arrest or after a breath test OR ORAL FLUID TEST indicates the presence of alcohol OR A DRUG OR DRUGS in the person's system and having thereafter been requested to submit to such chemical test OR EVALUATION and having been informed that the person's privilege to operate a snowmobile shall be immediately suspended for refusal to submit to such chemical test OR EVALUATION or any portion thereof, whether or not the person is found guilty of the charge for which such person is arrested, refuses to submit to such chemical test OR EVALUATION or any portion thereof, unless a court order has been granted pursuant to subdivision seven of this section, the test OR EVALUATION 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. The report of the police officer shall set forth reasonable grounds to believe such arrested person to have been operating a snowmo- bile in violation of any paragraph of subdivision one of this section, that such person had refused to submit to such chemical test OR EVALU- ATION, and that no chemical test was administered OR EVALUATION CONDUCTED pursuant to the requirements of subdivision seven of this section. The report shall be presented to the court upon the arraignment of the arrested person. The privilege to operate a snowmobile shall, upon the basis of such written report, be temporarily suspended by the court without notice pending the determination of a hearing as provided herein. Copies of such report must be transmitted by the court to the commissioner and the commissioner of motor vehicles and such transmittal may not be waived even with the consent of all the parties. Such report shall be forwarded to the commissioner and the commissioner of motor vehicles within forty-eight hours of such arraignment. The court shall provide such person with a hearing date schedule, a waiver form, and such other information as may be required by the commissioner of motor vehicles. If a hearing, as provided for in paragraph (c) of this subdi- vision, is waived by such person, the commissioner of motor vehicles A. 8599 33 shall immediately suspend the privilege to operate a snowmobile, as of the date of receipt of such waiver in accordance with the provisions of paragraph (d) of this subdivision. (c) Any person whose privilege to operate a snowmobile has been suspended pursuant to paragraph (b) of this subdivision is entitled to a hearing in accordance with a hearing schedule to be promulgated by the commissioner of motor vehicles. If the department of motor vehicles fails to provide for such hearing fifteen days after the date of the arraignment of the arrested person, the privilege to operate a snowmo- bile 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 cause to believe that such person had been operating a snowmobile in violation of any paragraph of subdi- vision one of this section; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear and unequivocal language, prior to such refusal that such refusal to submit to such chemical test OR EVALUATION or any portion thereof, would result in the immediate suspension of such person's privilege to operate a snowmobile 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 EVALUATION or any portion thereof. If, after such hearing, the hearing officer, acting on behalf of the commis- sioner of motor vehicles, 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 of motor vehicles finds all of the issues in the affirmative, such officer shall immediately suspend the privilege to operate a snowmobile in accordance with the provisions of paragraph (d) of this subdivision. A person who has had the privilege to operate a snowmobile suspended pursuant to this subdivision may appeal the findings of the hearing officer in accordance with the provisions of article three-A of the vehicle and traffic law. 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 of motor vehicles for a new hearing which shall be held as soon as practi- cable. (d) (1) Any privilege to operate a snowmobile which has been suspended pursuant to paragraph (c) of this subdivision shall not be restored for six months after such suspension. However, no such privilege shall be restored for at least one year after such suspension in any case where the person has had a prior suspension resulting from refusal to submit to a chemical test OR EVALUATION pursuant to this subdivision, or has been convicted of a violation of any paragraph of subdivision one of this section not arising out of the same incident, within the five years immediately preceding the date of such suspension. (2) Any person whose privilege to operate a snowmobile is suspended pursuant to the provisions of this subdivision shall also be liable for a civil penalty in the amount of two hundred dollars except that if such suspension is a second or subsequent suspension pursuant to this subdi- vision issued within a five year period, or such person has been convicted of a violation of any paragraph of subdivision one of this section within the past five years not arising out of the same incident, the civil penalty shall be in the amount of five hundred dollars. The privilege to operate a snowmobile shall not be restored to such person unless such penalty has been paid. The first one hundred dollars of each A. 8599 34 penalty collected by the department of motor vehicles pursuant to the provisions of this subdivision shall be paid to the commissioner of motor vehicles for deposit to the general fund and the remainder of all such penalties shall be paid to the commissioner for deposit in the snowmobile trail development and maintenance fund established pursuant to section ninety-two-n of the state finance law. (e) The commissioner of motor vehicles in consultation with the commissioner shall promulgate such rules and regulations as may be necessary to effectuate the provisions of this subdivision. (f) Evidence of a refusal to submit to such chemical test OR EVALU- ATION shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of this section, 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 [his or her] THEIR refusal. (g) Upon the request of the person tested OR EVALUATED, the results of such test OR EVALUATION shall be made available to [him or her] SUCH PERSON. 7. Compulsory chemical tests AND DRUG RECOGNITION EVALUATIONS. (a) Notwithstanding the provisions of subdivision six of this section, no person who operates a snowmobile upon a street, highway, public trails, lands, bodies of water, or private property of another may refuse to submit to a chemical test of one or more of the following: breath, blood, urine or [saliva] ORAL FLUID, OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT, for the purpose of determining the alcoholic and/or drug content of the blood when a court order for such chemical test OR EVALUATION has been issued in accordance with the provisions of this subdivision. (b) Upon refusal by any person to submit to a chemical test OR EVALU- ATION or any portion thereof as described in paragraph (a) of this subdivision, the test OR EVALUATION 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT to determine the alco- holic or drug content of the person's blood upon a finding of reasonable cause to believe that: (1) such person was the operator of a snowmobile and in the course of such operation a person other than the operator was killed or suffered serious physical injury as defined in section 10.00 of the penal law; and (2) (i) either such person operated the snowmobile in violation of any paragraph of subdivision one of this section, or (ii) a breath TEST OR ORAL FLUID test administered by a police officer in accordance with subdivision five of this section indicates that alco- hol [has] OR A DRUG OR DRUGS HAVE 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 EVALUATION or any portion thereof, requested in accordance with the provisions of subdivision six of this section or is unable to give consent to such a test. (c) For the purpose of this subdivision "reasonable cause" shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was operating a snowmobile in violation of any paragraph of subdivision one of this section. Such circumstances may include, but are not limited to: A. 8599 35 evidence that the operator was operating a snowmobile in violation of any provision of this chapter which regulates the manner in which a snowmobile is to be properly operated at the time of the incident; any visible indication of alcohol or drug consumption or impairment by the operator; any other evidence surrounding the circumstances of the inci- dent which indicates that the operator has been operating a snowmobile while impaired by the consumption of alcohol or drugs or was intoxicated at the time of the incident. (d) (1) An application for a court order to compel submission to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 incident 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 tele- phone, 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 OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 OR EVALUATION was requested was the operator of a snowmobile and in the course of such operation a person, other than the operator, has been killed or serious- ly injured and, based upon the totality of circumstances, there is reasonable cause to believe that such person was operating a snowmobile in violation of any paragraph of subdivision one of this section and, after being placed under lawful arrest such person refused to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNI- TION EXPERT or any portion thereof, in accordance with the provisions of this section or is unable to give consent to such a test OR EVALUATION 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 state- ment. (3) Upon being advised that an oral application for a court order to compel a person to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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 longhand notes. If a voice recording device is used or a stenographic record made, the judge must have the record transcribed, certify to the accuracy 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 or her] SUCH PERSON'S blood and ordering the withdrawal of a blood sample in accordance with the A. 8599 36 provisions of subdivision eight of this section AND/OR TO SUBMIT TO AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT. When a judge or justice determines to issue an order to compel submission to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT 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. (e) An order issued pursuant to the provisions of this subdivision shall require that a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT to determine the alcoholic and/or drug content of the operator's blood must be administered. The provisions of paragraphs (a), (b) and (c) of subdivision eight of this section shall be applicable to any chemical test OR EVALUATION administered pursuant to this section. (f) A defendant who has been compelled to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to the provisions of this subdivision may move for the suppression of such evidence in accordance with article seven hundred ten of the crimi- nal procedure law on the grounds that the order was obtained and the test administered OR EVALUATION CONDUCTED in violation of the provisions of this subdivision or any other applicable law. 8. Testing procedures. (a) At the request of a police officer, the following persons may withdraw blood for the purpose of determining the alcohol or drug content therein: (1) a physician, a registered profes- sional nurse or a registered physician's assistant; or (2) under the supervision and at the direction of a physician: a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health, 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] ORAL FLUID or breath specimen. (b) No person entitled to withdraw blood pursuant to paragraph (a) of this subdivision 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 or peace officer acting pursuant to [his or her] SUCH OFFICER'S special duties pursuant to this subdivision. (c) 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 paragraph (b) of this subdivision, may maintain such action against the state if the person entitled to withdraw blood pursuant to paragraph (a) of this subdivision acted at the request of a police offi- cer or peace officer acting pursuant to [his or her] SUCH OFFICER'S special duties, employed by the state, or against the appropriate poli- tical subdivision of the state if the person acted at the request of a police officer or peace officer acting pursuant to [his or her] SUCH OFFICER'S special duties, employed by a political subdivision of the A. 8599 37 state. No action shall be maintained pursuant to this paragraph unless notice of claim is duly filed or served in compliance with law. (d) Notwithstanding the foregoing provisions of this subdivision, an action may be maintained by the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to paragraph (a) of this subdivision or hospital employing such person for whose act or omission the state or the political subdivision has been held liable under this subdivision 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 on the part of such person entitled to withdraw blood. (e) The testimony of any person, other than a physician, entitled to draw blood pursuant to paragraph (a) of this subdivision in respect to any such withdrawal of blood made by [him or her] 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. (f) The provisions of paragraphs (b), (c) and (d) of this subdivision 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 with- drawing blood at the request of a police officer pursuant to a court order in accordance with this subdivision. (g) 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. 9. Chemical test AND DRUG RECOGNITION EVALUATION evidence. (a) 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 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 OR EVALUATION CONDUCTED pursuant to the provisions of subdivision six or seven of this section. (b) 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 any paragraph of subdivision one of this section and who was operating a snowmobile: (1) 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 snowmobile was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition. (2) evidence that there was more than .05 of one per centum but less than .07 of one per centum of weight in such person's blood shall be prima facie evidence that such person was not in an intoxicated condi- tion, but such evidence shall be relevant evidence but not be given prima facie effect, in determining whether the ability of such person to operate a snowmobile was impaired by the consumption of alcohol. (3) 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 a snowmobile was impaired by the consumption of alcohol. (c) Evidence of a refusal to submit to a chemical test OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT or any portion thereof shall be admissible in any trial or hearing provided the request A. 8599 38 to submit to such a test OR EVALUATION was made in accordance with the provisions of subdivision six of this section. § 31. Subdivision 1 and paragraph (b) of subdivision 2 of section 120.04 of the penal law, as amended by chapter 496 of the laws of 2009, are amended to read as follows: (1) commits such crime while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law; (b) [his or her] SUCH PERSON'S license or [his or her] SUCH PERSON'S privilege of operating a motor vehicle in the state or [his or her] SUCH PERSON'S privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; § 32. Subdivision 1 and paragraph (b) of subdivision 2 of section 120.04-a of the penal law, as amended by chapter 496 of the laws of 2009, are amended to read as follows: (1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law; (b) [his or her] SUCH PERSON'S license or [his or her] SUCH PERSON'S privilege of operating a motor vehicle in this state or [his or her] SUCH PERSON'S privilege of obtaining a license issued by the commission- er of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursu- ant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; § 33. Subdivision 1 and paragraph (b) of subdivision 2 of section 125.13 of the penal law, as amended by chapter 496 of the laws of 2009, are amended to read as follows: (1) commits such crime while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law; (b) [his or her] SUCH PERSON'S license or [his or her] SUCH PERSON'S privilege of operating a motor vehicle in the state or [his or her] SUCH PERSON'S privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test OR AN EVALU- ATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; § 34. Subdivision 1 and paragraph (b) of subdivision 2 of section 125.14 of the penal law, as amended by chapter 496 of the laws of 2009, are amended to read as follows: A. 8599 39 (1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or [saliva] ORAL FLUID made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law; (b) [his or her] SUCH PERSON'S license or [his or her] SUCH PERSON'S privilege of operating a motor vehicle in this state or [his or her] SUCH PERSON'S privilege of obtaining a license issued by the commission- er of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test OR AN EVALUATION CONDUCTED BY A CERTIFIED DRUG RECOGNITION EXPERT pursu- ant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; § 35. This act shall take effect immediately.
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