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This entry was published on 2020-04-17
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SECTION 1242-A
Operation of a bicycle with electric assist while under the influence of alcohol or drugs
Vehicle & Traffic (VAT) CHAPTER 71, TITLE 7, ARTICLE 34
§ 1242-a. Operation of a bicycle with electric assist while under the
influence of alcohol or drugs. 1. Offenses; criminal penalties. (a)
Operating a bicycle with electric assist while ability impaired. No
person shall operate a bicycle with electric assist while the person's
ability to operate such bicycle with electric assist is impaired by the
consumption of alcohol.

(i) A violation of this paragraph shall be a traffic infraction and
shall be punishable by a fine of not more than three hundred dollars, or
by imprisonment in a penitentiary or county jail for not more than
fifteen days, or by both such fine and imprisonment.

(ii) A person who operates a bicycle with electric assist in violation
of this paragraph after having been convicted of a violation of any
paragraph of this subdivision within the preceding five years shall be
punished by a fine of not more than seven hundred fifty dollars, or by
imprisonment of not more than thirty days in a penitentiary or county
jail or by both such fine and imprisonment.

(iii) A person who operates a bicycle with electric assist in
violation of this paragraph after being convicted two or more times of a
violation of any paragraph of this subdivision within the preceding ten
years shall be guilty of a misdemeanor, and shall be punished by a fine
of not more than one thousand dollars, or by imprisonment of not more
than one hundred eighty days in a penitentiary or county jail or by both
such fine and imprisonment.

(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, made pursuant to the provisions of subdivision
five of this section.

(c) Operating a bicycle with electric assist while intoxicated. No
person shall operate a bicycle with electric assist while in an
intoxicated condition.

(d) Operating a bicycle with electric assist while ability impaired by
drugs. No person shall operate a bicycle with electric assist while the
person's ability to operate such bicycle with electric assist is
impaired by the use of a drug as defined in this chapter.

(e) Operating a bicycle with electric assist while ability impaired by
the combined influence of drugs or of alcohol and any drug or drugs. No
person shall operate a bicycle with electric assist while the person's
ability to operate such bicycle with electric assist is impaired by the
combined influence of drugs or of alcohol and any drug or drugs.

(f) Penalty. (i) A violation of paragraph (b), (c), (d) or (e) of this
subdivision shall be a misdemeanor and shall be punishable by a fine of
not more than five hundred dollars, or by imprisonment in a penitentiary
or county jail for not more than one year, or by both such fine and
imprisonment.

(ii) A person who operates a bicycle with electric assist in violation
of paragraph (b), (c), (d) or (e) of this subdivision after having been
convicted of a violation of paragraph (b), (c), (d) or (e) of this
subdivision within the preceding ten years shall be guilty of a class E
felony, and shall be punished by a fine of not more than one thousand
dollars or by a period of imprisonment as provided in the penal law, or
by both such fine and imprisonment.

(iii) A person who operates a bicycle with electric assist in
violation of paragraph (b), (c), (d) or (e) of this subdivision after
having been convicted of a violation of paragraph (b), (c), (d) or (e)
of this subdivision two or more times within the preceding ten years
shall be guilty of a class E felony, and shall be punished by a fine of
not more than four thousand dollars or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment.

2. Certain sentences prohibited. Notwithstanding any provisions of the
penal law, no judge or magistrate shall impose a sentence of
unconditional discharge for a violation of paragraph (b), (c), (d) or
(e) of subdivision one of this section.

3. Sentencing; previous convictions. When sentencing a person for a
violation of paragraph (b), (c), (d) or (e) of subdivision one of this
section pursuant to subparagraph (ii) of paragraph (f) of subdivision
one of this section, the court shall consider any prior convictions the
person may have for a violation of subdivision two, two-a, three, four,
or four-a of section eleven hundred ninety-two of this title within the
preceding ten years. When sentencing a person for a violation of
paragraph (b), (c), (d) or (e) of subdivision one of this section
pursuant to subparagraph (iii) of paragraph (f) of subdivision one of
this section, the court shall consider any prior convictions the person
may have for a violation of subdivision two, two-a, three, four, or
four-a of section eleven hundred ninety-two of this title within the
preceding ten years. When sentencing a person for a violation of
subparagraph (ii) of paragraph (a) of subdivision one of this section,
the court shall consider any prior convictions the person may have for a
violation of any subdivision of section eleven hundred ninety-two of
this title within the preceding five years. When sentencing a person for
a violation of subparagraph (iii) of paragraph (a) of subdivision one of
this section, the court shall consider any prior convictions the person
may have for a violation of any subdivision of section eleven hundred
ninety-two of this title within the preceding ten years.

4. Arrest and field testing. (a) Arrest. Notwithstanding the
provisions of section 140.10 of the criminal procedure law, a police
officer may, without a warrant, arrest a person, in case of a violation
of any paragraph of subdivision one of this section, if such violation
is coupled with an accident or collision in which such person is
involved, which in fact had been committed, though not in the police
officer's presence, when the officer has reasonable cause to believe
that the violation was committed by such person. For the purposes of
this subdivision, police officer shall also include a peace officer
authorized to enforce this chapter when the alleged violation
constitutes a crime.

(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 to be administered by the police
officer. If such test indicates that such operator has consumed alcohol,
the police officer may request such operator to submit to a chemical
test in the manner set forth in subdivision five of this section.

5. Chemical tests; when authorized. A police officer may request any
person who operates a bicycle with electric assist in this state to
consent to a chemical test of one or more of the following: breath,
blood, urine, or saliva, for the purpose of determining the alcoholic
and/or drug content of such person's blood, provided that such test is
administered at the direction of a police officer with respect to a
chemical test of breath, urine or saliva or, with respect to a chemical
test of blood, at the direction of a police officer: (a) having
reasonable grounds to believe such person to have been operating in
violation of paragraph (a), (b), (c), (d) or (e) of subdivision one of
this section and within two hours after such person has been placed
under arrest for any such violation; or (b) within two hours after a
breath test, as provided in paragraph (b) of subdivision four of this
section, indicates that alcohol has been consumed by such person and in
accordance with the rules and regulations established by the police
force of which the officer is a member.

6. Testing procedures. (a) Persons authorized to withdraw blood;
immunity; testimony. (i) At the request of a police officer, the
following persons may withdraw blood for the purpose of determining the
alcoholic or drug content therein: (A) a physician, a registered
professional nurse, a registered physician assistant, a certified nurse
practitioner, or an advanced emergency medical technician as certified
by the department of health; or (B) under the supervision and at the
direction of a physician, registered physician assistant or certified
nurse practitioner acting within his or her lawful scope of practice, or
upon the express consent of the person eighteen years of age or older
from whom such blood is to be withdrawn: a clinical laboratory
technician or 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 or breath specimen.

(ii) No person entitled to withdraw blood pursuant to subparagraph (i)
of this paragraph or hospital employing such person, and no other
employer of such person shall be sued or held liable for any act done or
omitted in the course of withdrawing blood at the request of a police
officer pursuant to this section.

(iii) Any person who may have a cause of action arising from the
withdrawal of blood as aforesaid, for which no personal liability exists
under subparagraph (ii) of this paragraph, may maintain such action
against the state if any person entitled to withdraw blood pursuant to
this paragraph acted at the request of a police officer employed by the
state, or against the appropriate political subdivision of the state if
such person acted at the request of a police officer employed by a
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.

(iv) Notwithstanding subparagraphs (i), (ii) and (iii) 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 (i) of this paragraph or hospital employing such person
for whose act or omission the state or the political subdivision has
been held liable under this paragraph to recover damages, not exceeding
the amount awarded to the claimant, that may have been sustained by the
state or the political subdivision by reason of gross negligence or bad
faith on the part of such person.

(v) The testimony of any person other than a physician, entitled to
withdraw blood pursuant to subparagraph (i) of this paragraph, in
respect to any such withdrawal of blood made by such person may be
received in evidence with the same weight, force and effect as if such
withdrawal of blood were made by a physician.

(vi) The provisions of subparagraphs (ii), (iii) and (iv) of this
paragraph shall also apply with regard to any person employed by a
hospital as security personnel for any act done or omitted in the course
of withdrawing blood at the request of a police officer pursuant to this
section.

(b) Right to additional test. The person tested shall be permitted to
choose a physician to administer a chemical test in addition to the one
administered at the direction of the police officer.

(c) Rules and regulations. The department of health shall issue and
file rules and regulations approving satisfactory techniques or methods
of conducting chemical analyses of a person's blood, urine, breath or
saliva and to ascertain the qualifications and competence of individuals
to conduct and supervise chemical analyses of a person's blood, urine,
breath or saliva. If the analyses were made by an individual possessing
a permit issued by the department of health, this shall be presumptive
evidence that the examination was properly given. The provisions of this
paragraph do not prohibit the introduction as evidence of an analysis
made by an individual other than a person possessing a permit issued by
the department of health.

7. Chemical test evidence. (a) Admissibility. Upon the trial of any
such action or proceeding arising out of actions alleged to have been
committed by any person arrested for a violation of any paragraph of
subdivision one of this section, the court shall admit evidence of the
amount of alcohol or drugs in the defendant's blood as shown by a test
administered pursuant to the provisions of subdivision five of this
section.

(b) Probative value. The following effect shall be given to evidence
of blood-alcohol content, as determined by such tests, of a person
arrested for a violation of subdivision one of this section:

(i) evidence that there was .05 of one per centum or less by weight of
alcohol in such person's blood shall be prima facie evidence that the
ability of such person to operate a bicycle 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
determining whether the ability of such person to operate a bicycle with
electric assist was impaired by the consumption of alcohol.

8. Where applicable. The provisions of this section shall apply upon
public highways, private roads open to motor vehicle traffic, any other
parking lot, and sidewalks. For the purposes of this section "parking
lot" shall mean any area or areas of private property, including a
driveway, near or contiguous to and provided in connection with premises
and used as a means of access to and egress from a public highway to
such premises and having a capacity for the parking of four or more
motor vehicles. The provisions of this section shall not apply to any
area or areas of private property comprising all or part of property on
which is situated a one or two-family residence.

9. Enforcement upon crash. Notwithstanding any provision of this
section, no part of this section may be enforced unless in conjunction
with a crash involving an operator of a bicycle with electric assist.
For the purposes of this subdivision, "crash" shall mean colliding with
a vehicle, person, building or other object.