Bill Text: NY A08206 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to owner liability for failure of operator to move over when approaching a police, fire, or emergency vehicle.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - referred to transportation [A08206 Detail]

Download: New_York-2019-A08206-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          8206

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      June 7, 2019
                                       ___________

        Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
          tee on Transportation

        AN ACT to amend the vehicle  and  traffic  law,  in  relation  to  owner
          liability  for  failure  of  operator  to move over when approaching a
          police, fire, or emergency vehicle

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  vehicle  and  traffic law is amended by adding a new
     2  section 1144-b to read as follows:
     3    § 1144-b. Owner liability for failure of operator to  move  over  when
     4  approaching  a  parked,  stopped  or standing authorized police, fire or
     5  emergency vehicle. (a) 1.  Notwithstanding any other provision  of  law,
     6  the superintendent of the state police is hereby authorized to establish
     7  a  demonstration  program  imposing monetary liability on the owner of a
     8  vehicle for failure of an operator thereof to  comply  with  subdivision
     9  (a)  of  section  eleven  hundred  forty-four-a  of  this  article  when
    10  approaching a state police vehicle equipped  with  a  move  over  safety
    11  monitoring system and operated in accordance with the provisions of this
    12  section.  Such demonstration program shall empower the superintendent of
    13  the state police to install and operate a move over monitoring system on
    14  any state police vehicle authorized by the superintendent.
    15    2. Notwithstanding any other provision of law, a county, city, town or
    16  village is hereby authorized to establish a demonstration program impos-
    17  ing monetary liability on the owner of a vehicle for failure of an oper-
    18  ator thereof to comply with subdivision (a) of  section  eleven  hundred
    19  forty-four-a  of this article when approaching any police, fire or emer-
    20  gency vehicle equipped with a move over  safety  monitoring  system  and
    21  operated  in accordance with the provisions of this section. Such demon-
    22  stration program shall empower such county, city,  town  or  village  to
    23  install  and  operate a move over safety monitoring system on any police
    24  vehicle, fire vehicle or emergency ambulance service vehicle, as defined

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13044-01-9

        A. 8206                             2

     1  in this chapter that has been authorized by the county,  city,  town  or
     2  village.
     3    3.  Each  move  over  safety monitoring system shall undergo an annual
     4  calibration check performed by  an  independent  calibration  laboratory
     5  which  shall  issue a signed certificate of calibration. The superinten-
     6  dent of the state police or authorizing  municipality  shall  keep  such
     7  annual  certificate of calibration on file until the final resolution of
     8  all cases involving a notice of liability issued during such year  which
     9  were based on photographs, microphotographs, videotape or other recorded
    10  images produced by such move over monitoring system.
    11    4. (i) Such demonstration program shall utilize necessary technologies
    12  to  ensure,  to  the  extent  practicable, that photographs, microphoto-
    13  graphs, videotape or other recorded images produced by  such  move  over
    14  safety  monitoring  system  shall  not  include images that identify the
    15  driver, passenger, or the other contents  of  the  vehicle.    Provided,
    16  however,  that  no  notice  of liability issued pursuant to this section
    17  shall be dismissed  solely  because  such  photograph,  microphotograph,
    18  videotape or other recorded image allows for identification of the driv-
    19  er,  the passenger, or the contents of the vehicle where the superinten-
    20  dent of the state police  or  the  authorized  municipality  shows  that
    21  reasonable efforts were made to comply with the provisions of this para-
    22  graph in such case.
    23    (ii) Photographs, microphotographs, videotape or other recorded images
    24  from a move over monitoring system shall be for the exclusive use of the
    25  superintendent  of  the  state police or authorized municipality for the
    26  purpose of the  adjudication  of  liability  imposed  pursuant  to  this
    27  section  and  of  the  owner receiving a notice of liability pursuant to
    28  this section, and shall be destroyed by the superintendent of the  state
    29  police or authorized municipality upon final resolution of the notice of
    30  liability  to  which  such  photographs,  microphotographs, videotape or
    31  other recorded images relate, or one year following the date of issuance
    32  of such notice of liability, whichever is later.    Notwithstanding  the
    33  provisions  of any other law, rule or regulation to the contrary, photo-
    34  graphs, microphotographs, videotape or any other recorded image  from  a
    35  move  over monitoring system shall not be open to the public nor subject
    36  to civil or criminal process or discovery, nor  used  by  any  court  or
    37  administrative  or adjudicatory body in any action or proceeding therein
    38  except that which is necessary for  the  adjudication  of  a  notice  of
    39  liability  issued  pursuant  to  this  section,  and no public entity or
    40  employee, officer or agent  thereof  shall  disclose  such  information,
    41  except  that  such photographs, microphotographs, videotape or any other
    42  recorded images from such system:
    43    (A) shall be available for inspection and copying and use by the motor
    44  vehicle owner and operator for so long as such photographs,  microphoto-
    45  graphs, videotape or other recorded images are required to be maintained
    46  or are maintained by such public entity, employee, officer or agent; and
    47    (B)  (1)  shall be furnished when described in a search warrant issued
    48  by a court authorized to issue such a search warrant pursuant to article
    49  six hundred ninety of the criminal procedure  law  or  a  federal  court
    50  authorized  to  issue  such search warrant under federal law, where such
    51  search warrant states that there is reasonable  cause  to  believe  such
    52  information  constitutes  evidence  of,  or tends to demonstrate that, a
    53  misdemeanor or felony offense was committed in  this  state  or  another
    54  state,  or  that a particular person participated in the commission of a
    55  misdemeanor or felony offense in this state or another state,  provided,
    56  however, that if such offense was against the laws of another state, the

        A. 8206                             3

     1  court  shall only issue a warrant if the conduct comprising such offense
     2  would, if occurring in this state, constitute a  misdemeanor  or  felony
     3  against the laws of this state;
     4    (2) shall be furnished in response to a subpoena duces tecum signed by
     5  a  judge  of  competent  jurisdiction and issued pursuant to article six
     6  hundred ten of the criminal procedure law or a judge or magistrate of  a
     7  federal  court  authorized  to  issue  such a subpoena duces tecum under
     8  federal law, where the judge finds and the subpoena states that there is
     9  reasonable cause to believe such information is relevant and material to
    10  the prosecution, or the defense, or the investigation by  an  authorized
    11  law  enforcement official, of the alleged commission of a misdemeanor or
    12  felony in this state or another state, provided, however, that  if  such
    13  offense  was against the laws of another state, such judge or magistrate
    14  shall only issue such subpoena if the conduct  comprising  such  offense
    15  would, if occurring in this state, constitute a misdemeanor or felony in
    16  this state; and
    17    (3)  may,  if lawfully obtained pursuant to this clause and clause (A)
    18  of this subparagraph and otherwise admissible, be used in such  criminal
    19  action or proceeding.
    20    (b)  If  the  superintendent of the state police or authorized munici-
    21  pality establishes a demonstration program pursuant to  subdivision  (a)
    22  of  this  section,  the owner of a vehicle shall be liable for a penalty
    23  imposed pursuant to subdivision (e) of this section if such vehicle  was
    24  used  or  operated with the permission of the owner, express or implied,
    25  in violation of subdivision (a) of section eleven  hundred  forty-four-a
    26  of  this  article or such vehicle was unable to move over as required by
    27  section eleven hundred forty-four-a of this article and traveling  at  a
    28  speed of more than five miles per hour above the posted speed limit when
    29  passing  an authorized state police, police, fire or emergency ambulance
    30  service vehicle and such violation is evidenced by information  obtained
    31  from  a move over monitoring system; provided however that no owner of a
    32  vehicle shall be liable for a penalty imposed  pursuant  to  subdivision
    33  (e)  of  this  section  where  the  operator  of  such  vehicle has been
    34  convicted of the underlying violation of subdivision (b), (c), (d), (f),
    35  or (g) of section eleven hundred eighty of this title.
    36    (c) For purposes of this section, the following terms shall  have  the
    37  following meanings:
    38    1.  "Move over safety monitoring system" shall mean a recording device
    39  placed on any authorized vehicle, pursuant to paragraphs one and two  of
    40  subdivision  (a) of this section, that is designed to capture a recorded
    41  video or images of a motor vehicle committing a violation, under  subdi-
    42  vision (a) of section eleven hundred forty-four-a of this article, using
    43  (i)  video  or another visual recording; (ii) certified radar, lidar, or
    44  another speed measuring device; or (iii) a computer or recording system.
    45    2. "Owner" shall have the meaning as defined in article two-B of  this
    46  chapter.
    47    3.  "Recorded  image" shall mean images recorded by a move over safety
    48  monitoring system on (i) one or  more  photographs;  (ii)  one  or  more
    49  microphotographs;  (iii)  one  or more electronic images; (iv) video; or
    50  (v) any other medium; and such recorded images show a motor vehicle and,
    51  on at least one image or portion of tape, clearly identify the registra-
    52  tion plate number of the motor vehicle.
    53    4. "Authorized municipality"  shall  mean  a  county,  city,  town  or
    54  village  which  has  established a demonstration program pursuant to the
    55  provisions of paragraphs one and two of subdivision (a) of this section.

        A. 8206                             4

     1    5. "Authorized vehicle" shall mean any state police vehicle authorized
     2  by the superintendent to operate a move over monitoring  system  or  any
     3  police,  fire  or  emergency  ambulance  vehicle authorized by a county,
     4  city, town or village to operate a move over monitoring system.
     5    (d) 1. A certificate, sworn to or affirmed by a technician employed by
     6  the  division  of state police or the local law enforcement agency of an
     7  authorized municipality, or a facsimile thereof, based  upon  inspection
     8  of  photographs,  microphotographs,  videotapes or other recorded images
     9  produced by a move over monitoring system, shall be prima facie evidence
    10  of the facts contained therein. Any photographs, microphotographs, vide-
    11  otape or other recorded images evidencing such violation shall include:
    12    (i) an image of at least  one  of  the  motor  vehicle's  registration
    13  plates;
    14    (ii) images containing the stamped date and time and location at which
    15  the violation occurred; and
    16    (iii) the speed at which the vehicle was traveling and the distance of
    17  the vehicle from the authorized vehicle.
    18    2.  Such  recorded images shall be available for inspection reasonably
    19  in advance of and at any proceeding to adjudicate the liability for such
    20  violation pursuant to this section.
    21    (e) An owner liable for a violation of section eleven  hundred  forty-
    22  four-a  of  this article pursuant to a demonstration program established
    23  pursuant to this section shall  be  liable  for  monetary  penalties  in
    24  accordance  with  a  schedule  of fines and penalties to be set forth in
    25  such local law or ordinance, except that if a  city  by  local  law  has
    26  authorized  the  adjudication  of  such  owner  liability  by  a parking
    27  violations bureau, such schedule shall be promulgated  by  such  bureau.
    28  The liability of the owner pursuant to this section shall be one hundred
    29  fifty  dollars for each violation; provided however, that such local law
    30  or ordinance may provide for an additional  penalty  not  in  excess  of
    31  twenty-five  dollars  for  each  violation for the failure to respond to
    32  notice of liability within the prescribed time period.
    33    (f) An imposition of liability under the demonstration program  estab-
    34  lished  pursuant  to this section shall not be deemed a conviction as an
    35  operator and shall not be made part  of  the  operating  record  of  the
    36  person whom such liability is imposed nor shall it be used for insurance
    37  purposes in the provision of motor vehicle coverage.
    38    (g) 1. A notice of liability shall be sent by first class mail to each
    39  person alleged to be liable as an owner for a violation of section elev-
    40  en hundred forty-four-a of this article pursuant to this section, within
    41  fourteen  business  days  if  such owner is a resident of this state and
    42  within forty-five  business  days  if  such  owner  is  a  non-resident.
    43  Personal  delivery on the owner shall not be required. A manual or auto-
    44  matic record of mailing prepared in  the  ordinary  course  of  business
    45  shall be prima facie evidence of the facts contained therein.
    46    2.  A  notice  of  liability shall contain the name and address of the
    47  person alleged to be liable as an owner for violation of section  eleven
    48  hundred  forty-four-a  of  this  article  pursuant  to this section, the
    49  registration number of the  vehicle  involved  in  such  violation,  the
    50  location  where  such  violation  took  place, the date and time of such
    51  violation, the identification number of the camera  which  recorded  the
    52  violation  or  other  document  locator  number,  images  containing the
    53  stamped date and time and location at which the violation occurred,  and
    54  the  speed  at  which  the vehicle was traveling and the distance of the
    55  vehicle from the authorized vehicle.

        A. 8206                             5

     1    3. The notice of liability  shall  contain  information  advising  the
     2  person charged of the manner and the time in which he or she may contest
     3  the liability alleged in the notice. Such notice of liability shall also
     4  contain a prominent warning to advise the person charged that failure to
     5  contest  in the manner and time provided shall be deemed an admission of
     6  liability and that default judgment may be entered thereon.
     7    4. The notice of liability shall be prepared and mailed by  the  divi-
     8  sion  of  the  state  police or authorized municipality, or by any other
     9  entity authorized by the superintendent of state  police  or  authorized
    10  municipality to prepare and mail such notice of liability.
    11    (h)  Adjudication of the liability imposed upon owners by this section
    12  shall be by a traffic violations bureau established pursuant to  section
    13  three  hundred  seventy of the general municipal law where the violation
    14  occurred or, if there be none, by the  court  having  jurisdiction  over
    15  traffic  infractions where the violation occurred, except that if a city
    16  has  established  an  administrative  tribunal  to  hear  and  determine
    17  complaints  of  traffic  infractions  constituting parking, standing, or
    18  stopping violations such city may, by local law, authorize such  adjudi-
    19  cation by such tribunal.
    20    (i)  If an owner receives notice of liability pursuant to this section
    21  for any time period during which the vehicle  or  the  number  plate  or
    22  plates  of  such vehicle was reported to the police department as having
    23  been stolen, it shall be a valid defense to an allegation  of  liability
    24  for  a  violation of section eleven hundred forty-four-a of this article
    25  pursuant to this section that the vehicle or the number plate or  plates
    26  of  such  vehicle had been reported to the police as stolen prior to the
    27  time the violation occurred and had not been recovered by such time. For
    28  purposes of asserting the defense provided by this subdivision, it shall
    29  be sufficient that a certified copy of the police report on  the  stolen
    30  vehicle or number plate or plates of such vehicle be sent by first class
    31  mail  to traffic violations bureau, the court having jurisdiction or the
    32  parking violations bureau or to any entity authorized by the superinten-
    33  dent of state police or authorized municipality to prepare and mail such
    34  notice of liability.
    35    (j) 1. An owner who is a lessor of a vehicle  to  which  a  notice  of
    36  liability  was  issued pursuant to subdivision (g) of this section shall
    37  not  be  liable  for  the  violation  under   section   eleven   hundred
    38  forty-four-a of this article pursuant to this section, provided that:
    39    (i)  prior  to  the  violation, the lessor has filed with such traffic
    40  violations bureau, court having jurisdiction or the  parking  violations
    41  bureau  in accordance with the provisions of section two hundred thirty-
    42  nine of this chapter; and
    43    (ii) within thirty-seven days after receiving notice from  such  divi-
    44  sion of the date and time of a liability, together with the other infor-
    45  mation contained in the original notice of liability, the lessor submits
    46  to  such  traffic  violations  bureau,  court having jurisdiction or the
    47  parking violations bureau the correct name and address of the lessee  of
    48  the  vehicle  identified  in the notice of liability at the time of such
    49  violation, together with such other additional information contained  in
    50  the  rental,  lease  or  other  contract  document, as may be reasonably
    51  required by such traffic violations bureau, court having jurisdiction or
    52  the parking violations  bureau  pursuant  to  regulations  that  may  be
    53  promulgated for such purpose.
    54    2.  Failure  to comply with subparagraph (ii) of paragraph one of this
    55  subdivision shall render the owner liable for the penalty prescribed  in
    56  subdivision (e) of this section.

        A. 8206                             6

     1    3.  Where  the lessor complies with the provisions of paragraph one of
     2  this subdivision, the lessee  of  such  vehicle  on  the  date  of  such
     3  violation  shall  be  deemed  to  be  the  owner of such vehicle for the
     4  purposes of this  section,  shall  be  subject  to  liability  for  such
     5  violation pursuant to this section and shall be sent a notice of liabil-
     6  ity pursuant to subdivision (i) of this section.
     7    (k)  1.  If the owner liable for a violation of section eleven hundred
     8  forty-four-a of this article pursuant to this section was not the opera-
     9  tor of the vehicle at the time of the violation, the owner may  maintain
    10  an action for indemnification against the operator.
    11    2.  Notwithstanding any other provision of this section, no owner of a
    12  vehicle shall be subject to a monetary fine  imposed  pursuant  to  this
    13  section if the operator of such vehicle was operating such vehicle with-
    14  out  the  consent  of  the owner at the time such operator operated such
    15  vehicle in violation of section  eleven  hundred  forty-four-a  of  this
    16  article.  For  purposes of this subdivision there shall be a presumption
    17  that the operator of such vehicle was operating such  vehicle  with  the
    18  consent  of the owner at the time of such operator operated such vehicle
    19  in violation of section eleven hundred forty-four-a of this article.
    20    (l) Nothing in this section shall be construed to limit the  liability
    21  of  an operator of a vehicle for any violation of section eleven hundred
    22  forty-four-a of this article.
    23    (m) If the superintendent of the state police  or  authorized  munici-
    24  pality  adopts  a  demonstration  program pursuant to subdivision (a) of
    25  this  section  such  superintendent  or  authorized  municipality  shall
    26  conduct  a study and submit a report on the results of the use of a move
    27  over monitoring system to the governor, the temporary president  of  the
    28  senate  and  the speaker of the assembly. Such report shall include, but
    29  shall not be limited to:
    30    1. the locations where and dates when  move  over  monitoring  systems
    31  were used;
    32    2. the aggregate number of violations;
    33    3.  the  number of violations recorded in aggregate on a daily, weekly
    34  and monthly basis;
    35    4. the total number of notices  of  liability  issued  for  violations
    36  recorded by such system;
    37    5.  the number of fines and total amount of fines paid after the first
    38  notice of liability issued for violations recorded by such systems;
    39    6. the number of violations adjudicated and the result of such adjudi-
    40  cations  including  breakdowns  of  dispositions  made  for   violations
    41  recorded by such systems;
    42    7.  the  total amount of revenue realized by the state or municipality
    43  in connection with the program; and
    44    8. expenses incurred by the division of  state  police  or  authorized
    45  municipality in connection with the program.
    46    § 2. This act shall take effect January 1, 2020.
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