Bill Text: NY S01374 | 2023-2024 | General Assembly | Introduced
Bill Title: Prohibits the operation of a bicycle while under the influence of alcohol or drugs; applies upon public highways, private roads open to motor vehicle traffic, any other parking lot, and sidewalks.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO TRANSPORTATION [S01374 Detail]
Download: New_York-2023-S01374-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1374 2023-2024 Regular Sessions IN SENATE January 11, 2023 ___________ Introduced by Sen. FELDER -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation AN ACT to amend the vehicle and traffic law, in relation to prohibiting the operation of a bicycle while under the influence of alcohol or drugs The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 1242-a of the vehicle and traffic law, as added by 2 section 9 of part XX of chapter 58 of the laws of 2020, is amended to 3 read as follows: 4 § 1242-a. Operation of a bicycle or bicycle with electric assist while 5 under the influence of alcohol or drugs. 1. Offenses; criminal penal- 6 ties. (a) Operating a bicycle or bicycle with electric assist while 7 ability impaired. No person shall operate a bicycle or bicycle with 8 electric assist while the person's ability to operate such bicycle or 9 bicycle with electric assist is impaired by the consumption of alcohol. 10 (i) A violation of this paragraph shall be a traffic infraction and 11 shall be punishable by a fine of not more than three hundred dollars, or 12 by imprisonment in a penitentiary or county jail for not more than 13 fifteen days, or by both such fine and imprisonment. 14 (ii) A person who operates a bicycle or bicycle with electric assist 15 in violation of this paragraph after having been convicted of a 16 violation of any paragraph of this subdivision within the preceding five 17 years shall be punished by a fine of not more than seven hundred fifty 18 dollars, or by imprisonment of not more than thirty days in a penitenti- 19 ary or county jail or by both such fine and imprisonment. 20 (iii) A person who operates a bicycle or bicycle with electric assist 21 in violation of this paragraph after being convicted two or more times 22 of a violation of any paragraph of this subdivision within the preceding 23 ten years shall be guilty of a misdemeanor, and shall be punished by a 24 fine of not more than one thousand dollars, or by imprisonment of not EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05233-01-3S. 1374 2 1 more than one hundred eighty days in a penitentiary or county jail or by 2 both such fine and imprisonment. 3 (b) Operating a bicycle or bicycle with electric assist while intoxi- 4 cated; per se. No person shall operate a bicycle or bicycle with elec- 5 tric assist while such person has .08 of one per centum or more by 6 weight of alcohol in the person's blood as shown by chemical analysis of 7 such person's blood, breath, urine or saliva, made pursuant to the 8 provisions of subdivision five of this section. 9 (c) Operating a bicycle or bicycle with electric assist while intoxi- 10 cated. No person shall operate a bicycle or bicycle with electric assist 11 while in an intoxicated condition. 12 (d) Operating a bicycle or bicycle with electric assist while ability 13 impaired by drugs. No person shall operate a bicycle or bicycle with 14 electric assist while the person's ability to operate such bicycle or 15 bicycle with electric assist is impaired by the use of a drug as defined 16 in this chapter. 17 (e) Operating a bicycle or bicycle with electric assist while ability 18 impaired by the combined influence of drugs or of alcohol and any drug 19 or drugs. No person shall operate a bicycle or bicycle with electric 20 assist while the person's ability to operate such bicycle or bicycle 21 with electric assist is impaired by the combined influence of drugs or 22 of alcohol and any drug or drugs. 23 (f) Penalty. (i) A violation of paragraph (b), (c), (d) or (e) of this 24 subdivision shall be a misdemeanor and shall be punishable by a fine of 25 not more than five hundred dollars, or by imprisonment in a penitentiary 26 or county jail for not more than one year, or by both such fine and 27 imprisonment. 28 (ii) A person who operates a bicycle or bicycle with electric assist 29 in violation of paragraph (b), (c), (d) or (e) of this subdivision after 30 having been convicted of a violation of paragraph (b), (c), (d) or (e) 31 of this subdivision within the preceding ten years shall be guilty of a 32 class E felony, and shall be punished by a fine of not more than one 33 thousand dollars or by a period of imprisonment as provided in the penal 34 law, or by both such fine and imprisonment. 35 (iii) A person who operates a bicycle or bicycle with electric assist 36 in violation of paragraph (b), (c), (d) or (e) of this subdivision after 37 having been convicted of a violation of paragraph (b), (c), (d) or (e) 38 of this subdivision two or more times within the preceding ten years 39 shall be guilty of a class E felony, and shall be punished by a fine of 40 not more than four thousand dollars or by a period of imprisonment as 41 provided in the penal law, or by both such fine and imprisonment. 42 2. Certain sentences prohibited. Notwithstanding any provisions of the 43 penal law, no judge or magistrate shall impose a sentence of uncondi- 44 tional discharge for a violation of paragraph (b), (c), (d) or (e) of 45 subdivision one of this section. 46 3. Sentencing; previous convictions. When sentencing a person for a 47 violation of paragraph (b), (c), (d) or (e) of subdivision one of this 48 section pursuant to subparagraph (ii) of paragraph (f) of subdivision 49 one of this section, the court shall consider any prior convictions the 50 person may have for a violation of subdivision two, two-a, three, four, 51 or four-a of section eleven hundred ninety-two of this title within the 52 preceding ten years. When sentencing a person for a violation of para- 53 graph (b), (c), (d) or (e) of subdivision one of this section pursuant 54 to subparagraph (iii) of paragraph (f) of subdivision one of this 55 section, the court shall consider any prior convictions the person may 56 have for a violation of subdivision two, two-a, three, four, or four-aS. 1374 3 1 of section eleven hundred ninety-two of this title within the preceding 2 ten years. When sentencing a person for a violation of subparagraph (ii) 3 of paragraph (a) of subdivision one of this section, the court shall 4 consider any prior convictions the person may have for a violation of 5 any subdivision of section eleven hundred ninety-two of this title with- 6 in the preceding five years. When sentencing a person for a violation of 7 subparagraph (iii) of paragraph (a) of subdivision one of this section, 8 the court shall consider any prior convictions the person may have for a 9 violation of any subdivision of section eleven hundred ninety-two of 10 this title within the preceding ten years. 11 4. Arrest and field testing. (a) Arrest. Notwithstanding the 12 provisions of section 140.10 of the criminal procedure law, a police 13 officer may, without a warrant, arrest a person, in case of a violation 14 of any paragraph of subdivision one of this section, if such violation 15 is coupled with an accident or collision in which such person is 16 involved, which in fact had been committed, though not in the police 17 officer's presence, when the officer has reasonable cause to believe 18 that the violation was committed by such person. For the purposes of 19 this subdivision, police officer shall also include a peace officer 20 authorized to enforce this chapter when the alleged violation consti- 21 tutes a crime. 22 (b) Field testing. Every person operating a bicycle or bicycle with 23 electric assist which has been involved in an accident shall, at the 24 request of a police officer, submit to a breath test to be administered 25 by the police officer. If such test indicates that such operator has 26 consumed alcohol, the police officer may request such operator to submit 27 to a chemical test in the manner set forth in subdivision five of this 28 section. 29 5. Chemical tests; when authorized. A police officer may request any 30 person who operates a bicycle or bicycle with electric assist in this 31 state to consent to a chemical test of one or more of the following: 32 breath, blood, urine, or saliva, for the purpose of determining the 33 alcoholic and/or drug content of such person's blood, provided that such 34 test is administered at the direction of a police officer with respect 35 to a chemical test of breath, urine or saliva or, with respect to a 36 chemical test of blood, at the direction of a police officer: (a) having 37 reasonable grounds to believe such person to have been operating in 38 violation of paragraph (a), (b), (c), (d) or (e) of subdivision one of 39 this section and within two hours after such person has been placed 40 under arrest for any such violation; or (b) within two hours after a 41 breath test, as provided in paragraph (b) of subdivision four of this 42 section, indicates that alcohol has been consumed by such person and in 43 accordance with the rules and regulations established by the police 44 force of which the officer is a member. 45 6. Testing procedures. (a) Persons authorized to withdraw blood; immu- 46 nity; testimony. (i) At the request of a police officer, the following 47 persons may withdraw blood for the purpose of determining the alcoholic 48 or drug content therein: (A) a physician, a registered professional 49 nurse, a registered physician assistant, a certified nurse practitioner, 50 or an advanced emergency medical technician as certified by the depart- 51 ment of health; or (B) under the supervision and at the direction of a 52 physician, registered physician assistant or certified nurse practition- 53 er acting within his or her lawful scope of practice, or upon the 54 express consent of the person eighteen years of age or older from whom 55 such blood is to be withdrawn: a clinical laboratory technician or clin- 56 ical laboratory technologist licensed pursuant to article one hundredS. 1374 4 1 sixty-five of the education law; a phlebotomist; or a medical laboratory 2 technician or medical technologist employed by a clinical laboratory 3 approved under title five of article five of the public health law. This 4 limitation shall not apply to the taking of a urine, saliva or breath 5 specimen. 6 (ii) No person entitled to withdraw blood pursuant to subparagraph (i) 7 of this paragraph or hospital employing such person, and no other 8 employer of such person shall be sued or held liable for any act done or 9 omitted in the course of withdrawing blood at the request of a police 10 officer pursuant to this section. 11 (iii) Any person who may have a cause of action arising from the with- 12 drawal of blood as aforesaid, for which no personal liability exists 13 under subparagraph (ii) of this paragraph, may maintain such action 14 against the state if any person entitled to withdraw blood pursuant to 15 this paragraph acted at the request of a police officer employed by the 16 state, or against the appropriate political subdivision of the state if 17 such person acted at the request of a police officer employed by a poli- 18 tical subdivision of the state. No action shall be maintained pursuant 19 to this subparagraph unless notice of claim is duly filed or served in 20 compliance with law. 21 (iv) Notwithstanding subparagraphs (i), (ii) and (iii) of this para- 22 graph, an action may be maintained by the state or a political subdivi- 23 sion thereof against a person entitled to withdraw blood pursuant to 24 subparagraph (i) of this paragraph or hospital employing such person for 25 whose act or omission the state or the political subdivision has been 26 held liable under this paragraph to recover damages, not exceeding the 27 amount awarded to the claimant, that may have been sustained by the 28 state or the political subdivision by reason of gross negligence or bad 29 faith on the part of such person. 30 (v) The testimony of any person other than a physician, entitled to 31 withdraw blood pursuant to subparagraph (i) of this paragraph, in 32 respect to any such withdrawal of blood made by such person may be 33 received in evidence with the same weight, force and effect as if such 34 withdrawal of blood were made by a physician. 35 (vi) The provisions of subparagraphs (ii), (iii) and (iv) of this 36 paragraph shall also apply with regard to any person employed by a 37 hospital as security personnel for any act done or omitted in the course 38 of withdrawing blood at the request of a police officer pursuant to this 39 section. 40 (b) Right to additional test. The person tested shall be permitted to 41 choose a physician to administer a chemical test in addition to the one 42 administered at the direction of the police officer. 43 (c) Rules and regulations. The department of health shall issue and 44 file rules and regulations approving satisfactory techniques or methods 45 of conducting chemical analyses of a person's blood, urine, breath or 46 saliva and to ascertain the qualifications and competence of individuals 47 to conduct and supervise chemical analyses of a person's blood, urine, 48 breath or saliva. If the analyses were made by an individual possessing 49 a permit issued by the department of health, this shall be presumptive 50 evidence that the examination was properly given. The provisions of this 51 paragraph do not prohibit the introduction as evidence of an analysis 52 made by an individual other than a person possessing a permit issued by 53 the department of health. 54 7. Chemical test evidence. (a) Admissibility. Upon the trial of any 55 such action or proceeding arising out of actions alleged to have been 56 committed by any person arrested for a violation of any paragraph ofS. 1374 5 1 subdivision one of this section, the court shall admit evidence of the 2 amount of alcohol or drugs in the defendant's blood as shown by a test 3 administered pursuant to the provisions of subdivision five of this 4 section. 5 (b) Probative value. The following effect shall be given to evidence 6 of blood-alcohol content, as determined by such tests, of a person 7 arrested for a violation of subdivision one of this section: 8 (i) evidence that there was .05 of one per centum or less by weight of 9 alcohol in such person's blood shall be prima facie evidence that the 10 ability of such person to operate a bicycle or bicycle with electric 11 assist was not impaired by the consumption of alcohol, and that such 12 person was not in an intoxicated condition; 13 (ii) evidence that there was more than .05 of one per centum but less 14 than .07 of one per centum by weight of alcohol in such person's blood 15 shall be prima facie evidence that such person was not in an intoxicated 16 condition, but such evidence shall be relevant evidence, but shall not 17 be given prima facie effect, in determining whether the ability of such 18 person to operate a bicycle or bicycle with electric assist was impaired 19 by the consumption of alcohol; and 20 (iii) evidence that there was .07 of one per centum or more but less 21 than .08 of one per centum by weight of alcohol in such person's blood 22 shall be prima facie evidence that such person was not in an intoxicated 23 condition, but such evidence shall be given prima facie effect in deter- 24 mining whether the ability of such person to operate bicycle or bicycle 25 with electric assist was impaired by the consumption of alcohol. 26 8. Where applicable. The provisions of this section shall apply upon 27 public highways, private roads open to motor vehicle traffic, any other 28 parking lot, and sidewalks. For the purposes of this section "parking 29 lot" shall mean any area or areas of private property, including a 30 driveway, near or contiguous to and provided in connection with premises 31 and used as a means of access to and egress from a public highway to 32 such premises and having a capacity for the parking of four or more 33 motor vehicles. The provisions of this section shall not apply to any 34 area or areas of private property comprising all or part of property on 35 which is situated a one or two-family residence. 36 9. Enforcement upon crash. Notwithstanding any provision of this 37 section, no part of this section may be enforced unless in conjunction 38 with a crash involving an operator of a bicycle or bicycle with electric 39 assist. For the purposes of this subdivision, "crash" shall mean 40 colliding with a vehicle, person, building or other object. 41 § 2. This act shall take effect immediately.
