Bill Text: NY S06093 | 2019-2020 | General Assembly | Introduced


Bill Title: Allows application to a court to compel compliance with a chemical test where a motorist is suspected to be under the influence and where the driver has refused a chemical test.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-05-16 - REFERRED TO TRANSPORTATION [S06093 Detail]

Download: New_York-2019-S06093-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          6093

                               2019-2020 Regular Sessions

                    IN SENATE

                                      May 16, 2019
                                       ___________

        Introduced  by Sen. KAMINSKY -- 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  compulsory
          chemical tests

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

     1    Section 1.  Paragraph (b) of subdivision 3  of  section  1194  of  the
     2  vehicle  and traffic law, as added by chapter 47 of the laws of 1988, is
     3  amended to read as follows:
     4    (b) When authorized. Upon refusal by any person to submit to a  chemi-
     5  cal  test  or any portion thereof as described above, the test shall not
     6  be given unless a police officer or a district attorney, as  defined  in
     7  subdivision  thirty-two  of  section 1.20 of the criminal procedure law,
     8  requests and obtains a court order to compel a person  to  submit  to  a
     9  chemical test to determine the alcoholic or drug content of the person's
    10  blood upon a finding of reasonable cause to believe that:
    11    (1) [such person was the operator of a motor vehicle and in the course
    12  of  such  operation  a  person  other  than  the  operator was killed or
    13  suffered serious physical injury as defined  in  section  10.00  of  the
    14  penal law; and
    15    (2)]  a.  either  such person operated the vehicle in violation of any
    16  subdivision of section eleven hundred ninety-two of this article, or
    17    b. a breath test administered by a police officer in  accordance  with
    18  paragraph  (b) of subdivision one of this section indicates that alcohol
    19  has been consumed by such person; and
    20    [(3)] (2) such person has been placed under lawful arrest; and
    21    [(4)] (3) such person has refused to submit to a chemical test or  any
    22  portion  thereof,  requested  in accordance with the provisions of para-
    23  graph (a) of subdivision two of  this  section  or  is  unable  to  give
    24  consent to such a test.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11542-01-9

        S. 6093                             2

     1    §  2.  Subparagraphs  1  and  2  of  paragraph (b) of subdivision 2 of
     2  section 1194 of the vehicle and traffic law, subparagraph 1  as  amended
     3  by  chapter  489  of  the laws of 2017, clause (A) of subparagraph 1 and
     4  subparagraph 2 as amended by chapter 27 of the laws of 2018, are amended
     5  to read as follows:
     6    (1)  If: (A) such person having been placed under arrest; or (B) after
     7  a breath test indicates the presence of alcohol in the person's  system;
     8  or  (C)  with  regard to a person under the age of twenty-one, there are
     9  reasonable grounds to believe that such  person  has  been  operating  a
    10  motor  vehicle  after  having  consumed  alcohol in violation of section
    11  eleven hundred ninety-two-a of this article; and having thereafter  been
    12  requested  to submit to such chemical test and having been informed that
    13  the person's license or permit to drive and any  non-resident  operating
    14  privilege  shall  be immediately suspended and subsequently revoked, or,
    15  for operators under the age of twenty-one for whom there are  reasonable
    16  grounds to believe that such operator has been operating a motor vehicle
    17  after  having  consumed  alcohol  in violation of section eleven hundred
    18  ninety-two-a of this article, shall be revoked for refusal to submit  to
    19  such  chemical test or any portion thereof, whether or not the person is
    20  found guilty of  the  charge  for  which  such  person  is  arrested  or
    21  detained,  refuses to submit to such chemical test or any portion there-
    22  of, [unless a court order has been granted pursuant to subdivision three
    23  of this section, the test shall not be given and] a  written  report  of
    24  such refusal shall be immediately made by the police officer before whom
    25  such  refusal was made. Such report may be verified by having the report
    26  sworn to, or by affixing to such report a form notice that false  state-
    27  ments  made  therein are punishable as a class A misdemeanor pursuant to
    28  section 210.45 of the penal law and such form notice together  with  the
    29  subscription  of  the  deponent  shall  constitute a verification of the
    30  report.
    31    (2) The report of  the  police  officer  shall  set  forth  reasonable
    32  grounds  to  believe  such arrested person or such detained person under
    33  the age of twenty-one had been driving in violation of  any  subdivision
    34  of  section  eleven hundred ninety-two or eleven hundred ninety-two-a of
    35  this article[,] and that said person had refused to submit to such chem-
    36  ical test[, and that no chemical test was administered pursuant  to  the
    37  requirements  of subdivision three of this section]. The report shall be
    38  presented to the court upon arraignment of an arrested person, provided,
    39  however, in the case of a person under the age of twenty-one, for whom a
    40  test was authorized pursuant to the provisions of  subparagraph  two  or
    41  three  of paragraph (a) of this subdivision, and who has not been placed
    42  under arrest for a violation of any of the provisions of section  eleven
    43  hundred  ninety-two  of  this article, such report shall be forwarded to
    44  the commissioner within forty-eight hours in a manner to  be  prescribed
    45  by  the  commissioner,  and  all  subsequent  proceedings with regard to
    46  refusal to submit to such chemical test by such person shall be  as  set
    47  forth  in  subdivision  three of section eleven hundred ninety-four-a of
    48  this article.
    49    § 3. Subparagraph 2 of paragraph (d) of subdivision 3 of section  1194
    50  of  the  vehicle  and traffic law, as added by chapter 47 of the laws of
    51  1988, is amended to read as follows:
    52    (2) The applicant must provide identification by name  and  title  and
    53  must  state the purpose of the communication. Upon being advised that an
    54  application for a court order to compel submission to a chemical test is
    55  being made, the court shall place under oath the applicant and any other
    56  person providing information in support of the application  as  provided

        S. 6093                             3

     1  in subparagraph three of this paragraph. After being sworn the applicant
     2  must state that the person from whom the chemical test was requested was
     3  the  operator  of a motor vehicle and [in the course of such operation a
     4  person,  other  than  the operator, has been killed or seriously injured
     5  and], based upon the totality  of  circumstances,  there  is  reasonable
     6  cause  to  believe  that  such  person  was operating a motor vehicle in
     7  violation of any subdivision of section  eleven  hundred  ninety-two  of
     8  this  article  and,  after  being placed under lawful arrest such person
     9  refused to submit to a chemical test or any portion thereof, in  accord-
    10  ance with the provisions of this section or is unable to give consent to
    11  such  a  test  or  any portion thereof. The applicant must make specific
    12  allegations of fact to support such statement. Any other person properly
    13  identified, may present sworn allegations of  fact  in  support  of  the
    14  applicant's statement.
    15    § 4. This act shall take effect immediately.
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