Bill Text: NY A08560 | 2013-2014 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Enacts Ruby's Law providing for mandatory testing of breath, blood or urine in the event of a motor vehicle collision resulting in death or injury; provides immunity from civil liability for those health care providers who comply with the provisions of law requiring such testing.

Spectrum: Bipartisan Bill

Status: (Engrossed - Dead) 2014-06-19 - REFERRED TO RULES [A08560 Detail]

Download: New_York-2013-A08560-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         8560
                                 I N  A S S E M B L Y
                                   January 22, 2014
                                      ___________
       Introduced by M. of A. BENEDETTO, MAYER -- read once and referred to the
         Committee on Transportation
       AN  ACT  to  amend the vehicle and traffic law, in relation to mandatory
         testing in the event of a motor vehicle collision resulting in  injury
         or death
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subparagraphs 1 and 2 of paragraph (a) of subdivision 2  of
    2  section  1194  of the vehicle and traffic law, as amended by chapter 196
    3  of the laws of 1996, are amended and a new subparagraph 2-a is added  to
    4  read as follows:
    5    (1)  having  reasonable  grounds  to  believe such person to have been
    6  operating in violation of any  subdivision  of  section  eleven  hundred
    7  ninety-two  of  this  article and within two hours after such person has
    8  been placed under arrest for any such violation;  or  having  reasonable
    9  grounds  to  believe  such person to have been operating in violation of
   10  section eleven hundred ninety-two-a of this article and within two hours
   11  after the stop of such person for any such violation, OR
   12    (2) within two hours after a breath test, as provided in paragraph (b)
   13  of subdivision one of this section,  indicates  that  alcohol  has  been
   14  consumed by such person and in accordance with the rules and regulations
   15  established by the police force of which the officer is a member[;], OR
   16    (2-A)  HAVING  REASONABLE  GROUNDS TO BELIEVE SUCH PERSON TO HAVE BEEN
   17  OPERATING A MOTOR VEHICLE IN A MANNER THAT CAUSES SERIOUS PHYSICAL INJU-
   18  RY AS DEFINED IN SECTION 10.00 OF THE PENAL LAW TO,  OR  THE  DEATH  OF,
   19  ANOTHER  PERSON AND WITHIN TWO HOURS AFTER SUCH OPERATION WHICH RESULTED
   20  IN SUCH SERIOUS PHYSICAL INJURY OR DEATH, OR
   21    S 2. Subdivision 3 of section 1194 of the vehicle and traffic law,  as
   22  added by chapter 47 of the laws of 1988, is amended to read as follows:
   23    3.  Compulsory chemical tests. (a) [Court] MANDATORY AND COURT ordered
   24  chemical tests.  Notwithstanding the provisions of  subdivision  two  of
   25  this  section,  no person who operates a motor vehicle in this state may
   26  refuse to submit to a chemical test of one or  more  of  the  following:
   27  breath, blood, urine or saliva, for the purpose of determining the alco-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05636-01-3
       A. 8560                             2
    1  holic  and/or  drug content of the blood when (I) a court order for such
    2  chemical test has been issued in accordance with the provisions of  this
    3  subdivision  OR  (II)  SUCH  PERSON OPERATED A MOTOR VEHICLE IN A MANNER
    4  THAT CAUSES THE DEATH OF ANOTHER PERSON.
    5    (b)  [When]  COURT  ORDERED  CHEMICAL TESTS, WHEN authorized. Upon (I)
    6  refusal by any person to submit to a chemical test or any portion there-
    7  of [as described above] REQUESTED BY A POLICE OFFICER, PURSUANT  TO  THE
    8  PROVISIONS  OF SUBPARAGRAPH TWO-A OF PARAGRAPH (A) OF SUBDIVISION TWO OF
    9  THIS SECTION, HAVING REASONABLE CAUSE TO BELIEVE  SUCH  PERSON  TO  HAVE
   10  BEEN  OPERATING A MOTOR VEHICLE IN A MANNER THAT CAUSED SERIOUS PHYSICAL
   11  INJURY TO ANOTHER PERSON, OR (II) THE INABILITY OF ANY  PERSON  TO  GIVE
   12  CONSENT  TO A CHEMICAL TEST OR ANY PORTION THEREOF REQUESTED BY A POLICE
   13  OFFICER, PURSUANT TO THE PROVISIONS OF SUBPARAGRAPH TWO-A  OF  PARAGRAPH
   14  (A)  OF  SUBDIVISION  TWO  OF  THIS  SECTION, HAVING REASONABLE CAUSE TO
   15  BELIEVE SUCH PERSON TO HAVE BEEN OPERATING A MOTOR VEHICLE IN  A  MANNER
   16  THAT CAUSED SERIOUS PHYSICAL INJURY TO, OR THE DEATH OF, ANOTHER PERSON,
   17  the test shall not be given unless a police officer or a district attor-
   18  ney,  as defined in subdivision thirty-two of section 1.20 of the crimi-
   19  nal procedure law, requests and obtains a court order to compel a person
   20  to submit to a chemical test to determine the alcoholic or drug  content
   21  of  the  person's  blood  upon  a finding of reasonable cause to believe
   22  that:
   23    (1) (A) such person was the operator of a motor  vehicle  and  in  the
   24  course  of  such  operation a person other than the operator [was killed
   25  or] suffered serious physical injury as defined in section 10.00 of  the
   26  penal law; and
   27    [(2)  a.  either  such person operated the vehicle in violation of any
   28  subdivision of section eleven hundred ninety-two of this article, or
   29    b. a breath test administered by a police officer in  accordance  with
   30  paragraph  (b) of subdivision one of this section indicates that alcohol
   31  has been consumed by such person; and
   32    (3) such person has been placed under lawful arrest; and
   33    (4)] (B) such person has refused to submit to a chemical test  or  any
   34  portion thereof, requested in accordance with the provisions of SUBPARA-
   35  GRAPH  TWO-A  OF paragraph (a) of subdivision two of this section or [is
   36  unable to give consent to such a test]
   37    (2) (A) SUCH PERSON WAS THE OPERATOR OF A MOTOR  VEHICLE  AND  IN  THE
   38  COURSE  OF SUCH OPERATION A PERSON OTHER THAN THE OPERATOR WAS KILLED OR
   39  SUFFERED SERIOUS PHYSICAL INJURY AS DEFINED  IN  SECTION  10.00  OF  THE
   40  PENAL LAW; AND
   41    (B) SUCH PERSON WAS UNABLE TO GIVE CONSENT TO SUCH A TEST.
   42    (c)  Reasonable cause; definition. For the purpose of this subdivision
   43  "reasonable cause" shall  be  determined  by  viewing  the  totality  of
   44  circumstances surrounding the incident which, when taken together, indi-
   45  cate  that  the  operator  was  [driving  in violation of section eleven
   46  hundred ninety-two of this article. Such circumstances may include,  but
   47  are  not  limited  to:  evidence that the operator was operating a motor
   48  vehicle in violation of any provision  of  this  article  or  any  other
   49  moving  violation at the time of the incident; any visible indication of
   50  alcohol or drug consumption or impairment by the operator; the existence
   51  of an open container containing an alcoholic beverage in or  around  the
   52  vehicle  driven  by  the  operator;  any  other evidence surrounding the
   53  circumstances of the incident which indicates that the operator has been
   54  operating a motor vehicle while impaired by the consumption  of  alcohol
   55  or  drugs  or intoxicated at the time of the incident] OPERATING A MOTOR
   56  VEHICLE AND IN THE COURSE OF SUCH OPERATION  A  PERSON  OTHER  THAN  THE
       A. 8560                             3
    1  OPERATOR  WAS  KILLED  OR SUFFERED SERIOUS PHYSICAL INJURY AS DEFINED IN
    2  SECTION 10.00 OF THE PENAL LAW.
    3    (d)  Court  order;  procedure. (1) An application for a court order to
    4  compel submission to a chemical test or any portion thereof, may be made
    5  to any supreme court justice, county court judge or district court judge
    6  in the judicial district in which the incident occurred, or if the inci-
    7  dent occurred in the city of New York before any supreme  court  justice
    8  or judge of the criminal court of the city of New York. Such application
    9  may  be  communicated  by  telephone, radio or other means of electronic
   10  communication, or in person.
   11    (2) The applicant must provide identification by name  and  title  and
   12  must  state the purpose of the communication. Upon being advised that an
   13  application for a court order to compel submission to a chemical test is
   14  being made, the court shall place under oath the applicant and any other
   15  person providing information in support of the application  as  provided
   16  in subparagraph three of this paragraph. After being sworn the applicant
   17  must state that the person from whom the chemical test was requested was
   18  the  operator  of  a motor vehicle and in the course of such operation a
   19  person, other than the operator, has been [killed or] seriously  injured
   20  [and,  based  upon  the  totality  of circumstances, there is reasonable
   21  cause to believe that such person  was  operating  a  motor  vehicle  in
   22  violation  of  any  subdivision  of section eleven hundred ninety-two of
   23  this article] and, after being placed under lawful  arrest  such  person
   24  refused  to  submit  to  a  chemical  test  or any portion thereof[,] in
   25  accordance with the provisions of this section  or  is  unable  to  give
   26  consent  to  such a test or any portion thereof. The applicant must make
   27  specific allegations of fact to support such statement. Any other person
   28  properly identified, may present sworn allegations of fact in support of
   29  the applicant's statement.
   30    (3) Upon being advised that an oral application for a court  order  to
   31  compel  a  person to submit to a chemical test is being made, a judge or
   32  justice shall place under  oath  the  applicant  and  any  other  person
   33  providing  information in support of the application. Such oath or oaths
   34  and all of the remaining communication must be recorded, either by means
   35  of a voice recording device or verbatim stenographic or  verbatim  long-
   36  hand notes. If a voice recording device is used or a stenographic record
   37  made, the judge must have the record transcribed, certify to the accura-
   38  cy  of  the transcription and file the original record and transcription
   39  with the court within seventy-two hours of the  issuance  of  the  court
   40  order. If the longhand notes are taken, the judge shall subscribe a copy
   41  and  file  it with the court within twenty-four hours of the issuance of
   42  the order.
   43    (4) If the court is satisfied that the requirements for  the  issuance
   44  of  a  court  order  pursuant to the provisions of paragraph (b) of this
   45  subdivision have been met, it may grant the  application  and  issue  an
   46  order  requiring  the  accused to submit to a chemical test to determine
   47  the alcoholic and/or drug content of his blood and  ordering  the  with-
   48  drawal  of a blood sample in accordance with the provisions of paragraph
   49  (a) of subdivision four of this section. When a judge or justice  deter-
   50  mines to issue an order to compel submission to a chemical test based on
   51  an  oral  application, the applicant therefor shall prepare the order in
   52  accordance with the instructions of the judge or justice.  In all  cases
   53  the  order  shall  include the name of the issuing judge or justice, the
   54  name of the applicant, and the date and time it was issued.  It must  be
   55  signed  by the judge or justice if issued in person, or by the applicant
   56  if issued orally.
       A. 8560                             4
    1    (5) Any false statement by an applicant or any other person in support
    2  of an application for a court order shall subject  such  person  to  the
    3  offenses  for  perjury set forth in article two hundred ten of the penal
    4  law.
    5    (6)  The  chief administrator of the courts shall establish a schedule
    6  to provide that a sufficient number of judges or justices will be avail-
    7  able in each judicial district  to  hear  oral  applications  for  court
    8  orders as permitted by this section.
    9    (e) Administration of compulsory chemical test. An order issued pursu-
   10  ant  to the provisions of this subdivision shall require that a chemical
   11  test to determine the alcoholic and/or drug content  of  the  operator's
   12  blood  must  be  administered. The provisions of paragraphs (a), (b) and
   13  (c) of subdivision four of this section shall be applicable to any chem-
   14  ical test administered pursuant to this section.
   15    S 3. This act shall take effect on the first of November next succeed-
   16  ing the date on which it shall have become a law,  and  shall  apply  to
   17  violations committed on and after such date.