Bill Text: NY S04422 | 2011-2012 | General Assembly | Introduced
Bill Title: Provides 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: Partisan Bill (Republican 5-0)
Status: (Engrossed - Dead) 2012-06-13 - referred to codes [S04422 Detail]
Download: New_York-2011-S04422-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4422
2011-2012 Regular Sessions
I N S E N A T E
April 5, 2011
___________
Introduced by Sen. FLANAGAN -- 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 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07546-01-1
S. 4422 2
1 this section, no person who operates a motor vehicle in this state may
2 refuse to submit to a chemical test of one or more of the following:
3 breath, blood, urine or saliva, for the purpose of determining the alco-
4 holic and/or drug content of the blood when (I) a court order for such
5 chemical test has been issued in accordance with the provisions of this
6 subdivision OR (II) SUCH PERSON OPERATED A MOTOR VEHICLE IN A MANNER
7 THAT CAUSES THE DEATH OF ANOTHER PERSON.
8 (b) [When] COURT ORDERED CHEMICAL TESTS, WHEN authorized. Upon (I)
9 refusal by any person to submit to a chemical test or any portion there-
10 of [as described above] REQUESTED BY A POLICE OFFICER, PURSUANT TO THE
11 PROVISIONS OF SUBPARAGRAPH TWO-A OF PARAGRAPH (A) OF SUBDIVISION TWO OF
12 THIS SECTION, HAVING REASONABLE CAUSE TO BELIEVE SUCH PERSON TO HAVE
13 BEEN OPERATING A MOTOR VEHICLE IN A MANNER THAT CAUSED SERIOUS PHYSICAL
14 INJURY TO ANOTHER PERSON, OR (II) THE INABILITY OF ANY PERSON TO GIVE
15 CONSENT TO A CHEMICAL TEST OR ANY PORTION THEREOF REQUESTED BY A POLICE
16 OFFICER, PURSUANT TO THE PROVISIONS OF SUBPARAGRAPH TWO-A OF PARAGRAPH
17 (A) OF SUBDIVISION TWO OF THIS SECTION, HAVING REASONABLE CAUSE TO
18 BELIEVE SUCH PERSON TO HAVE BEEN OPERATING A MOTOR VEHICLE IN A MANNER
19 THAT CAUSED SERIOUS PHYSICAL INJURY TO, OR THE DEATH OF, ANOTHER PERSON,
20 the test shall not be given unless a police officer or a district attor-
21 ney, as defined in subdivision thirty-two of section 1.20 of the crimi-
22 nal procedure law, requests and obtains a court order to compel a person
23 to submit to a chemical test to determine the alcoholic or drug content
24 of the person's blood upon a finding of reasonable cause to believe
25 that:
26 (1) (A) such person was the operator of a motor vehicle and in the
27 course of such operation a person other than the operator [was killed
28 or] suffered serious physical injury as defined in section 10.00 of the
29 penal law; and
30 [(2) a. either such person operated the vehicle in violation of any
31 subdivision of section eleven hundred ninety-two of this article, or
32 b. a breath test administered by a police officer in accordance with
33 paragraph (b) of subdivision one of this section indicates that alcohol
34 has been consumed by such person; and
35 (3) such person has been placed under lawful arrest; and
36 (4)] (B) such person has refused to submit to a chemical test or any
37 portion thereof, requested in accordance with the provisions of SUBPARA-
38 GRAPH TWO-A OF paragraph (a) of subdivision two of this section or [is
39 unable to give consent to such a test]
40 (2) (A) SUCH PERSON WAS THE OPERATOR OF A MOTOR VEHICLE AND IN THE
41 COURSE OF SUCH OPERATION A PERSON OTHER THAN THE OPERATOR WAS KILLED OR
42 SUFFERED SERIOUS PHYSICAL INJURY AS DEFINED IN SECTION 10.00 OF THE
43 PENAL LAW; AND
44 (B) SUCH PERSON WAS UNABLE TO GIVE CONSENT TO SUCH A TEST.
45 (c) Reasonable cause; definition. For the purpose of this subdivision
46 "reasonable cause" shall be determined by viewing the totality of
47 circumstances surrounding the incident which, when taken together, indi-
48 cate that the operator was [driving in violation of section eleven
49 hundred ninety-two of this article. Such circumstances may include, but
50 are not limited to: evidence that the operator was operating a motor
51 vehicle in violation of any provision of this article or any other
52 moving violation at the time of the incident; any visible indication of
53 alcohol or drug consumption or impairment by the operator; the existence
54 of an open container containing an alcoholic beverage in or around the
55 vehicle driven by the operator; any other evidence surrounding the
56 circumstances of the incident which indicates that the operator has been
S. 4422 3
1 operating a motor vehicle while impaired by the consumption of alcohol
2 or drugs or intoxicated at the time of the incident] OPERATING A MOTOR
3 VEHICLE AND IN THE COURSE OF SUCH OPERATION A PERSON OTHER THAN THE
4 OPERATOR WAS KILLED OR SUFFERED SERIOUS PHYSICAL INJURY AS DEFINED IN
5 SECTION 10.00 OF THE PENAL LAW.
6 (d) Court order; procedure. (1) An application for a court order to
7 compel submission to a chemical test or any portion thereof, may be made
8 to any supreme court justice, county court judge or district court judge
9 in the judicial district in which the incident occurred, or if the inci-
10 dent occurred in the city of New York before any supreme court justice
11 or judge of the criminal court of the city of New York. Such application
12 may be communicated by telephone, radio or other means of electronic
13 communication, or in person.
14 (2) The applicant must provide identification by name and title and
15 must state the purpose of the communication. Upon being advised that an
16 application for a court order to compel submission to a chemical test is
17 being made, the court shall place under oath the applicant and any other
18 person providing information in support of the application as provided
19 in subparagraph three of this paragraph. After being sworn the applicant
20 must state that the person from whom the chemical test was requested was
21 the operator of a motor vehicle and in the course of such operation a
22 person, other than the operator, has been [killed or] seriously injured
23 [and, based upon the totality of circumstances, there is reasonable
24 cause to believe that such person was operating a motor vehicle in
25 violation of any subdivision of section eleven hundred ninety-two of
26 this article] and, after being placed under lawful arrest such person
27 refused to submit to a chemical test or any portion thereof[,] in
28 accordance with the provisions of this section or is unable to give
29 consent to such a test or any portion thereof. The applicant must make
30 specific allegations of fact to support such statement. Any other person
31 properly identified, may present sworn allegations of fact in support of
32 the applicant's statement.
33 (3) Upon being advised that an oral application for a court order to
34 compel a person to submit to a chemical test is being made, a judge or
35 justice shall place under oath the applicant and any other person
36 providing information in support of the application. Such oath or oaths
37 and all of the remaining communication must be recorded, either by means
38 of a voice recording device or verbatim stenographic or verbatim long-
39 hand notes. If a voice recording device is used or a stenographic record
40 made, the judge must have the record transcribed, certify to the accura-
41 cy of the transcription and file the original record and transcription
42 with the court within seventy-two hours of the issuance of the court
43 order. If the longhand notes are taken, the judge shall subscribe a copy
44 and file it with the court within twenty-four hours of the issuance of
45 the order.
46 (4) If the court is satisfied that the requirements for the issuance
47 of a court order pursuant to the provisions of paragraph (b) of this
48 subdivision have been met, it may grant the application and issue an
49 order requiring the accused to submit to a chemical test to determine
50 the alcoholic and/or drug content of his blood and ordering the with-
51 drawal of a blood sample in accordance with the provisions of paragraph
52 (a) of subdivision four of this section. When a judge or justice deter-
53 mines to issue an order to compel submission to a chemical test based on
54 an oral application, the applicant therefor shall prepare the order in
55 accordance with the instructions of the judge or justice. In all cases
56 the order shall include the name of the issuing judge or justice, the
S. 4422 4
1 name of the applicant, and the date and time it was issued. It must be
2 signed by the judge or justice if issued in person, or by the applicant
3 if issued orally.
4 (5) Any false statement by an applicant or any other person in support
5 of an application for a court order shall subject such person to the
6 offenses for perjury set forth in article two hundred ten of the penal
7 law.
8 (6) The chief administrator of the courts shall establish a schedule
9 to provide that a sufficient number of judges or justices will be avail-
10 able in each judicial district to hear oral applications for court
11 orders as permitted by this section.
12 (e) Administration of compulsory chemical test. An order issued pursu-
13 ant to the provisions of this subdivision shall require that a chemical
14 test to determine the alcoholic and/or drug content of the operator's
15 blood must be administered. The provisions of paragraphs (a), (b) and
16 (c) of subdivision four of this section shall be applicable to any chem-
17 ical test administered pursuant to this section.
18 S 3. This act shall take effect on the first of November next succeed-
19 ing the date on which it shall have become a law, and shall apply to
20 violations committed on and after such date.
