A 8599: Establishes an oral fluid task force to study and make recommendations on best practices for the testing of oral fluids to determine impairment due to drug intoxication while operating a motor vehicle in the state; replaces the word "saliva" with the term "oral fluid" and relates to the testing of oral fluids.

  
  STATE OF NEW YORK ________________________________________________________________________ 8599 2025-2026 Regular Sessions  IN ASSEMBLY May 22, 2025 ___________ Introduced by M. of A. NORBER -- read once and referred to the Committee on Transportation AN ACT to establish an oral fluid task force to study and make recommen- dations on best practices for the testing of oral fluid to determine impairment due to drug intoxication while operating a motor vehicle in the state of New York; and to amend the vehicle and traffic law, the criminal procedure law, the environmental conservation law, the navi- gation law, the parks, recreation and historic preservation law and the penal law, in relation to the testing of oral fluids The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Oral fluid task force. 1. (a) A task force is hereby estab- 2 lished to study and make recommendations on best practices for the test- 3 ing of oral fluid to determine impairment due to drug intoxication while 4 operating a motor vehicle in the state of New York. For the purposes of 5 this task force, "testing of oral fluid" or "oral fluid test" shall mean 6 a standardized preliminary saliva analysis test validated by the 7 National Highway Traffic Safety Administration for the detection of 8 cannabis or other drugs. A field sobriety test shall be considered an 9 oral fluid test if such test is administered in substantial compliance 10 with the standards prescribed by the National Highway Traffic Safety 11 Administration. 12 (b) The task force shall study: 13 (i) the frequency of traffic stops where impairment due to drug intox- 14 ication is a central or contributing factor for the stop; 15 (ii) current law enforcement methodologies to determine drug intoxica- 16 tion, including but not limited to any devices that have the ability to 17 determine the level of impairment and type of drug consumed; 18 (iii) the feasibility of expanding drug recognition expert training 19 for all law enforcement agencies and personnel involved in traffic 20 enforcement in the state of New York; and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13046-01-5 
 A. 8599 2 1 (iv) the feasibility of mandating drug recognition expert training for 2 all law enforcement agencies and personnel involved in traffic enforce- 3 ment in the state of New York. 4 (c) No later than one year after the effective date of this section, 5 the task force shall report its findings to the governor, the temporary 6 president of the senate, the minority leader of the senate, the speaker 7 of the assembly, and the minority leader of the assembly. 8 2. (a) The task force shall be comprised of the commissioner of the 9 department of motor vehicles or their designee, the commissioner of the 10 department of transportation or their designee, the commissioner of the 11 department of health or their designee, the executive director of the 12 office of cannabis management or their designee, the superintendent of 13 the state police or their designee, the chairperson of the New York 14 state STOP-DWI Foundation or their designee, and the commissioner of the 15 division of criminal justice services or their designee. 16 (b) One member of the task force shall serve as chairperson of the 17 task force. 18 (c) The members of the task force shall receive no compensation for 19 their services, but shall be allowed their actual and necessary expenses 20 incurred in the performance of their services. 21 (d) All departments, divisions, bureaus, commissions, districts or 22 agencies of the state or any political subdivisions thereof shall, at 23 the request of the chairperson, or head of such entity provide the task 24 force with such staff, facilities, assistance and data as will enable 25 the task force to carry out its powers and duties. 26 § 2. Section 114-a of the vehicle and traffic law, as amended by chap- 27 ter 92 of the laws of 2021, is amended to read as follows: 28 § 114-a. Drug. The term "drug" when used in this chapter, means and 29 includes any substance listed in section thirty-three hundred six of the 30 public health law and cannabis and concentrated cannabis as defined in 31 section 222.00 of the penal law and any substance or combination of 32 substances that impair physical or mental abilities to any extent. 33 § 3. The vehicle and traffic law is amended by adding two new sections 34 119-c and 120-a to read as follows: 35 § 119-c. Impaired. Impairment is reached when a driver has consumed or 36 ingested a substance or combination of substances to the extent that the 37 driver has impaired, to any extent, the physical and/or mental abilities 38 which a driver is expected to possess in order to operate a vehicle as a 39 reasonable and prudent person. 40 § 120-a. Intoxication. Intoxication is a greater degree of impairment 41 which is reached when a driver has consumed or ingested a substance or 42 combination of substances to the extent that the driver is incapable, to 43 a substantial extent, of employing the physical and/or mental abilities 44 which a driver is expected to possess in order to operate a vehicle as a 45 reasonable and prudent person. 46 § 4. Subdivision 2, paragraph (a) of subdivision 2-a, and subdivisions 47 5 and 6 of section 1192 of the vehicle and traffic law, subdivision 2 as 48 amended by chapter 3 of the laws of 2002, paragraph (a) of subdivision 49 2-a as amended by chapter 496 of the laws of 2009, and subdivisions 5 50 and 6 as amended by chapter 236 of the laws of 2003, are amended to read 51 as follows: 52 2. Driving while intoxicated; per se. No person shall operate a motor 53 vehicle while such person has .08 of one per centum or more by weight of 54 alcohol in the person's blood or is impaired by the ingestion of a drug 55 or drugs as shown by chemical analysis of such person's blood, breath, 56 urine or [saliva] oral fluid, or by an evaluation conducted by a certi- 
 A. 8599 3 1 fied drug recognition expert, or any portion thereof, made pursuant to 2 the provisions of section eleven hundred ninety-four of this article. 3 (a) Per se. No person shall operate a motor vehicle while such person 4 has .18 of one per centum or more by weight of alcohol in such person's 5 blood or is impaired by the ingestion of a drug or drugs as shown by 6 chemical analysis of such person's blood, breath, urine or [saliva] oral 7 fluid, or by an evaluation conducted by a certified drug recognition 8 expert, or any portion thereof, made pursuant to the provisions of 9 section eleven hundred ninety-four of this article. 10 5. Commercial motor vehicles: per se - level I. Notwithstanding the 11 provisions of section eleven hundred ninety-five of this article, no 12 person shall operate a commercial motor vehicle while such person has 13 .04 of one per centum or more but not more than .06 of one per centum by 14 weight of alcohol in the person's blood as shown by chemical analysis of 15 such person's blood, breath, urine or [saliva] oral fluid, or by an 16 evaluation conducted by a certified drug recognition expert, or any 17 portion thereof, made pursuant to the provisions of section eleven 18 hundred ninety-four of this article; provided, however, nothing 19 contained in this subdivision shall prohibit the imposition of a charge 20 of a violation of subdivision one of this section, or of section eleven 21 hundred ninety-two-a of this article where a person under the age of 22 twenty-one operates a commercial motor vehicle where a chemical analysis 23 of such person's blood, breath, urine, or [saliva] oral fluid, or by an 24 evaluation conducted by a certified drug recognition expert, or any 25 portion thereof, made pursuant to the provisions of section eleven 26 hundred ninety-four of this article, indicates that such operator has 27 .02 of one per centum or more but less than .04 of one per centum by 28 weight of alcohol in such operator's blood or was impaired by the inges- 29 tion of a drug or drugs. 30 6. Commercial motor vehicles; per se - level II. Notwithstanding the 31 provisions of section eleven hundred ninety-five of this article, no 32 person shall operate a commercial motor vehicle while such person has 33 more than .06 of one per centum but less than .08 of one per centum by 34 weight of alcohol in the person's blood as shown by chemical analysis of 35 such person's blood, breath, urine or [saliva] oral fluid, or by an 36 evaluation conducted by a certified drug recognition expert, or any 37 portion thereof, made pursuant to the provisions of section eleven 38 hundred ninety-four of this article; provided, however, nothing 39 contained in this subdivision shall prohibit the imposition of a charge 40 of a violation of subdivision one of this section. 41 § 5. Section 1192-a of the vehicle and traffic law, as added by chap- 42 ter 196 of the laws of 1996, is amended to read as follows: 43 § 1192-a. Operating a motor vehicle after having consumed alcohol; 44 under the age of twenty-one; per se. No person under the age of twenty- 45 one shall operate a motor vehicle after having consumed alcohol as 46 defined in this section. For purposes of this section, a person under 47 the age of twenty-one is deemed to have consumed alcohol only if such 48 person has .02 of one per centum or more but not more than .07 of one 49 per centum by weight of alcohol in the person's blood, as shown by chem- 50 ical analysis of such person's blood, breath, urine or [saliva] oral 51 fluid, made pursuant to the provisions of section eleven hundred nine- 52 ty-four of this article. Any person who operates a motor vehicle in 53 violation of this section, and who is not charged with a violation of 54 any subdivision of section eleven hundred ninety-two of this article 55 arising out of the same incident shall be referred to the department for 56 action in accordance with the provisions of section eleven hundred nine- 
 A. 8599 4 1 ty-four-a of this article. Except as otherwise provided in subdivision 2 five of section eleven hundred ninety-two of this article, this section 3 shall not apply to a person who operates a commercial motor vehicle. 4 Notwithstanding any provision of law to the contrary, a finding that a 5 person under the age of twenty-one operated a motor vehicle after having 6 consumed alcohol in violation of this section is not a judgment of 7 conviction for a crime or any other offense. 8 § 6. Clause (a), the opening paragraph of clause (b), and item (i) of 9 clause (e) of subparagraph 12 of paragraph b of subdivision 2 of section 10 1193 of the vehicle and traffic law, as added by chapter 732 of the laws 11 of 2006, are amended to read as follows: 12 (a) Notwithstanding any other provision of this chapter to the contra- 13 ry, whenever a revocation is imposed upon a person for the refusal to 14 submit to a chemical test or an evaluation conducted by a certified drug 15 recognition expert pursuant to the provisions of section eleven hundred 16 ninety-four of this article or conviction for any violation of section 17 eleven hundred ninety-two of this article for which a sentence of impri- 18 sonment may be imposed, and such person has: (i) within the previous 19 four years been twice convicted of any provisions of section eleven 20 hundred ninety-two of this article or a violation of the penal law for 21 which a violation of such section eleven hundred ninety-two is an essen- 22 tial element and at least one such conviction was for a crime, or has 23 twice been found to have refused to submit to a chemical test or an 24 evaluation conducted by a certified drug recognition expert pursuant to 25 section eleven hundred ninety-four of this article, or has any combina- 26 tion of two such convictions and findings of refusal not arising out of 27 the same incident; or (ii) within the previous eight years been 28 convicted three times of any provision of section eleven hundred nine- 29 ty-two of this article for which a sentence of imprisonment may be 30 imposed or a violation of the penal law for which a violation of such 31 section eleven hundred ninety-two is an essential element and at least 32 two such convictions were for crimes, or has been found, on three sepa- 33 rate occasions, to have refused to submit to a chemical test or an eval- 34 uation conducted by a certified drug recognition expert pursuant to 35 section eleven hundred ninety-four of this article, or has any combina- 36 tion of such convictions and findings of refusal not arising out of the 37 same incident, such revocation shall be permanent. 38 The permanent driver's license revocation required by clause (a) of 39 this subparagraph shall be waived by the commissioner after a period of 40 five years has expired since the imposition of such permanent revoca- 41 tion, provided that during such five-year period such person has not 42 been found to have refused a chemical test or an evaluation conducted by 43 a certified drug recognition expert pursuant to section eleven hundred 44 ninety-four of this article while operating a motor vehicle and has not 45 been convicted of a violation of any subdivision of section eleven 46 hundred ninety-two of this article or section five hundred eleven of 47 this chapter or a violation of the penal law for which a violation of 48 any subdivision of such section eleven hundred ninety-two is an essen- 49 tial element and either: 50 (i) that during such eight-year period such person has not been found 51 to have refused a chemical test or an evaluation conducted by a certi- 52 fied drug recognition expert pursuant to section eleven hundred ninety- 53 four of this article while operating a motor vehicle and has not been 54 convicted of a violation of any subdivision of section eleven hundred 55 ninety-two of this article or section five hundred eleven of this chap- 56 ter or a violation of the penal law for which a violation of any such 
 A. 8599 5 1 subdivisions of such section eleven hundred ninety-two is an essential 2 element; and 3 § 7. The opening paragraph and item (i) of clause b of subparagraph 3 4 of paragraph (e) of subdivision 2 of section 1193 of the vehicle and 5 traffic law, as amended by section 17 of part E of chapter 60 of the 6 laws of 2005, are amended to read as follows: 7 Any person who holds a commercial driver's license and is convicted of 8 a violation of any subdivision of section eleven hundred ninety-two of 9 this article who has had a prior finding of refusal to submit to a chem- 10 ical test or an evaluation conducted by a certified drug recognition 11 expert pursuant to section eleven hundred ninety-four of this article or 12 has had a prior conviction of any of the following offenses: any 13 violation of section eleven hundred ninety-two of this article; any 14 violation of subdivision one or two of section six hundred of this chap- 15 ter; or has a prior conviction of any felony involving the use of a 16 motor vehicle pursuant to paragraph (a) of subdivision one of section 17 five hundred ten-a of this chapter, shall be permanently disqualified 18 from operating a commercial motor vehicle. The commissioner may waive 19 such disqualification and prohibition hereinbefore provided after a 20 period of ten years has expired from such sentence provided: 21 (i) that during such ten year period such person has not been found to 22 have refused a chemical test or an evaluation conducted by a certified 23 drug recognition expert pursuant to section eleven hundred ninety-four 24 of this article while operating a motor vehicle and has not been 25 convicted of any one of the following offenses while operating a motor 26 vehicle: any violation of section eleven hundred ninety-two of this 27 article; any violation of subdivision one or two of section six hundred 28 of this chapter; or has a prior conviction of any felony involving the 29 use of a motor vehicle pursuant to paragraph (a) of subdivision one of 30 section five hundred ten-a of this chapter; 31 § 8. The subparagraph heading and clauses a and b of subparagraph 7 of 32 paragraph (e) of subdivision 2 of section 1193 of the vehicle and traf- 33 fic law, as added by chapter 312 of the laws of 1994, clause a as 34 amended by chapter 732 of the laws of 2006 and clause b as separately 35 amended by chapters 3 and 571 of the laws of 2002, are amended to read 36 as follows: 37 Suspension pending prosecution; excessive blood alcohol content or 38 impairment by a drug or drugs. a. Except as provided in clause a-1 of 39 this subparagraph, a court shall suspend a driver's license, pending 40 prosecution, of any person charged with a violation of subdivision two, 41 two-a, three or four-a of section eleven hundred ninety-two of this 42 article who, at the time of arrest, is alleged to have had .08 of one 43 percent or more by weight of alcohol in such driver's blood or is 44 alleged to have been impaired by the ingestion of a drug or drugs as 45 shown by chemical analysis of blood, breath, urine or [saliva] oral 46 fluid, or by an evaluation conducted by a certified drug recognition 47 expert, or any portion thereof, made pursuant to subdivision two or 48 three of section eleven hundred ninety-four of this article, or the 49 driver makes a statement admitting to driving while intoxicated by alco- 50 hol or while impaired by a drug or drugs. 51 b. The suspension occurring under clause a of this subparagraph shall 52 occur no later than at the conclusion of all proceedings required for 53 the arraignment and the suspension occurring under clause a-1 of this 54 subparagraph shall occur immediately after the holder's first appearance 55 before the court on the charge which shall, whenever possible, be the 56 next regularly scheduled session of the court after the arrest or at the 
 A. 8599 6 1 conclusion of all proceedings required for the arraignment; provided, 2 however, that if the results of any test administered pursuant to 3 section eleven hundred ninety-four of this article are not available 4 within such time period, the complainant police officer or other public 5 servant shall transmit such results to the court at the time they become 6 available, and the court shall, as soon as practicable following the 7 receipt of such results and in compliance with the requirements of this 8 subparagraph, suspend such license. In order for the court to impose 9 such suspension it must find that the accusatory instrument conforms to 10 the requirements of section 100.40 of the criminal procedure law and 11 there exists reasonable cause to believe either that (a) the holder 12 operated a motor vehicle while such holder had .08 of one percent or 13 more by weight of alcohol or was impaired by the ingestion of a drug or 14 drugs in [his or her] their blood as was shown by chemical analysis of 15 such person's blood, breath, urine or [saliva] oral fluid, or by an 16 evaluation conducted by a certified drug recognition expert, or any 17 portion thereof, made pursuant to the provisions of section eleven 18 hundred ninety-four of this article, or the driver makes a statement 19 admitting to driving while intoxicated by alcohol or while impaired by a 20 drug or drugs, or (b) the person was the holder of a class DJ or MJ 21 learner's permit or a class DJ or MJ driver's license and operated a 22 motor vehicle while such holder was in violation of subdivision one, two 23 and/or three of section eleven hundred ninety-two of this article. At 24 the time of such license suspension the holder shall be entitled to an 25 opportunity to make a statement regarding these two issues and to pres- 26 ent evidence tending to rebut the court's findings. 27 § 9. Section 1194 of the vehicle and traffic law, as added by chapter 28 47 of the laws of 1988, paragraph (a) of subdivision 2 as amended by 29 chapter 196 of the laws of 1996, paragraphs (b) and (c) of subdivision 2 30 as amended by chapter 489 of the laws of 2017, clause (A) of subpara- 31 graph 1, subparagraphs 2 and 3 of paragraph (b), subparagraphs 1, 2 and 32 3 of paragraph (c) of subdivision 2 as amended by chapter 27 of the laws 33 of 2018, subparagraphs 1 and 2 of paragraph (d) of subdivision 2 as 34 amended by chapter 732 of the laws of 2006, item (iii) of clause c of 35 subparagraph 1 of paragraph (d) of subdivision 2 as amended by section 36 37 of part LL of chapter 56 of the laws of 2010, and subparagraph 1 of 37 paragraph (a) of subdivision 4 as amended by chapter 169 of the laws of 38 2010, is amended to read as follows: 39 § 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest. 40 Notwithstanding the provisions of section 140.10 of the criminal proce- 41 dure law, a police officer may, without a warrant, arrest a person, in 42 case of a violation of subdivision one of section eleven hundred nine- 43 ty-two of this article, if such violation is coupled with an accident or 44 collision in which such person is involved, which in fact has been 45 committed, though not in the police officer's presence, when the officer 46 has reasonable cause to believe that the violation was committed by such 47 person. 48 (b) Field testing. Every person operating a motor vehicle which has 49 been involved in an accident or which is operated in violation of any of 50 the provisions of this chapter shall, at the request of a police offi- 51 cer, submit to a breath test and oral fluid test to be administered by 52 the police officer. If such test indicates that such operator has 53 consumed alcohol or a drug or drugs, the police officer may request such 54 operator to submit to a chemical test and an evaluation conducted by a 55 certified drug recognition expert in the manner set forth in subdivision 56 two of this section. 
 A. 8599 7 1 (c) Refusal to submit to a breath test or oral fluid test pursuant to 2 paragraph (b) of this subdivision shall be a traffic infraction, subject 3 to penalties as defined in section eighteen hundred of this chapter. 4 2. Chemical tests and certified drug recognition evaluations. (a) 5 When authorized. Any person who operates a motor vehicle in this state 6 shall be deemed to have given consent to an evaluation conducted by a 7 certified drug recognition expert, and a chemical test of one or more of 8 the following: breath, blood, urine, or [saliva] oral fluid, for the 9 purpose of determining the alcoholic and/or drug content [of the blood] 10 within such person's body, provided that such test is administered by or 11 at the direction of a police officer with respect to a chemical test of 12 breath, urine or [saliva] oral fluid or, with respect to a chemical test 13 of blood, at the direction of a police officer: 14 (1) having reasonable grounds to believe such person to have been 15 operating in violation of any subdivision of section eleven hundred 16 ninety-two of this article and within two hours after such person has 17 been placed under arrest for any such violation; or having reasonable 18 grounds to believe such person to have been operating in violation of 19 section eleven hundred ninety-two-a of this article and within two hours 20 after the stop of such person for any such violation, 21 (2) within two hours after a breath test or oral fluid test, as 22 provided in paragraph (b) of subdivision one of this section, indicates 23 that alcohol [has] or a drug or drugs have been consumed by such person 24 and in accordance with the rules and regulations established by the 25 police force of which the officer is a member; 26 (3) for the purposes of this paragraph, "reasonable grounds" to 27 believe that a person has been operating a motor vehicle after having 28 consumed alcohol in violation of section eleven hundred ninety-two-a of 29 this article shall be determined by viewing the totality of circum- 30 stances surrounding the incident which, when taken together, indicate 31 that the operator was driving in violation of such subdivision. Such 32 circumstances may include any visible or behavioral indication of alco- 33 hol consumption by the operator, the existence of an open container 34 containing or having contained an alcoholic beverage in or around the 35 vehicle driven by the operator, or any other evidence surrounding the 36 circumstances of the incident which indicates that the operator has been 37 operating a motor vehicle after having consumed alcohol at the time of 38 the incident; or 39 (4) notwithstanding any other provision of law to the contrary, no 40 person under the age of twenty-one shall be arrested for an alleged 41 violation of section eleven hundred ninety-two-a of this article. 42 However, a person under the age of twenty-one for whom a chemical test 43 or an evaluation conducted by a certified drug recognition expert is 44 authorized pursuant to this paragraph may be temporarily detained by the 45 police solely for the purpose of requesting or administering such chemi- 46 cal test or an evaluation conducted by a certified drug recognition 47 expert whenever arrest without a warrant for a petty offense would be 48 authorized in accordance with the provisions of section 140.10 of the 49 criminal procedure law or paragraph (a) of subdivision one of this 50 section. 51 (b) Report of refusal. (1) If: (A) such person having been placed 52 under arrest; or (B) after a breath or oral fluid test indicates the 53 presence of alcohol or a drug or drugs in the person's system; or (C) 54 with regard to a person under the age of twenty-one, there are reason- 55 able grounds to believe that such person has been operating a motor 56 vehicle after having consumed alcohol in violation of section eleven 
 A. 8599 8 1 hundred ninety-two-a of this article; and having thereafter been 2 requested to submit to such chemical test or an evaluation conducted by 3 a certified drug recognition expert and having been informed that the 4 person's license or permit to drive and any non-resident operating priv- 5 ilege shall be immediately suspended and subsequently revoked, or, for 6 operators under the age of twenty-one for whom there are reasonable 7 grounds to believe that such operator has been operating a motor vehicle 8 after having consumed alcohol in violation of section eleven hundred 9 ninety-two-a of this article, shall be revoked for refusal to submit to 10 such chemical test or any portion thereof, or an evaluation conducted by 11 a certified drug recognition expert or any portion thereof whether or 12 not the person is found guilty of the charge for which such person is 13 arrested or detained, refuses to submit to such chemical test or any 14 portion thereof[, unless a court order has been granted pursuant to 15 subdivision three of this section] or an evaluation conducted by a 16 certified drug recognition expert or any portion thereof, the test shall 17 not be given and a written report of such refusal shall be immediately 18 made by the police officer before whom such refusal was made. Such 19 report may be verified by having the report sworn to, or by affixing to 20 such report a form notice that false statements made therein are punish- 21 able as a class A misdemeanor pursuant to section 210.45 of the penal 22 law and such form notice together with the subscription of the deponent 23 shall constitute a verification of the report. 24 (2) The report of the police officer shall set forth reasonable 25 grounds to believe such arrested person or such detained person under 26 the age of twenty-one had been driving in violation of any subdivision 27 of section eleven hundred ninety-two or eleven hundred ninety-two-a of 28 this article, that said person had refused to submit to such chemical 29 test, [and that no chemical test was administered pursuant to the 30 requirements of subdivision three of this section] or an evaluation 31 conducted by a certified drug recognition expert or any portion thereof. 32 The report shall be presented to the court upon arraignment of an 33 arrested person, provided, however, in the case of a person under the 34 age of twenty-one, for whom a test was authorized pursuant to the 35 provisions of subparagraph two or three of paragraph (a) of this subdi- 36 vision, and who has not been placed under arrest for a violation of any 37 of the provisions of section eleven hundred ninety-two of this article, 38 such report shall be forwarded to the commissioner within forty-eight 39 hours in a manner to be prescribed by the commissioner, and all subse- 40 quent proceedings with regard to refusal to submit to such chemical test 41 or an evaluation conducted by a certified drug recognition expert by 42 such person shall be as set forth in subdivision three of section eleven 43 hundred ninety-four-a of this article. 44 (3) For persons placed under arrest for a violation of any subdivision 45 of section eleven hundred ninety-two of this article, the license or 46 permit to drive and any non-resident operating privilege shall, upon the 47 basis of such written report, be temporarily suspended by the court 48 without notice pending the determination of a hearing as provided in 49 paragraph (c) of this subdivision. Copies of such report must be trans- 50 mitted by the court to the commissioner and such transmittal may not be 51 waived even with the consent of all the parties. Such report shall be 52 forwarded to the commissioner within forty-eight hours of such arraign- 53 ment. 54 (4) The court or the police officer, in the case of a person under the 55 age of twenty-one alleged to be driving after having consumed alcohol, 56 shall provide such person with a scheduled hearing date, a waiver form, 
 A. 8599 9 1 and such other information as may be required by the commissioner. If a 2 hearing, as provided for in paragraph (c) of this subdivision, or subdi- 3 vision three of section eleven hundred ninety-four-a of this article, is 4 waived by such person, the commissioner shall immediately revoke the 5 license, permit, or non-resident operating privilege, as of the date of 6 receipt of such waiver in accordance with the provisions of paragraph 7 (d) of this subdivision. 8 (c) Hearings. Any person whose license or permit to drive or any non- 9 resident driving privilege has been suspended pursuant to paragraph (b) 10 of this subdivision is entitled to a hearing in accordance with a hear- 11 ing schedule to be promulgated by the commissioner. If the department 12 fails to provide for such hearing fifteen days after the date of the 13 arraignment of the arrested person, the license, permit to drive or 14 non-resident operating privilege of such person shall be reinstated 15 pending a hearing pursuant to this section. The hearing shall be limited 16 to the following issues: (1) did the police officer have reasonable 17 grounds to believe that such person had been driving in violation of any 18 subdivision of section eleven hundred ninety-two of this article; (2) 19 did the police officer make a lawful arrest of such person; (3) was such 20 person given sufficient warning, in clear or unequivocal language, prior 21 to such refusal that such refusal to submit to such chemical test or any 22 portion thereof, or an evaluation conducted by a certified drug recogni- 23 tion expert or any portion thereof, would result in the immediate 24 suspension and subsequent revocation of such person's license or operat- 25 ing privilege whether or not such person is found guilty of the charge 26 for which the arrest was made; and (4) did such person refuse to submit 27 to such chemical test or any portion thereof, or an evaluation conducted 28 by a certified drug recognition expert or any portion thereof. If, 29 after such hearing, the hearing officer, acting on behalf of the commis- 30 sioner, finds on any one of said issues in the negative, the hearing 31 officer shall immediately terminate any suspension arising from such 32 refusal. If, after such hearing, the hearing officer, acting on behalf 33 of the commissioner finds all of the issues in the affirmative, such 34 officer shall immediately revoke the license or permit to drive or any 35 non-resident operating privilege in accordance with the provisions of 36 paragraph (d) of this subdivision. A person who has had a license or 37 permit to drive or non-resident operating privilege suspended or revoked 38 pursuant to this subdivision may appeal the findings of the hearing 39 officer in accordance with the provisions of article three-A of this 40 chapter. Any person may waive the right to a hearing under this section. 41 Failure by such person to appear for the scheduled hearing shall consti- 42 tute a waiver of such hearing, provided, however, that such person may 43 petition the commissioner for a new hearing which shall be held as soon 44 as practicable. 45 (d) Sanctions. (1) Revocations. a. Any license which has been revoked 46 pursuant to paragraph (c) of this subdivision shall not be restored for 47 at least one year after such revocation, nor thereafter, except in the 48 discretion of the commissioner. However, no such license shall be 49 restored for at least eighteen months after such revocation, nor there- 50 after except in the discretion of the commissioner, in any case where 51 the person has had a prior revocation resulting from refusal to submit 52 to a chemical test or an evaluation conducted by a certified drug recog- 53 nition expert or any portion thereof, or has been convicted of or found 54 to be in violation of any subdivision of section eleven hundred ninety- 55 two or section eleven hundred ninety-two-a of this article not arising 56 out of the same incident, within the five years immediately preceding 
 A. 8599 10 1 the date of such revocation; provided, however, a prior finding that a 2 person under the age of twenty-one has refused to submit to a chemical 3 test or an evaluation conducted by a certified drug recognition expert 4 or any portion thereof pursuant to subdivision three of section eleven 5 hundred ninety-four-a of this article shall have the same effect as a 6 prior finding of a refusal pursuant to this subdivision solely for the 7 purpose of determining the length of any license suspension or revoca- 8 tion required to be imposed under any provision of this article, 9 provided that the subsequent offense or refusal is committed or occurred 10 prior to the expiration of the retention period for such prior refusal 11 as set forth in paragraph (k) of subdivision one of section two hundred 12 one of this chapter. 13 b. Any license which has been revoked pursuant to paragraph (c) of 14 this subdivision or pursuant to subdivision three of section eleven 15 hundred ninety-four-a of this article, where the holder was under the 16 age of twenty-one years at the time of such refusal, shall not be 17 restored for at least one year, nor thereafter, except in the discretion 18 of the commissioner. Where such person under the age of twenty-one years 19 has a prior finding, conviction or youthful offender adjudication 20 resulting from a violation of section eleven hundred ninety-two or 21 section eleven hundred ninety-two-a of this article, not arising from 22 the same incident, such license shall not be restored for at least one 23 year or until such person reaches the age of twenty-one years, whichever 24 is the greater period of time, nor thereafter, except in the discretion 25 of the commissioner. 26 c. Any commercial driver's license which has been revoked pursuant to 27 paragraph (c) of this subdivision based upon a finding of refusal to 28 submit to a chemical test or an evaluation conducted by a certified drug 29 recognition expert or any portion thereof, where such finding occurs 30 within or outside of this state, shall not be restored for at least 31 eighteen months after such revocation, nor thereafter, except in the 32 discretion of the commissioner, but shall not be restored for at least 33 three years after such revocation, nor thereafter, except in the 34 discretion of the commissioner, if the holder of such license was oper- 35 ating a commercial motor vehicle transporting hazardous materials at the 36 time of such refusal. However, such person shall be permanently disqual- 37 ified from operating a commercial motor vehicle in any case where the 38 holder has a prior finding of refusal to submit to a chemical test or an 39 evaluation thereof conducted by a certified drug recognition expert or 40 any portion thereof pursuant to this section or has a prior conviction 41 of any of the following offenses: any violation of section eleven 42 hundred ninety-two of this article; any violation of subdivision one or 43 two of section six hundred of this chapter; or has a prior conviction of 44 any felony involving the use of a motor vehicle pursuant to paragraph 45 (a) of subdivision one of section five hundred ten-a of this chapter. 46 Provided that the commissioner may waive such permanent revocation after 47 a period of ten years has expired from such revocation provided: 48 (i) that during such ten year period such person has not been found to 49 have refused a chemical test or an evaluation conducted by a certified 50 drug recognition expert or any portion thereof pursuant to this section 51 and has not been convicted of any one of the following offenses: any 52 violation of section eleven hundred ninety-two of this article; refusal 53 to submit to a chemical test or an evaluation conducted by a certified 54 drug recognition expert or any portion thereof pursuant to this section; 55 any violation of subdivision one or two of section six hundred of this 56 chapter; or has a prior conviction of any felony involving the use of a 
 A. 8599 11 1 motor vehicle pursuant to paragraph (a) of subdivision one of section 2 five hundred ten-a of this chapter; 3 (ii) that such person provides acceptable documentation to the commis- 4 sioner that such person is not in need of alcohol or drug treatment or 5 has satisfactorily completed a prescribed course of such treatment; and 6 (iii) after such documentation is accepted, that such person is grant- 7 ed a certificate of relief from disabilities or a certificate of good 8 conduct pursuant to article twenty-three of the correction law by the 9 court in which such person was last penalized. 10 d. Upon a third finding of refusal and/or conviction of any of the 11 offenses which require a permanent commercial driver's license revoca- 12 tion, such permanent revocation may not be waived by the commissioner 13 under any circumstances. 14 (2) Civil penalties. Except as otherwise provided, any person whose 15 license, permit to drive, or any non-resident operating privilege is 16 revoked pursuant to the provisions of this section shall also be liable 17 for a civil penalty in the amount of five hundred dollars except that if 18 such revocation is a second or subsequent revocation pursuant to this 19 section issued within a five year period, or such person has been 20 convicted of a violation of any subdivision of section eleven hundred 21 ninety-two of this article within the past five years not arising out of 22 the same incident, the civil penalty shall be in the amount of seven 23 hundred fifty dollars. Any person whose license is revoked pursuant to 24 the provisions of this section based upon a finding of refusal to submit 25 to a chemical test or an evaluation conducted by a certified drug recog- 26 nition expert or any portion thereof while operating a commercial motor 27 vehicle shall also be liable for a civil penalty of five hundred fifty 28 dollars except that if such person has previously been found to have 29 refused a chemical test or an evaluation conducted by a certified drug 30 recognition expert or any portion thereof pursuant to this section while 31 operating a commercial motor vehicle or has a prior conviction of any of 32 the following offenses while operating a commercial motor vehicle: any 33 violation of section eleven hundred ninety-two of this article; any 34 violation of subdivision two of section six hundred of this chapter; or 35 has a prior conviction of any felony involving the use of a commercial 36 motor vehicle pursuant to paragraph (a) of subdivision one of section 37 five hundred ten-a of this chapter, then the civil penalty shall be 38 seven hundred fifty dollars. No new driver's license or permit shall be 39 issued, or non-resident operating privilege restored to such person 40 unless such penalty has been paid. All penalties collected by the 41 department pursuant to the provisions of this section shall be the prop- 42 erty of the state and shall be paid into the general fund of the state 43 treasury. 44 (3) Effect of rehabilitation program. No period of revocation arising 45 out of this section may be set aside by the commissioner for the reason 46 that such person was a participant in the alcohol and drug rehabili- 47 tation program set forth in section eleven hundred ninety-six of this 48 article. 49 (e) Regulations. The commissioner shall promulgate such rules and 50 regulations as may be necessary to effectuate the provisions of subdivi- 51 sions one and two of this section. 52 (f) Evidence. Evidence of a refusal to submit to such chemical test or 53 an evaluation conducted by a certified drug recognition expert or any 54 portion thereof shall be admissible in any trial, proceeding or hearing 55 based upon a violation of the provisions of section eleven hundred nine- 56 ty-two of this article but only upon a showing that the person was given 
 A. 8599 12 1 sufficient warning, in clear and unequivocal language, of the effect of 2 such refusal and that the person persisted in the refusal. Evidence of 3 a refusal shall be admissible pursuant to this section regardless of the 4 time of the refusal. 5 (g) Results. Upon the request of the person who was tested, the 6 results of such test shall be made available to such person. 7 3. Compulsory chemical tests and certified drug recognition evalu- 8 ations. (a) Court ordered chemical tests and certified drug recognition 9 evaluations. Notwithstanding the provisions of subdivision two of this 10 section, no person who operates a motor vehicle in this state may refuse 11 to submit to a chemical test or an evaluation conducted by a certified 12 drug recognition expert of one or more of the following: breath, blood, 13 urine or [saliva] oral fluids, for the purpose of determining the alco- 14 holic and/or drug content of the blood or oral fluids when a court order 15 for such chemical test or certified drug recognition evaluation has been 16 issued in accordance with the provisions of this subdivision. 17 (b) When authorized. Upon refusal by any person to submit to a chemi- 18 cal test or an evaluation conducted by a certified drug recognition 19 expert or any portion thereof as described above, the test or evaluation 20 shall not be given unless a police officer or a district attorney, as 21 defined in subdivision thirty-two of section 1.20 of the criminal proce- 22 dure law, requests and obtains a court order to compel a person to 23 submit to a chemical test or an evaluation conducted by a certified drug 24 recognition expert to determine the alcoholic or drug content of the 25 person's blood or oral fluids upon a finding of reasonable cause to 26 believe that: 27 (1) such person was the operator of a motor vehicle and in the course 28 of such operation [a person other than the operator was killed or 29 suffered serious physical injury as defined in section 10.00 of the 30 penal law]: the motor vehicle was involved in a crash; personal injury 31 has been caused to another person, due to an incident involving the 32 motor vehicle operated by such person; or such person has a previous 33 conviction for a violation of any subdivision of section eleven hundred 34 ninety-two of this article; and 35 (2) a. either such person operated the vehicle in violation of any 36 subdivision of section eleven hundred ninety-two of this article, or 37 b. a breath test or oral fluid test administered by a police officer 38 in accordance with paragraph (b) of subdivision one of this section 39 indicates that alcohol or a drug or drugs has been consumed by such 40 person; and 41 (3) such person has been placed under lawful arrest; and 42 (4) such person has refused to submit to a chemical test or an evalu- 43 ation conducted by a recognition expert, or any portion thereof, 44 requested in accordance with the provisions of paragraph (a) of subdivi- 45 sion two of this section or is unable to give consent to such a test or 46 evaluation. 47 (c) Reasonable cause; definition. For the purpose of this subdivision 48 "reasonable cause" shall be determined by viewing the totality of 49 circumstances surrounding the incident which, when taken together, indi- 50 cate that the operator was driving in violation of section eleven 51 hundred ninety-two of this article. Such circumstances may include, but 52 are not limited to: evidence that the operator was operating a motor 53 vehicle in violation of any provision of this article or any other 54 moving violation at the time of the incident; any visible indication of 55 alcohol or drug consumption or impairment by the operator; the existence 56 of an open container containing an alcoholic beverage or a drug or drugs 
 A. 8599 13 1 in or around the vehicle driven by the operator; any other evidence 2 surrounding the circumstances of the incident which indicates that the 3 operator has been operating a motor vehicle while impaired by the 4 consumption of alcohol or drugs or intoxicated at the time of the inci- 5 dent. 6 (d) Court order; procedure. (1) An application for a court order to 7 compel submission to a chemical test or an evaluation conducted by a 8 certified drug recognition expert, or any portion thereof, may be made 9 to any supreme court justice, county court judge or district court judge 10 in the judicial district in which the incident occurred, or if the inci- 11 dent occurred in the city of New York before any supreme court justice 12 or judge of the criminal court of the city of New York. Such application 13 may be communicated by telephone, radio or other means of electronic 14 communication, or in person. 15 (2) The applicant must provide identification by name and title and 16 must state the purpose of the communication. Upon being advised that an 17 application for a court order to compel submission to a chemical test or 18 an evaluation conducted by a certified drug recognition expert is being 19 made, the court shall place under oath the applicant and any other 20 person providing information in support of the application as provided 21 in subparagraph three of this paragraph. After being sworn the applicant 22 must state that the person from whom the chemical test or an evaluation 23 conducted by a certified drug recognition expert was requested was the 24 operator of a motor vehicle and in the course of such operation [a 25 person, other than the operator, has been killed or seriously injured] 26 the motor vehicle was involved in a crash, personal injury has been 27 caused to another person due to an incident involving the motor vehicle 28 operated by such person, or such person has a previous arrest for a 29 violation of any subdivision of section eleven hundred ninety-two of 30 this article, and, based upon the totality of circumstances, there is 31 reasonable cause to believe that such person was operating a motor vehi- 32 cle in violation of any subdivision of section eleven hundred ninety-two 33 of this article and, after being placed under lawful arrest such person 34 refused to submit to a chemical test or an evaluation conducted by a 35 certified drug recognition expert, or any portion thereof, in accordance 36 with the provisions of this section or is unable to give consent to such 37 a test or evaluation or any portion thereof. The applicant must make 38 specific allegations of fact to support such statement. Any other person 39 properly identified, may present sworn allegations of fact in support of 40 the applicant's statement. 41 (3) Upon being advised that an oral application for a court order to 42 compel a person to submit to a chemical test or an evaluation conducted 43 by a certified drug recognition expert is being made, a judge or justice 44 shall place under oath the applicant and any other person providing 45 information in support of the application. Such oath or oaths and all of 46 the remaining communication must be recorded, either by means of a voice 47 recording device or verbatim stenographic or verbatim longhand notes. If 48 a voice recording device is used or a stenographic record made, the 49 judge must have the record transcribed, certify to the accuracy of the 50 transcription and file the original record and transcription with the 51 court within seventy-two hours of the issuance of the court order. If 52 the longhand notes are taken, the judge shall subscribe a copy and file 53 it with the court within twenty-four hours of the issuance of the order. 54 (4) If the court is satisfied that the requirements for the issuance 55 of a court order pursuant to the provisions of paragraph (b) of this 56 subdivision have been met, it may grant the application and issue an 
 A. 8599 14 1 order requiring the accused to submit to a chemical test or an evalu- 2 ation conducted by a certified drug recognition expert to determine the 3 alcoholic and/or drug content of [his] their blood [and] or oral fluids 4 and ordering the withdrawal of a blood or oral fluid sample in accord- 5 ance with the provisions of paragraph (a) of subdivision four of this 6 section. When a judge or justice determines to issue an order to compel 7 submission to a chemical test or an evaluation conducted by a certified 8 drug recognition expert based on an oral application, the applicant 9 therefor shall prepare the order in accordance with the instructions of 10 the judge or justice. In all cases the order shall include the name of 11 the issuing judge or justice, the name of the applicant, and the date 12 and time it was issued. It must be signed by the judge or justice if 13 issued in person, or by the applicant if issued orally. 14 (5) Any false statement by an applicant or any other person in support 15 of an application for a court order shall subject such person to the 16 offenses for perjury set forth in article two hundred ten of the penal 17 law. 18 (6) The chief administrator of the courts shall establish a schedule 19 to provide that a sufficient number of judges or justices will be avail- 20 able in each judicial district to hear oral applications for court 21 orders as permitted by this section. 22 (e) Administration of compulsory chemical test or certified drug 23 recognition evaluation. An order issued pursuant to the provisions of 24 this subdivision shall require that a chemical test or an evaluation 25 conducted by a certified drug recognition expert to determine the alco- 26 holic and/or drug content of the operator's blood or oral fluid must be 27 administered. The provisions of paragraphs (a), (b) and (c) of subdivi- 28 sion four of this section shall be applicable to any chemical test or 29 evaluation conducted by a certified drug recognition expert administered 30 pursuant to this section. 31 4. Testing procedures. (a) Persons authorized to withdraw blood; immu- 32 nity; testimony. (1) At the request of a police officer, the following 33 persons may withdraw blood for the purpose of determining the alcoholic 34 or drug content therein: (i) a physician, a registered professional 35 nurse, a registered physician assistant, a certified nurse practitioner, 36 or an advanced emergency medical technician as certified by the depart- 37 ment of health; or (ii) under the supervision and at the direction of a 38 physician, registered physician assistant or certified nurse practition- 39 er acting within [his or her] their lawful scope of practice, or upon 40 the express consent of the person eighteen years of age or older from 41 whom such blood is to be withdrawn: a clinical laboratory technician or 42 clinical laboratory technologist licensed pursuant to article one 43 hundred sixty-five of the education law; a phlebotomist; or a medical 44 laboratory technician or medical technologist employed by a clinical 45 laboratory approved under title five of article five of the public 46 health law. This limitation shall not apply to the taking of a urine, 47 [saliva] oral fluid or breath specimen. 48 (2) No person entitled to withdraw blood pursuant to subparagraph one 49 of this paragraph or hospital employing such person, and no other 50 employer of such person shall be sued or held liable for any act done or 51 omitted in the course of withdrawing blood at the request of a police 52 officer pursuant to this section. 53 (3) Any person who may have a cause of action arising from the with- 54 drawal of blood as aforesaid, for which no personal liability exists 55 under subparagraph two of this paragraph, may maintain such action 56 against the state if any person entitled to withdraw blood pursuant to 
 A. 8599 15 1 paragraph (a) hereof acted at the request of a police officer employed 2 by the state, or against the appropriate political subdivision of the 3 state if such person acted at the request of a police officer employed 4 by a political subdivision of the state. No action shall be maintained 5 pursuant to this subparagraph unless notice of claim is duly filed or 6 served in compliance with law. 7 (4) Notwithstanding the foregoing provisions of this paragraph an 8 action may be maintained by the state or a political subdivision thereof 9 against a person entitled to withdraw blood pursuant to subparagraph one 10 of this paragraph or hospital employing such person for whose act or 11 omission the state or the political subdivision has been held liable 12 under this paragraph to recover damages, not exceeding the amount 13 awarded to the claimant, that may have been sustained by the state or 14 the political subdivision by reason of gross negligence or bad faith on 15 the part of such person. 16 (5) The testimony of any person other than a physician, entitled to 17 withdraw blood pursuant to subparagraph one of this paragraph, in 18 respect to any such withdrawal of blood made by such person may be 19 received in evidence with the same weight, force and effect as if such 20 withdrawal of blood were made by a physician. 21 (6) The provisions of subparagraphs two, three and four of this para- 22 graph shall also apply with regard to any person employed by a hospital 23 as security personnel for any act done or omitted in the course of with- 24 drawing blood at the request of a police officer pursuant to a court 25 order in accordance with subdivision three of this section. 26 (b) Right to additional test. The person tested shall be permitted to 27 choose a physician to administer a chemical test in addition to the one 28 administered at the direction of the police officer. 29 (c) Rules and regulations. The department of health shall issue and 30 file rules and regulations approving satisfactory techniques or methods 31 of conducting chemical analyses of a person's blood, urine, breath or 32 [saliva] oral fluid and to ascertain the qualifications and competence 33 of individuals to conduct and supervise chemical analyses of a person's 34 blood, urine, breath or [saliva] oral fluid. If the analyses were made 35 by an individual possessing a permit issued by the department of health, 36 this shall be presumptive evidence that the examination was properly 37 given. The provisions of this paragraph do not prohibit the introduction 38 as evidence of an analysis made by an individual other than a person 39 possessing a permit issued by the department of health. 40 § 10. Paragraph (a) of subdivision 1 of section 1194-a of the vehicle 41 and traffic law, as added by chapter 196 of the laws of 1996, is amended 42 to read as follows: 43 (a) Whenever a chemical test of the breath, blood, urine or [saliva] 44 oral fluid of an operator who is under the age of twenty-one indicates 45 that such person has operated a motor vehicle in violation of section 46 eleven hundred ninety-two-a of this article, and such person is not 47 charged with violating any subdivision of section eleven hundred nine- 48 ty-two arising out of the same incident, the police officer who adminis- 49 tered the test shall forward a report of the results of such test to the 50 department within twenty-four hours of the time when such results are 51 available in a manner prescribed by the commissioner, and the operator 52 shall be given a hearing notice as provided in subdivision one-a of this 53 section, to appear before a hearing officer in the county where the 54 chemical test was administered, or in an adjoining county under such 55 circumstances as prescribed by the commissioner, on a date to be estab- 56 lished in accordance with a schedule promulgated by the commissioner. 
 A. 8599 16 1 Such hearing shall occur within thirty days of, but not less than 2 forty-eight hours from, the date that the chemical test was adminis- 3 tered, provided, however, where the commissioner determines, based upon 4 the availability of hearing officers and the anticipated volume of hear- 5 ings at a particular location, that the scheduling of such hearing with- 6 in thirty days would impair the timely scheduling or conducting of other 7 hearings pursuant to this chapter, such hearing shall be scheduled at 8 the next hearing date for such particular location. When providing the 9 operator with such hearing notice, the police officer shall also give to 10 the operator, and shall, prior to the commencement of the hearing, 11 provide to the department, copies of the following reports, documents 12 and materials: any written report or document, or portion thereof, 13 concerning a physical examination, a scientific test or experiment, 14 including the most recent record of inspection, or calibration or repair 15 of machines or instruments utilized to perform such scientific tests or 16 experiments and the certification certificate, if any, held by the oper- 17 ator of the machine or instrument, which tests or examinations were made 18 by or at the request or direction of a public servant engaged in law 19 enforcement activity. The report of the police officer shall be verified 20 by having the report sworn to, or by affixing to such report a form 21 notice that false statements made therein are punishable as a class A 22 misdemeanor pursuant to section 210.45 of the penal law and such form 23 notice together with the subscription of the deponent shall constitute 24 verification of the report. 25 § 11. Subdivision 2 of section 1198-a of the vehicle and traffic law, 26 as amended by chapter 496 of the laws of 2009, is amended to read as 27 follows: 28 2. Procedure. (a) Mandatory screening; when authorized. Upon the 29 arraignment of, or at the discretion of the court, prior to the sentenc- 30 ing of any person who (i) at arraignment is charged with or prior to 31 sentencing convicted of a first violation of operating a motor vehicle 32 in violation of subdivision one, two or three or paragraph (b) of subdi- 33 vision two-a of section eleven hundred ninety-two of this article while 34 such person has less than .15 of one per centum by weight of alcohol in 35 the person's blood as shown by chemical analysis of such person's blood, 36 breath, urine or [saliva] oral fluid, or by an evaluation conducted by a 37 certified drug recognition expert, or any portion thereof made pursuant 38 to the provisions of section eleven hundred ninety-four of this article, 39 or in violation of subdivision four of such section eleven hundred nine- 40 ty-two, or (ii) has refused to submit to a chemical test or evaluation 41 conducted by a certified drug recognition expert pursuant to section 42 eleven hundred ninety-four of this article, the court shall order such 43 person to submit to screening for alcohol or substance abuse and depend- 44 ency using a standardized written screening instrument developed by the 45 office of [alcoholism and substance abuse services] addiction services 46 and supports, to be administered by an alcohol or substance abuse 47 professional. 48 (b) Mandatory assessment; when authorized. The court shall order a 49 defendant to undergo a formal alcohol or substance abuse and dependency 50 assessment by an alcohol or substance abuse professional or a licensed 51 agency: (i) when the screening required by paragraph (a) of this subdi- 52 vision indicates that a defendant is abusing or dependent upon alcohol 53 or drugs; (ii) following the arraignment of any person charged with or, 54 at the discretion of the court, prior to the sentencing of any person 55 convicted of a violation of subdivision one, two, three, four or four-a 56 of section eleven hundred ninety-two of this article after having been 
 A. 8599 17 1 convicted of a violation of any subdivision of section eleven hundred 2 ninety-two of this article or of vehicular assault in the second or 3 first degree, as defined, respectively, in sections 120.03 and 120.04 of 4 the penal law or of aggravated vehicular assault, as defined in section 5 120.04-a of the penal law or of vehicular manslaughter in the second or 6 first degree, as defined, respectively, in sections 125.12 and 125.13 of 7 the penal law or of aggravated vehicular homicide, as defined in section 8 125.14 of such law within the preceding five years or after having been 9 convicted of a violation of any subdivision of such section or of vehic- 10 ular assault in the second or first degree, as defined, respectively, in 11 sections 120.03 and 120.04 of the penal law or of aggravated vehicular 12 assault, as defined in section 120.04-a of the penal law or of vehicular 13 manslaughter in the second or first degree, as defined, respectively, in 14 sections 125.12 and 125.13 of the penal law or of aggravated vehicular 15 homicide, as defined in section 125.14 of such law, two or more times 16 within the preceding ten years; or (iii) following the arraignment of 17 any person charged with or, at the discretion of the court, prior to the 18 sentencing of any person convicted of operating a motor vehicle in 19 violation of subdivision two or three or paragraph (b) of subdivision 20 two-a of section eleven hundred ninety-two of this article while such 21 person has .15 of one per centum or more by weight of alcohol in the 22 person's blood as shown by a chemical analysis of such person's blood, 23 breath, urine or [saliva] oral fluid made pursuant to the provisions of 24 section eleven hundred ninety-four of this article or in violation of 25 paragraph (a) of subdivision two-a of section eleven hundred ninety-two 26 of this article. 27 (c) Mandatory assessment; procedure. The assessment ordered by a court 28 pursuant to this section shall be performed by an alcohol or substance 29 abuse professional or a licensed agency which shall forward the results, 30 in writing, to the court and to the defendant or [his or her] their 31 counsel within thirty days of the date of such order. 32 § 12. Paragraph (b) of subdivision 1 of section 1242-a of the vehicle 33 and traffic law, as added by section 9 of part XX of chapter 58 of the 34 laws of 2020, is amended to read as follows: 35 (b) Operating a bicycle with electric assist while intoxicated; per 36 se. No person shall operate a bicycle with electric assist while such 37 person has .08 of one per centum or more by weight of alcohol in the 38 person's blood as shown by chemical analysis of such person's blood, 39 breath, urine or [saliva] oral fluid, made pursuant to the provisions of 40 subdivision five of this section. 41 § 13. Paragraph (b) of subdivision 4 of section 1242-a of the vehicle 42 and traffic law, as added by section 9 of part XX of chapter 58 of the 43 laws of 2020, is amended to read as follows: 44 (b) Field testing. Every person operating a bicycle with electric 45 assist which has been involved in an accident shall, at the request of a 46 police officer, submit to a breath test or oral fluid test to be admin- 47 istered by the police officer. If such test indicates that such operator 48 has consumed alcohol or a drug or drugs, the police officer may request 49 such operator to submit to a chemical test or an evaluation conducted by 50 a certified drug recognition expert in the manner set forth in subdivi- 51 sion five of this section. 52 § 14. Subdivision 5 of section 1242-a of the vehicle and traffic law, 53 as added by section 9 of part XX of chapter 58 of the laws of 2020, is 54 amended to read as follows: 55 5. Chemical tests and drug recognition evaluations; when authorized. A 56 police officer may request any person who operates a bicycle with elec- 
 A. 8599 18 1 tric assist in this state to consent to a chemical test or an evaluation 2 conducted by a certified drug recognition expert of one or more of the 3 following: breath, blood, urine, or [saliva] oral fluid, for the purpose 4 of determining the alcoholic and/or drug content of such person's blood, 5 provided that such test is administered at the direction of a police 6 officer with respect to a chemical test of breath, urine or [saliva] 7 oral fluid or, with respect to a chemical test of blood, at the direc- 8 tion of a police officer: (a) having reasonable grounds to believe such 9 person to have been operating in violation of paragraph (a), (b), (c), 10 (d) or (e) of subdivision one of this section and within two hours after 11 such person has been placed under arrest for any such violation; or (b) 12 within two hours after a breath test or oral fluid test, as provided in 13 paragraph (b) of subdivision four of this section, indicates that alco- 14 hol [has] or a drug or drugs have been consumed by such person and in 15 accordance with the rules and regulations established by the police 16 force of which the officer is a member. 17 § 15. Subparagraph (i) of paragraph (a) and paragraph (c) of subdivi- 18 sion 6 of section 1242-a of the vehicle and traffic law, as added by 19 section 9 of part XX of chapter 58 of the laws of 2020, are amended to 20 read as follows: 21 (i) At the request of a police officer, the following persons may 22 withdraw blood for the purpose of determining the alcoholic or drug 23 content therein: (A) a physician, a registered professional nurse, a 24 registered physician assistant, a certified nurse practitioner, or an 25 advanced emergency medical technician as certified by the department of 26 health; or (B) under the supervision and at the direction of a physi- 27 cian, registered physician assistant or certified nurse practitioner 28 acting within [his or her] their lawful scope of practice, or upon the 29 express consent of the person eighteen years of age or older from whom 30 such blood is to be withdrawn: a clinical laboratory technician or clin- 31 ical laboratory technologist licensed pursuant to article one hundred 32 sixty-five of the education law; a phlebotomist; or a medical laboratory 33 technician or medical technologist employed by a clinical laboratory 34 approved under title five of article five of the public health law. This 35 limitation shall not apply to the taking of a urine, [saliva] oral fluid 36 or breath specimen. 37 (c) Rules and regulations. The department of health shall issue and 38 file rules and regulations approving satisfactory techniques or methods 39 of conducting chemical analyses of a person's blood, urine, breath or 40 [saliva] oral fluid and to ascertain the qualifications and competence 41 of individuals to conduct and supervise chemical analyses of a person's 42 blood, urine, breath or [saliva] oral fluid. If the analyses were made 43 by an individual possessing a permit issued by the department of health, 44 this shall be presumptive evidence that the examination was properly 45 given. The provisions of this paragraph do not prohibit the introduction 46 as evidence of an analysis made by an individual other than a person 47 possessing a permit issued by the department of health. 48 § 16. Subdivision 7 of section 1242-a of the vehicle and traffic law, 49 as added by section 9 of part XX of chapter 58 of the laws of 2020, is 50 amended to read as follows: 51 7. Chemical test and drug recognition evaluation evidence. (a) Admis- 52 sibility. Upon the trial of any such action or proceeding arising out of 53 actions alleged to have been committed by any person arrested for a 54 violation of any paragraph of subdivision one of this section, the court 55 shall admit evidence of the amount of alcohol or drugs in the defend- 56 ant's blood as shown by a test administered or evaluation conducted by a 
 A. 8599 19 1 certified drug recognition expert pursuant to the provisions of subdivi- 2 sion five of this section. 3 (b) Probative value. The following effect shall be given to evidence 4 of blood-alcohol content, as determined by such tests, of a person 5 arrested for a violation of subdivision one of this section: 6 (i) evidence that there was .05 of one per centum or less by weight of 7 alcohol in such person's blood shall be prima facie evidence that the 8 ability of such person to operate a bicycle with electric assist was not 9 impaired by the consumption of alcohol, and that such person was not in 10 an intoxicated condition; 11 (ii) evidence that there was more than .05 of one per centum but less 12 than .07 of one per centum by weight of alcohol in such person's blood 13 shall be prima facie evidence that such person was not in an intoxicated 14 condition, but such evidence shall be relevant evidence, but shall not 15 be given prima facie effect, in determining whether the ability of such 16 person to operate a bicycle with electric assist was impaired by the 17 consumption of alcohol; and 18 (iii) evidence that there was .07 of one per centum or more but less 19 than .08 of one per centum by weight of alcohol in such person's blood 20 shall be prima facie evidence that such person was not in an intoxicated 21 condition, but such evidence shall be given prima facie effect in deter- 22 mining whether the ability of such person to operate a bicycle with 23 electric assist was impaired by the consumption of alcohol. 24 § 17. Paragraph (b) of subdivision 1 of section 1289 of the vehicle 25 and traffic law, as added by section 10 of part XX of chapter 58 of the 26 laws of 2020, is amended to read as follows: 27 (b) Operating an electric scooter while intoxicated; per se. No person 28 shall operate an electric scooter while such person has .08 of one per 29 centum or more by weight of alcohol in the person's blood as shown by 30 chemical analysis of such person's blood, breath, urine or [saliva] oral 31 fluid, made pursuant to the provisions of subdivision five of this 32 section. 33 § 18. Paragraph (b) of subdivision 4 of section 1289 of the vehicle 34 and traffic law, as added by section 10 of part XX of chapter 58 of the 35 laws of 2020, is amended to read as follows: 36 (b) Field testing. Every person operating an electric scooter which 37 has been involved in an accident shall, at the request of a police offi- 38 cer, submit to a breath test or oral fluid test to be administered by 39 the police officer. If such test indicates that such operator has 40 consumed alcohol or a drug or drugs, the police officer may request such 41 operator to submit to a chemical test or an evaluation conducted by a 42 certified drug recognition expert in the manner set forth in subdivision 43 five of this section. 44 § 19. Subdivision 5 of section 1289 of the vehicle and traffic law, 45 as added by section 10 of part XX of chapter 58 of the laws of 2020, is 46 amended to read as follows: 47 5. Chemical tests and drug recognition evaluations; when authorized. A 48 police officer may request any person who operates an electric scooter 49 in this state to consent to a chemical test or an evaluation conducted 50 by a certified drug recognition expert of one or more of the following: 51 breath, blood, urine, or [saliva] oral fluid, for the purpose of deter- 52 mining the alcoholic and/or drug content of such person's blood, 53 provided that such test is administered at the direction of a police 54 officer with respect to a chemical test of breath, urine or [saliva] 55 oral fluid or, with respect to a chemical test of blood, at the direc- 56 tion of a police officer: (a) having reasonable grounds to believe such 
 A. 8599 20 1 person to have been operating in violation of paragraph (a), (b), (c), 2 (d) or (e) of subdivision one of this section and within two hours after 3 such person has been placed under arrest for any such violation; or (b) 4 within two hours after a breath test or oral fluid test, as provided in 5 paragraph (b) of subdivision four of this section, indicates that alco- 6 hol [has] or a drug or drugs have been consumed by such person and in 7 accordance with the rules and regulations established by the police 8 force of which the officer is a member. 9 § 20. Subparagraph (i) of paragraph (a) and paragraph (c) of subdivi- 10 sion 6 of section 1289 of the vehicle and traffic law, as added by 11 section 10 of part XX of chapter 58 of the laws of 2020, is amended to 12 read as follows: 13 (i) At the request of a police officer, the following persons may 14 withdraw blood for the purpose of determining the alcoholic or drug 15 content therein: (A) a physician, a registered professional nurse, a 16 registered physician assistant, a certified nurse practitioner, or an 17 advanced emergency medical technician as certified by the department of 18 health; or (B) under the supervision and at the direction of a physi- 19 cian, registered physician assistant or certified nurse practitioner 20 acting within [his or her] their lawful scope of practice, or upon the 21 express consent of the person eighteen years of age or older from whom 22 such blood is to be withdrawn: a clinical laboratory technician or clin- 23 ical laboratory technologist licensed pursuant to article one hundred 24 sixty-five of the education law; a phlebotomist; or a medical laboratory 25 technician or medical technologist employed by a clinical laboratory 26 approved under title five of article five of the public health law. This 27 limitation shall not apply to the taking of a urine, [saliva] oral fluid 28 or breath specimen. 29 (c) Rules and regulations. The department of health shall issue and 30 file rules and regulations approving satisfactory techniques or methods 31 of conducting chemical analyses of a person's blood, urine, breath or 32 [saliva] oral fluid and to ascertain the qualifications and competence 33 of individuals to conduct and supervise chemical analyses of a person's 34 blood, urine, breath or [saliva] oral fluid. If the analyses were made 35 by an individual possessing a permit issued by the department of health, 36 this shall be presumptive evidence that the examination was properly 37 given. The provisions of this paragraph do not prohibit the introduction 38 as evidence of an analysis made by an individual other than a person 39 possessing a permit issued by the department of health. 40 § 21. Subdivision 7 of section 1289 of the vehicle and traffic law, as 41 added by section 10 of part XX of chapter 58 of the laws of 2020, is 42 amended to read as follows: 43 7. Chemical test and drug recognition evaluation evidence. (a) Admis- 44 sibility. Upon the trial of any such action or proceeding arising out of 45 actions alleged to have been committed by any person arrested for a 46 violation of any paragraph of subdivision one of this section, the court 47 shall admit evidence of the amount of alcohol or drugs in the defend- 48 ant's blood as shown by a test administered or evaluation conducted by a 49 certified drug recognition expert pursuant to the provisions of subdivi- 50 sion five of this section. 51 (b) Probative value. The following effect shall be given to evidence 52 of blood-alcohol content, as determined by such tests, of a person 53 arrested for a violation of subdivision one of this section: 54 (i) evidence that there was .05 of one per centum or less by weight of 55 alcohol in such person's blood shall be prima facie evidence that the 56 ability of such person to operate an electric scooter was not impaired 
 A. 8599 21 1 by the consumption of alcohol, and that such person was not in an intox- 2 icated condition; 3 (ii) evidence that there was more than .05 of one per centum but less 4 than .07 of one per centum by weight of alcohol in such person's blood 5 shall be prima facie evidence that such person was not in an intoxicated 6 condition, but such evidence shall be relevant evidence, but shall not 7 be given prima facie effect, in determining whether the ability of such 8 person to operate an electric scooter was impaired by the consumption of 9 alcohol; and 10 (iii) evidence that there was .07 of one per centum or more but less 11 than .08 of one per centum by weight of alcohol in such person's blood 12 shall be prima facie evidence that such person was not in an intoxicated 13 condition, but such evidence shall be given prima facie effect in deter- 14 mining whether the ability of such person to operate an electric scooter 15 was impaired by the consumption of alcohol. 16 § 22. Paragraph (s) of subdivision 1 of section 245.20 of the criminal 17 procedure law, as added by section 2 of part LLL of chapter 59 of the 18 laws of 2019, is amended to read as follows: 19 (s) In any prosecution alleging a violation of the vehicle and traffic 20 law, where the defendant is charged by indictment, superior court infor- 21 mation, prosecutor's information, information, or simplified informa- 22 tion, all records of calibration, certification, inspection, repair or 23 maintenance of machines and instruments utilized to perform any scien- 24 tific tests, evaluations and experiments, including but not limited to 25 any test of a person's breath, blood, urine or [saliva] oral fluid, for 26 the period of six months prior and six months after such test, evalu- 27 ation or experiment was conducted, including the records of gas chroma- 28 tography related to the certification of all reference standards and the 29 certification certificate, if any, held by the operator of the machine 30 or instrument. The time period required by subdivision one of section 31 245.10 of this article shall not apply to the disclosure of records 32 created six months after a test, evaluation or experiment was conducted, 33 but such disclosure shall be made as soon as practicable and in any 34 event, the earlier of fifteen days following receipt, or fifteen days 35 before the first scheduled trial date. 36 § 23. Subdivision 2 of section 11-1201 of the environmental conserva- 37 tion law, as amended by chapter 388 of the laws of 2019, is amended to 38 read as follows: 39 2. "Intoxicated condition" shall mean the presence of .08 of one per 40 centum or more by weight of alcohol in a person's blood as shown by 41 chemical analyses of [his] such person's blood, breath, urine, or [sali- 42 va] oral fluid made pursuant to section 11-1205 of this title. An 43 "impaired condition" shall mean a state of impairment of a person's 44 capacity to think or act correctly, or of a loss, even in part of a 45 person's control of [his] their physical or mental faculties due to 46 [his] their consumption of alcohol or use of a drug. 47 § 24. Subdivisions 2, 3, 4, 5 and 6 of section 11-1205 of the environ- 48 mental conservation law, as added by chapter 726 of the laws of 1977, 49 subdivisions 3, 4 and 5 as amended by section 29 of part R of chapter 58 50 of the laws of 2013, are amended to read as follows: 51 2. Any person engaged in hunting in this state shall be deemed to have 52 given [his] their consent to a chemical test or an evaluation conducted 53 by a certified drug recognition expert of [his] such person's breath, 54 blood, urine, or [saliva] oral fluid for the purpose of determining the 55 alcoholic or drug content of [his] such person's blood, provided that 56 such test or evaluation is administered at the direction of a police 
 A. 8599 22 1 officer or officer of the department of environmental conservation: (a) 2 having reasonable grounds to believe such person to have been engaged in 3 hunting in violation of any subdivision of section 11-1203 of this 4 title, and within two hours after such person has been placed under 5 arrest for any such violation, or (b) within two hours after a breath 6 test or oral fluid test, administered pursuant to the provisions of 7 subdivision one of this section, indicates that [alchohol has] alcohol 8 or a drug or drugs have been consumed by such person, and in accordance 9 with the rules and regulations established by the law enforcement unit 10 of which the administering officer is a member. 11 3. If such person, having been placed under arrest or after a breath 12 test or oral fluid test indicates the presence of alcohol or a drug or 13 drugs in [his] such person's system and having thereafter been requested 14 to submit to a chemical test or an evaluation conducted by a certified 15 drug recognition expert, refuses to submit to such chemical test or 16 evaluation, the test or evaluation shall not be given, and a report of 17 such refusal shall be forwarded by the officer under whose direction the 18 test was requested to the department of environmental conservation with- 19 in seventy-two hours and the department shall revoke all licenses, 20 bowhunting privileges, muzzle-loading privileges, and permits to hunt 21 which such person may possess; provided, however, that such revocation 22 shall become effective only after a hearing held by the department upon 23 notice to such person, unless such hearing is waived by such person. 24 4. A license, bowhunting privilege, muzzle-loading privilege, or 25 permit to hunt may, upon the basis of a report, verified as hereinafter 26 provided, of the administering officer that [he] they had reasonable 27 grounds to believe such person to have been engaged in conduct in 28 violation of any subdivision of section 11-1203 of this title and that 29 said person had refused to submit to such test or evaluation, be tempo- 30 rarily suspended without notice pending the determination upon any such 31 hearing. Such report may be verified by having the report sworn to, or 32 by affixing to such report a form notice that false statements made 33 therein are punishable as a class A misdemeanor pursuant to section 34 210.45 of the penal law and such form notice together with the signature 35 of the deponent shall constitute a verification of the report. 36 5. No license, bowhunting privilege, muzzle-loading privilege, or 37 permit to hunt shall be revoked because of a refusal to submit to such 38 chemical test or evaluation conducted by a certified drug recognition 39 expert if the hearing officer is satisfied that the person requested to 40 submit to such chemical test or evaluation had not been warned prior to 41 such refusal to the effect that a refusal to submit to such chemical 42 test or evaluation may result in the revocation of such license, 43 bowhunting privilege, muzzle-loading privilege, or permit to hunt wheth- 44 er or not [he is] they are found guilty of the charge for which [he has] 45 they have been arrested. 46 6. The department of health shall issue and file rules and regulations 47 approving satisfactory techniques or methods, to ascertain the quali- 48 fications and competence of individuals to conduct and supervise chemi- 49 cal analyses of a person's blood, urine, breath or [saliva] oral fluid. 50 If the analyses were made by an individual possessing a permit issued by 51 the department of health, this shall be presumptive evidence that the 52 examination was properly given. The provisions of this subdivision do 53 not prohibit the introduction as evidence of an analysis made by an 54 individual other than a person possessing a permit issued by the depart- 55 ment of health. 
 A. 8599 23 1 § 25. Paragraphs (b) and (c) of subdivision 2 of section 49-a of the 2 navigation law, as amended by chapter 151 of the laws of 2006, are 3 amended to read as follows: 4 (b) No such person shall operate a vessel other than a public vessel 5 while [he has] they have .08 of one per centum or more by weight of 6 alcohol in [his] such person's blood, breath, urine, or [saliva] oral 7 fluid, as determined by the chemical test or evaluation conducted by a 8 certified drug recognition expert made pursuant to the provisions of 9 subdivision seven of this section. 10 (c) No such person shall operate a public vessel while [he has] they 11 have .04 of one per centum or more by weight of alcohol in [his] such 12 person's blood, breath, urine, or [saliva] oral fluid, as determined by 13 the chemical test or evaluation conducted by a certified drug recogni- 14 tion expert made pursuant to the provisions of subdivision seven of this 15 section. 16 § 26. Paragraph (b) of subdivision 6 of section 49-a of the navigation 17 law, as added by chapter 805 of the laws of 1992, is amended to read as 18 follows: 19 (b) Breath test or oral fluid test for operators of vessel. Every 20 person operating a vessel on the waters of the state which has been 21 involved in an accident or which is operated in violation of any of the 22 provisions of this section which regulate the manner in which a vessel 23 is to be properly operated while underway shall, at the request of a 24 police officer, submit to a breath test or oral fluid test to be admin- 25 istered by the police officer. If such test indicates that such operator 26 has consumed alcohol or a drug or drugs, the police officer may request 27 such operator to submit to a chemical test or evaluation conducted by a 28 certified drug recognition expert in the manner set forth in subdivision 29 seven of this section. For the purposes of this section, a vessel is 30 being "operated" only when such vessel is underway and is being 31 propelled in whole or in part by mechanical power. 32 § 27. Subdivisions 7, 8, 9 and 10 of section 49-a of the navigation 33 law, as added by chapter 805 of the laws of 1992, paragraph (a) of 34 subdivision 7 as amended by chapter 688 of the laws of 2022, subpara- 35 graph 1 of paragraph (d) of subdivision 7 as amended by chapter 391 of 36 the laws of 1998, subparagraph 2 of paragraph (d) of subdivision 7 as 37 amended by chapter 309 of the laws of 1996, and subparagraphs 2 and 3 of 38 paragraph (b) of subdivision 10 as amended by chapter 458 of the laws of 39 2003, are amended to read as follows: 40 7. Chemical tests and certified drug recognition evaluations. (a) Any 41 person who operates a vessel on the waters of the state shall be 42 requested to consent to a chemical test or an evaluation conducted by a 43 certified drug recognition expert of one or more of the following: 44 breath, blood, urine, or [saliva] oral fluid for the purpose of deter- 45 mining the alcoholic or drug content of [his] such person's blood, 46 provided that such test or evaluation is administered at the direction 47 of a police officer: (1) having reasonable cause to believe such person 48 to have been operating in violation of this subdivision or paragraph 49 (a), (b), (c), (d), (e) or (e-1) of subdivision two of this section and 50 within two hours after such person has been placed under arrest for any 51 such violation or (2) within two hours after a breath test or oral fluid 52 test as provided in paragraph (b) of subdivision six of this section 53 indicates that alcohol [has] or a drug or drugs have been consumed by 54 such person and in accordance with the rules and regulations established 55 by the police force of which the officer is a member. 
 A. 8599 24 1 (b) If such person having been placed under arrest or after a breath 2 test or oral fluid test indicates the presence of alcohol or a drug or 3 drugs in the person's system and having thereafter been requested to 4 submit to such chemical test or evaluation conducted by a certified drug 5 recognition expert and having been informed that the person's privilege 6 to operate a vessel shall be immediately suspended for refusal to submit 7 to such chemical test or evaluation or any portion thereof, whether or 8 not the person is found guilty of the charge for which such person is 9 arrested, refuses to submit to such chemical test or evaluation or any 10 portion thereof, unless a court order has been granted pursuant to 11 subdivision eight of this section, the test or evaluation shall not be 12 given and a written report of such refusal shall be immediately made by 13 the police officer before whom such refusal was made. Such report may be 14 verified by having the report sworn to, or by affixing to such report a 15 form notice that false statements made therein are punishable as a class 16 A misdemeanor pursuant to section 210.45 of the penal law and such form 17 notice together with the subscription of the deponent shall constitute a 18 verification of the report. The report of the police officer shall set 19 forth reasonable grounds to believe such arrested person to have been 20 operating a vessel in violation of any paragraph of subdivision two of 21 this section, that said person had refused to submit to such chemical 22 test or evaluation, and that no chemical test was administered or evalu- 23 ation conducted pursuant to the requirements of subdivision eight of 24 this section. The report shall be presented to the court upon the 25 arraignment of the arrested person. The privilege to operate a vessel 26 shall, upon the basis of such written report, be temporarily suspended 27 by the court without notice pending the determination of a hearing as 28 provided herein. Copies of such report must be transmitted by the court 29 to the commissioner of parks, recreation and historic preservation and 30 the commissioner of motor vehicles and such transmittal may not be 31 waived even with the consent of all the parties. Such report shall be 32 forwarded to each commissioner within forty-eight hours of such arraign- 33 ment. The court shall provide such person with a hearing date schedule, 34 a waiver form, and such other information as may be required by the 35 commissioner of motor vehicles. If a hearing, as provided for in para- 36 graph (c) of this subdivision, is waived by such person, the commission- 37 er of motor vehicles shall immediately suspend the privilege to operate 38 a vessel, as of the date of receipt of such waiver in accordance with 39 the provisions of paragraph (d) of this subdivision. 40 (c) Any person whose privilege to operate a vessel has been suspended 41 pursuant to paragraph (b) of this subdivision is entitled to a hearing 42 in accordance with a hearing schedule to be promulgated by the commis- 43 sioner of motor vehicles. If the department fails to provide for such 44 hearing fifteen days after the date of the arraignment of the arrested 45 person, the privilege to operate a vessel of such person shall be rein- 46 stated pending a hearing pursuant to this section. The hearing shall be 47 limited to the following issues: (1) did the police officer have reason- 48 able cause to believe that such person had been operating a vessel in 49 violation of any paragraph of subdivision two of this section; (2) did 50 the police officer make a lawful arrest of such person; (3) was such 51 person given sufficient warning, in clear or unequivocal language, prior 52 to such refusal that such refusal to submit to such chemical test or 53 evaluation or any portion thereof, would result in the immediate suspen- 54 sion of such person's privilege to operate a vessel whether or not such 55 person is found guilty of the charge for which the arrest was made; and 56 (4) did such person refuse to submit to such chemical test or evaluation 
 A. 8599 25 1 or any portion thereof. If, after such hearing, the hearing officer, 2 acting on behalf of the commissioner of motor vehicles, finds on any one 3 of said issues in the negative, the hearing officer shall immediately 4 terminate any suspension arising from such refusal. If, after such hear- 5 ing, the hearing officer, acting on behalf of the commissioner of motor 6 vehicles finds all of the issues in the affirmative, such officer shall 7 immediately suspend the privilege to operate a vessel in accordance with 8 the provisions of paragraph (d) of this subdivision. A person who has 9 had the privilege to operate a vessel suspended pursuant to this subdi- 10 vision may appeal the findings of the hearing officer in accordance with 11 the provisions of article three-A of the vehicle and traffic law. Any 12 person may waive the right to a hearing under this section. Failure by 13 such person to appear for the scheduled hearing shall constitute a waiv- 14 er of such hearing, provided, however, that such person may petition the 15 commissioner of motor vehicles for a new hearing which shall be held as 16 soon as practicable. 17 (d) (1) Any privilege to operate a vessel which has been suspended 18 pursuant to paragraph (c) of this subdivision shall not be restored for 19 six months after such suspension. However, no such privilege shall be 20 restored for at least one year after such suspension in any case where 21 the person was under the age of twenty-one at the time of the offense, 22 has had a prior suspension resulting from refusal to submit to a chemi- 23 cal test or an evaluation conducted by a certified drug recognition 24 expert pursuant to this subdivision or subdivision six of section 25 forty-nine-b of this article, or has been convicted of a violation of 26 any paragraph of subdivision two of this section not arising out of the 27 same incident, within the five years immediately preceding the date of 28 such suspension; provided, however, a prior finding that a person under 29 the age of twenty-one has refused to submit to a chemical test or an 30 evaluation conducted by a certified drug recognition expert pursuant to 31 such subdivision six of section forty-nine-b of this article shall have 32 the same effect as a prior finding of a refusal pursuant to this subdi- 33 vision solely for the purpose of determining the length of any suspen- 34 sion required to be imposed under any provision of this article, 35 provided that the subsequent offense or refusal is committed or occurred 36 prior to the expiration of the retention period for such prior refusal 37 as set forth in paragraph (k) of subdivision one of section two hundred 38 one of the vehicle and traffic law. Notwithstanding any provision of 39 this paragraph to the contrary, any privilege to operate a vessel which 40 has been suspended pursuant to paragraph (c) of this subdivision, where 41 the person was under the age of twenty-one at the time of the refusal, 42 and such person under the age of twenty-one has a prior finding, 43 conviction or youthful offender adjudication resulting from a violation 44 of this section or section forty-nine-b of this article, not arising 45 from the same incident, shall not be restored for at least one year or 46 until such person reaches the age of twenty-one years, whichever is the 47 greater period of time. 48 (2) Any person whose privilege to operate a vessel is suspended pursu- 49 ant to the provisions of this subdivision shall also be liable for a 50 civil penalty in the amount of two hundred dollars except that if such 51 suspension is a second or subsequent suspension pursuant to this subdi- 52 vision issued within a five year period, or such person has been 53 convicted of a violation of any paragraph of subdivision two of this 54 section within the past five years not arising out of the same incident, 55 the civil penalty shall be in the amount of five hundred dollars. The 56 privilege to operate a vessel shall not be restored to such person 
 A. 8599 26 1 unless such penalty has been paid. The first one hundred dollars of each 2 penalty collected by the department of motor vehicles pursuant to the 3 provisions of this subdivision shall be paid to the commissioner of 4 motor vehicles for deposit to the general fund and the remainder of all 5 such penalties shall be paid to the commissioner of parks, recreation 6 and historic preservation for deposit in the "I Love NY Waterways" boat- 7 ing safety fund established pursuant to section ninety-seven-nn of the 8 state finance law. 9 (e) The commissioner of motor vehicles in consultation with the 10 commissioner of parks, recreation and historic preservation shall 11 promulgate such rules and regulations as may be necessary to effectuate 12 the provisions of this subdivision. 13 (f) Evidence of a refusal to submit to such chemical test or an evalu- 14 ation conducted by a certified drug recognition expert shall be admissi- 15 ble in any trial, proceeding or hearing based upon a violation of the 16 provisions of this section, but only upon a showing that the person was 17 given sufficient warning, in clear and unequivocal language, of the 18 effect of such refusal and that the person persisted in [his or her] 19 their refusal. 20 (g) Upon the request of the person tested or evaluated, the results of 21 such test or evaluation shall be made available to [him or her] such 22 person. 23 8. Compulsory chemical tests and certified drug recognition evalu- 24 ations. (a) Notwithstanding the provisions of subdivision seven of this 25 section, no person who operates a vessel in the waters of this state may 26 refuse to submit to a chemical test or an evaluation conducted by a 27 certified drug recognition expert of one or more of the following: 28 breath, blood, urine or [saliva] oral fluid, for the purpose of deter- 29 mining the alcoholic and/or drug content of the blood when a court order 30 for such chemical test or evaluation has been issued in accordance with 31 the provisions of this subdivision. 32 (b) Upon refusal by any person to submit to a chemical test or evalu- 33 ation or any portion thereof as described in paragraph (a) of this 34 subdivision, the test or evaluation shall not be given unless a police 35 officer or a district attorney, as defined in subdivision thirty-two of 36 section 1.20 of the criminal procedure law, requests and obtains a court 37 order to compel a person to submit to a chemical test or evaluation to 38 determine the alcoholic or drug content of the person's blood or oral 39 fluid upon a finding of reasonable cause to believe that: 40 (1) such person was the operator of a vessel and in the course of such 41 operation a person other than the operator was killed or suffered seri- 42 ous physical injury as defined in section 10.00 of the penal law; and 43 (2) (i) either such person operated the vessel in violation of any 44 paragraph of subdivision two of this section, or 45 (ii) a breath test or oral fluid test administered by a police officer 46 in accordance with subdivision six of this section indicates that alco- 47 hol [has] or a drug or drugs have been consumed by such person; and 48 (3) such person has been placed under lawful arrest; and 49 (4) such person has refused to submit to a chemical test or an evalu- 50 ation conducted by a certified drug recognition expert or any portion 51 thereof, requested in accordance with the provisions of subdivision 52 seven of this section or is unable to give consent to such a test or 53 evaluation. 54 (c) For the purpose of this subdivision "reasonable cause" shall be 55 determined by viewing the totality of circumstances surrounding the 56 incident which, when taken together, indicate that the operator was 
 A. 8599 27 1 operating a vessel in violation of any paragraph of subdivision two of 2 this section. Such circumstances may include, but are not limited to: 3 evidence that the operator was operating a vessel in violation of any 4 provision of this chapter which regulates the manner in which a vessel 5 is to be properly operated while underway at the time of the incident; 6 any visible indication of alcohol or drug consumption or impairment by 7 the operator; any other evidence surrounding the circumstances of the 8 incident which indicates that the operator has been operating a vessel 9 while impaired by the consumption of alcohol or drugs or was intoxicated 10 at the time of the incident. 11 (d) (1) An application for a court order to compel submission to a 12 chemical test or an evaluation conducted by a certified drug recognition 13 expert or any portion thereof, may be made to any supreme court justice, 14 county court judge or district court judge in the judicial district in 15 which the incident occurred, or if the incident occurred in the city of 16 New York before any supreme court justice or judge of the criminal court 17 of the city of New York. Such application may be communicated by tele- 18 phone, radio or other means of electronic communication, or in person. 19 (2) The applicant must provide identification by name and title and 20 must state the purpose of the communication. Upon being advised that an 21 application for a court order to compel submission to a chemical test or 22 an evaluation conducted by a certified drug recognition expert is being 23 made, the court shall place under oath the applicant and any other 24 person providing information in support of the application as provided 25 in subparagraph three of this paragraph. After being sworn the applicant 26 must state that the person from whom the chemical test or evaluation was 27 requested was the operator of a vessel and in the course of such opera- 28 tion a person, other than the operator, has been killed or seriously 29 injured and, based upon the totality of circumstances, there is reason- 30 able cause to believe that such person was operating a vessel in 31 violation of any paragraph of subdivision two of this section and, after 32 being placed under lawful arrest such person refused to submit to a 33 chemical test or evaluation or any portion thereof, in accordance with 34 the provisions of this section or is unable to give consent to such a 35 test or evaluation or any portion thereof. The applicant must make 36 specific allegations of fact to support such statement. Any other person 37 properly identified, may present sworn allegations of fact in support of 38 the applicant's statement. 39 (3) Upon being advised that an oral application for a court order to 40 compel a person to submit to a chemical test or an evaluation conducted 41 by a certified drug recognition expert is being made, a judge or justice 42 shall place under oath the applicant and any other person providing 43 information in support of the application. Such oath or oaths and all of 44 the remaining communication must be recorded, either by means of a voice 45 recording device or verbatim stenographic or verbatim longhand notes. If 46 a voice recording device is used or a stenographic record made, the 47 judge must have the record transcribed, certify to the accuracy of the 48 transcription and file the original record and transcription with the 49 court within seventy-two hours of the issuance of the court order. If 50 the longhand notes are taken, the judge shall subscribe a copy and file 51 it with the court within twenty-four hours of the issuance of the order. 52 (4) If the court is satisfied that the requirements for the issuance 53 of a court order pursuant to the provisions of paragraph (b) of this 54 subdivision have been met, it may grant the application and issue an 55 order requiring the accused to submit to a chemical test or an evalu- 56 ation conducted by a certified drug recognition expert to determine the 
 A. 8599 28 1 alcoholic and/or drug content of [his] such person's blood and ordering 2 the withdrawal of a blood sample in accordance with the provisions of 3 subdivision nine of this section. When a judge or justice determines to 4 issue an order to compel submission to a chemical test or an evaluation 5 conducted by a certified drug recognition expert based on an oral appli- 6 cation, the applicant therefor shall prepare the order in accordance 7 with the instructions of the judge or justice. In all cases the order 8 shall include the name of the issuing judge or justice, the name of the 9 applicant, and the date and time it was issued. It must be signed by the 10 judge or justice if issued in person, or by the applicant if issued 11 orally. 12 (5) Any false statement by an applicant or any other person in support 13 of an application for a court order shall subject such person to the 14 offenses for perjury set forth in article two hundred ten of the penal 15 law. 16 (e) An order issued pursuant to the provisions of this subdivision 17 shall require that a chemical test or an evaluation conducted by a 18 certified drug recognition expert to determine the alcoholic and/or drug 19 content of the operator's blood must be administered. The provisions of 20 paragraphs (a), (b) and (c) of subdivision nine of this section shall be 21 applicable to any chemical test or evaluation administered pursuant to 22 this section. 23 (f) A defendant who has been compelled to submit to a chemical test or 24 an evaluation conducted by a certified drug recognition expert pursuant 25 to the provisions of this subdivision may move for the suppression of 26 such evidence in accordance with article seven hundred ten of the crimi- 27 nal procedure law on the grounds that the order was obtained and the 28 test administered or evaluation conducted in violation of the provisions 29 of this subdivision or any other applicable law. 30 9. Testing procedures. (a) At the request of a police officer, the 31 following persons may withdraw blood for the purpose of determining the 32 alcohol or drug content therein: (1) a physician, a registered profes- 33 sional nurse or a registered physician's assistant; or (2) under the 34 supervision and at the direction of a physician: a medical laboratory 35 technician or medical technologist as classified by civil service; a 36 phlebotomist; an advanced emergency medical technician as certified by 37 the department of health, or a medical laboratory technician or medical 38 technologist employed by a clinical laboratory approved under title five 39 of article five of the public health law. This limitation shall not 40 apply to the taking of a urine, [saliva] oral fluid or breath specimen. 41 (b) No person entitled to withdraw blood pursuant to paragraph (a) of 42 this subdivision or hospital employing such person and no other employer 43 of such person shall be sued or held liable for any act done or omitted 44 in the course of withdrawing blood at the request of a police officer or 45 peace officer acting pursuant to [his] such officer's special duties 46 pursuant to this subdivision. 47 (c) Any person who may have a cause of action arising from the with- 48 drawal of blood as aforesaid, for which no personal liability exists 49 under paragraph (b) of this subdivision, may maintain such action 50 against the state if the person entitled to withdraw blood pursuant to 51 paragraph (a) of this subdivision acted at the request of a police offi- 52 cer or peace officer acting pursuant to [his] such officer's special 53 duties, employed by the state, or against the appropriate political 54 subdivision of the state if the person acted at the request of a police 55 officer or peace officer acting pursuant to [his] such officer's special 56 duties, employed by a political subdivision of the state. No action 
 A. 8599 29 1 shall be maintained pursuant to this paragraph unless notice of claim is 2 duly filed or served in compliance with law. 3 (d) Notwithstanding the foregoing provisions of this subdivision, an 4 action may be maintained by the state or a political subdivision thereof 5 against a person entitled to withdraw blood pursuant to paragraph (a) of 6 this subdivision or hospital employing such person for whose act or 7 omission the state or the political subdivision has been held liable 8 under this subdivision to recover damages, not exceeding the amount 9 awarded to the claimant, that may have been sustained by the state or 10 the political subdivision by reason of gross negligence on the part of 11 such person entitled to withdraw blood. 12 (e) The testimony of any person, other than a physician, entitled to 13 draw blood pursuant to paragraph (a) of this subdivision in respect to 14 any such withdrawal of blood made by [him] such person may be received 15 in evidence with the same weight, force and effect as if such withdrawal 16 of blood were made by a physician. 17 (f) The provisions of paragraphs (b), (c) and (d) of this subdivision 18 shall also apply with regard to any person employed by a hospital as 19 security personnel for any act done or omitted in the course of with- 20 drawing blood at the request of a police officer pursuant to a court 21 order in accordance with this subdivision. 22 (g) The person tested shall be permitted to choose a physician to 23 administer a chemical test in addition to the one administered at the 24 direction of the police officer. 25 10. Chemical test and drug recognition evaluation evidence. (a) Upon 26 the trial of any such action or proceeding arising out of actions 27 alleged to have been committed by any person arrested for a violation of 28 any paragraph of subdivision two of this section, the court shall admit 29 evidence of the amount of alcohol or drugs in the defendant's blood as 30 shown by a test administered or evaluation conducted pursuant to the 31 provisions of subdivision seven or eight of this section. 32 (b) The following effect shall be given to evidence of blood alcohol 33 content, as determined by such tests, of a person arrested for a 34 violation of any paragraph of subdivision two of this section and who 35 was operating a vessel other than a public vessel: 36 (1) evidence that there was .05 of one per centum or less by weight of 37 alcohol in such person's blood shall be prima facie evidence that the 38 ability of such person to operate a vessel was not impaired by the 39 consumption of alcohol, and that such person was not in an intoxicated 40 condition. 41 (2) evidence that there was more than .05 of one per centum but less 42 than .07 of one per centum of weight in such person's blood shall be 43 prima facie evidence that such person was not in an intoxicated condi- 44 tion, but such evidence shall be relevant evidence but not be given 45 prima facie effect, in determining whether the ability of such person to 46 operate a vessel was impaired by the consumption of alcohol. 47 (3) evidence that there was .07 of one per centum or more but less 48 than .08 of one per centum by weight of alcohol in [his] such person's 49 blood shall be prima facie evidence that such person was not in an 50 intoxicated condition, but such evidence shall be given prima facie 51 effect in determining whether the ability of such person to operate a 52 vessel was impaired by the consumption of alcohol. 53 (c) Evidence of a refusal to submit to a chemical test or an evalu- 54 ation conducted by a certified drug recognition expert or any portion 55 thereof shall be admissible in any trial or hearing provided the request 
 A. 8599 30 1 to submit to such a test or evaluation was made in accordance with the 2 provisions of subdivision seven of this section. 3 § 28. Subdivision 1, paragraph (a) of subdivision 3, and paragraph 4 (a) of subdivision 4 of section 49-b of the navigation law, as added by 5 chapter 391 of the laws of 1998, are amended to read as follows: 6 1. Prohibition. No person under the age of twenty-one shall operate a 7 vessel upon the waters of this state after having consumed alcohol as 8 defined in this section. For purposes of this section, a person under 9 the age of twenty-one is deemed to have consumed alcohol only if such 10 person has .02 of one per centum or more but not more than .07 of one 11 per centum by weight of alcohol in the person's blood, as shown by chem- 12 ical analysis of such person's blood, breath, urine or [saliva] oral 13 fluid, made in accordance with the provisions of subdivision four of 14 section eleven hundred ninety-four of the vehicle and traffic law. Any 15 person who operates a vessel in violation of this section, and who is 16 not charged with a violation of subdivision two of section forty-nine-a 17 of this article arising out of the same incident shall be referred to 18 the department of motor vehicles for action in accordance with the 19 provisions of this section. Notwithstanding any provision of law to the 20 contrary, a finding that a person under the age of twenty-one operated a 21 vessel after having consumed alcohol in violation of this section is not 22 a judgment of conviction for a crime or any other offense. 23 (a) Any person under the age of twenty-one who operates a vessel on 24 the waters of the state shall be requested to consent to a chemical test 25 of one or more of the following: breath, blood, urine, or [saliva] oral 26 fluid for the purpose of determining the alcoholic or drug content of 27 [his] such person's blood, provided that such test is administered at 28 the direction of a police officer: (1) having reasonable grounds to 29 believe such person to have been operating in violation of this section 30 or paragraph (a), (b), (c), (d) or (e) of subdivision two of section 31 forty-nine-a of this article and within two hours after such person has 32 been placed under arrest, or detained pursuant to paragraph (c) of this 33 subdivision, for any such violation or (2) within two hours after a 34 breath test as provided in subdivision two of this section indicates 35 that alcohol has been consumed by such person and in accordance with the 36 rules and regulations established by the police force of which the offi- 37 cer is a member. 38 (a) Whenever a chemical test of the breath, blood, urine or [saliva] 39 oral fluid of an operator who is under the age of twenty-one indicates 40 that such person has operated a vessel in violation of this section, and 41 such person is not charged with violating any subdivision of section 42 forty-nine-a of this article arising out of the same incident, the 43 police officer who administered the test shall forward a report of the 44 results of such test to the department of motor vehicles within twenty- 45 four hours of the time when such results are available in a manner 46 prescribed by the commissioner of motor vehicles, and the operator shall 47 be given a hearing notice as provided in subdivision five of this 48 section, to appear before a hearing officer in the county where the 49 chemical test was administered, or in an adjoining county under such 50 circumstances as prescribed by the commissioner of motor vehicles, on a 51 date to be established in accordance with a schedule promulgated by the 52 commissioner of motor vehicles. Such hearing shall occur within thirty 53 days of, but not less than forty-eight hours from, the date that the 54 chemical test was administered, provided, however, where the commission- 55 er of motor vehicles determines, based upon the availability of hearing 56 officers and the anticipated volume of hearings at a particular 
 A. 8599 31 1 location, that the scheduling of such hearing within thirty days would 2 impair the timely scheduling or conducting of other hearings, such hear- 3 ing shall be scheduled at the next hearing date for such particular 4 location. When providing the operator with such hearing notice, the 5 police officer shall also give to the operator, and shall, prior to the 6 commencement of the hearing, provide to the department of motor vehi- 7 cles, copies of the following reports, documents and materials: any 8 written report or document, or portion thereof, concerning a physical 9 examination, a scientific test or experiment, including the most recent 10 record of inspection, or calibration or repair of machines or instru- 11 ments utilized to perform such scientific tests or experiments and the 12 certification certificate, if any, held by the operator of the machine 13 or instrument, which tests or examinations were made by or at the 14 request or direction of a public servant engaged in law enforcement 15 activity. The report of the police officer shall be verified by having 16 the report sworn to, or by affixing to such report a form notice that 17 false statements made therein are punishable as a class A misdemeanor 18 pursuant to section 210.45 of the penal law and such form notice togeth- 19 er with the subscription of the deponent shall constitute verification 20 of the report. 21 § 29. Paragraph (b) of subdivision 1 of section 25.24 of the parks, 22 recreation and historic preservation law, as amended by chapter 311 of 23 the laws of 2007, is amended to read as follows: 24 (b) No such person shall operate a snowmobile upon a street, highway, 25 public trails, lands, bodies of water, or private property of another 26 while [he or she has] they have .08 of one per centum or more by weight 27 of alcohol in [his or her] such person's blood, breath, urine, or [sali- 28 va] oral fluid, as determined by the chemical test or evaluation 29 conducted by a certified drug recognition expert made pursuant to the 30 provisions of subdivision six of this section. 31 § 30. Subdivisions 5, 6, 7, 8 and 9 of section 25.24 of the parks, 32 recreation and historic preservation law, as added by chapter 629 of the 33 laws of 1998, paragraph (b) of subdivision 5, paragraph (a) of subdivi- 34 sion 6 and paragraph (a) of subdivision 7 as amended by chapter 311 of 35 the laws of 2007, and subparagraphs 2 and 3 of paragraph (b) of subdivi- 36 sion 9 as amended by chapter 683 of the laws of 2003, are amended to 37 read as follows: 38 5. Arrest and testing. (a) Arrest. Notwithstanding the provisions of 39 section 140.10 of the criminal procedure law, a police officer may, 40 without a warrant, arrest a person, in case of a violation of any para- 41 graph of subdivision one of this section, if such violation is coupled 42 with an accident or collision in which such person is involved, which in 43 fact had been committed, though not in the police officer's presence, 44 when [he or she has] they have reasonable cause to believe that the 45 violation was committed by such person. For the purposes of this subdi- 46 vision police officer shall also include a peace officer authorized to 47 enforce the provisions of this chapter when the alleged violation 48 constitutes a crime. 49 (b) Breath test or oral fluid test for operators of a snowmobile. 50 Every person operating a snowmobile upon a street, highway, public 51 trails, lands, bodies of water, or private property of another which has 52 been involved in an accident or which is operated in violation of any of 53 the provisions of this chapter which regulate the manner in which a 54 snowmobile is to be properly operated shall, at the request of a police 55 officer, submit to a breath test or oral fluid test to be administered 56 by the police officer. If such test indicates that such operator has 
 A. 8599 32 1 consumed alcohol or a drug or drugs, the police officer may request such 2 operator to submit to a chemical test or an evaluation conducted by a 3 certified drug recognition expert in the manner set forth in subdivision 4 six of this section. 5 6. Chemical tests and drug recognition evaluations. (a) Any person 6 who operates a snowmobile upon a street, highway, public trails, lands, 7 bodies of water, or private property of another shall be requested to 8 consent to a chemical test or an evaluation conducted by a certified 9 drug recognition expert of one or more of the following: breath, blood, 10 urine or [saliva] oral fluid for the purpose of determining the alcohol- 11 ic or drug content of [his or her] such person's blood, provided that 12 such test or evaluation is administered at the direction of a police 13 officer: (1) having reasonable cause to believe such person to have been 14 operating in violation of this subdivision or paragraph (a), (b), (c), 15 or (d) of subdivision one of this section and within two hours after 16 such person has been placed under arrest for any such violation or (2) 17 within two hours after a breath test as provided in paragraph (b) of 18 subdivision five of this section indicates that alcohol has been 19 consumed by such person and in accordance with the rules and regulations 20 established by the police force of which the officer is a member. 21 (b) If such person having been placed under arrest or after a breath 22 test or oral fluid test indicates the presence of alcohol or a drug or 23 drugs in the person's system and having thereafter been requested to 24 submit to such chemical test or evaluation and having been informed that 25 the person's privilege to operate a snowmobile shall be immediately 26 suspended for refusal to submit to such chemical test or evaluation or 27 any portion thereof, whether or not the person is found guilty of the 28 charge for which such person is arrested, refuses to submit to such 29 chemical test or evaluation or any portion thereof, unless a court order 30 has been granted pursuant to subdivision seven of this section, the test 31 or evaluation shall not be given and a written report of such refusal 32 shall be immediately made by the police officer before whom such refusal 33 was made. Such report may be verified by having the report sworn to, or 34 by affixing to such report a form notice that false statements made 35 therein are punishable as a class A misdemeanor pursuant to section 36 210.45 of the penal law and such form notice together with the 37 subscription of the deponent shall constitute a verification of the 38 report. The report of the police officer shall set forth reasonable 39 grounds to believe such arrested person to have been operating a snowmo- 40 bile in violation of any paragraph of subdivision one of this section, 41 that such person had refused to submit to such chemical test or evalu- 42 ation, and that no chemical test was administered or evaluation 43 conducted pursuant to the requirements of subdivision seven of this 44 section. The report shall be presented to the court upon the arraignment 45 of the arrested person. The privilege to operate a snowmobile shall, 46 upon the basis of such written report, be temporarily suspended by the 47 court without notice pending the determination of a hearing as provided 48 herein. Copies of such report must be transmitted by the court to the 49 commissioner and the commissioner of motor vehicles and such transmittal 50 may not be waived even with the consent of all the parties. Such report 51 shall be forwarded to the commissioner and the commissioner of motor 52 vehicles within forty-eight hours of such arraignment. The court shall 53 provide such person with a hearing date schedule, a waiver form, and 54 such other information as may be required by the commissioner of motor 55 vehicles. If a hearing, as provided for in paragraph (c) of this subdi- 56 vision, is waived by such person, the commissioner of motor vehicles 
 A. 8599 33 1 shall immediately suspend the privilege to operate a snowmobile, as of 2 the date of receipt of such waiver in accordance with the provisions of 3 paragraph (d) of this subdivision. 4 (c) Any person whose privilege to operate a snowmobile has been 5 suspended pursuant to paragraph (b) of this subdivision is entitled to a 6 hearing in accordance with a hearing schedule to be promulgated by the 7 commissioner of motor vehicles. If the department of motor vehicles 8 fails to provide for such hearing fifteen days after the date of the 9 arraignment of the arrested person, the privilege to operate a snowmo- 10 bile of such person shall be reinstated pending a hearing pursuant to 11 this section. The hearing shall be limited to the following issues: (1) 12 did the police officer have reasonable cause to believe that such person 13 had been operating a snowmobile in violation of any paragraph of subdi- 14 vision one of this section; (2) did the police officer make a lawful 15 arrest of such person; (3) was such person given sufficient warning, in 16 clear and unequivocal language, prior to such refusal that such refusal 17 to submit to such chemical test or evaluation or any portion thereof, 18 would result in the immediate suspension of such person's privilege to 19 operate a snowmobile whether or not such person is found guilty of the 20 charge for which the arrest was made; and (4) did such person refuse to 21 submit to such chemical test or evaluation or any portion thereof. If, 22 after such hearing, the hearing officer, acting on behalf of the commis- 23 sioner of motor vehicles, finds on any one of said issues in the nega- 24 tive, the hearing officer shall immediately terminate any suspension 25 arising from such refusal. If, after such hearing, the hearing officer, 26 acting on behalf of the commissioner of motor vehicles finds all of the 27 issues in the affirmative, such officer shall immediately suspend the 28 privilege to operate a snowmobile in accordance with the provisions of 29 paragraph (d) of this subdivision. A person who has had the privilege to 30 operate a snowmobile suspended pursuant to this subdivision may appeal 31 the findings of the hearing officer in accordance with the provisions of 32 article three-A of the vehicle and traffic law. Any person may waive the 33 right to a hearing under this section. Failure by such person to appear 34 for the scheduled hearing shall constitute a waiver of such hearing, 35 provided, however, that such person may petition the commissioner of 36 motor vehicles for a new hearing which shall be held as soon as practi- 37 cable. 38 (d) (1) Any privilege to operate a snowmobile which has been suspended 39 pursuant to paragraph (c) of this subdivision shall not be restored for 40 six months after such suspension. However, no such privilege shall be 41 restored for at least one year after such suspension in any case where 42 the person has had a prior suspension resulting from refusal to submit 43 to a chemical test or evaluation pursuant to this subdivision, or has 44 been convicted of a violation of any paragraph of subdivision one of 45 this section not arising out of the same incident, within the five years 46 immediately preceding the date of such suspension. 47 (2) Any person whose privilege to operate a snowmobile is suspended 48 pursuant to the provisions of this subdivision shall also be liable for 49 a civil penalty in the amount of two hundred dollars except that if such 50 suspension is a second or subsequent suspension pursuant to this subdi- 51 vision issued within a five year period, or such person has been 52 convicted of a violation of any paragraph of subdivision one of this 53 section within the past five years not arising out of the same incident, 54 the civil penalty shall be in the amount of five hundred dollars. The 55 privilege to operate a snowmobile shall not be restored to such person 56 unless such penalty has been paid. The first one hundred dollars of each 
 A. 8599 34 1 penalty collected by the department of motor vehicles pursuant to the 2 provisions of this subdivision shall be paid to the commissioner of 3 motor vehicles for deposit to the general fund and the remainder of all 4 such penalties shall be paid to the commissioner for deposit in the 5 snowmobile trail development and maintenance fund established pursuant 6 to section ninety-two-n of the state finance law. 7 (e) The commissioner of motor vehicles in consultation with the 8 commissioner shall promulgate such rules and regulations as may be 9 necessary to effectuate the provisions of this subdivision. 10 (f) Evidence of a refusal to submit to such chemical test or evalu- 11 ation shall be admissible in any trial, proceeding or hearing based upon 12 a violation of the provisions of this section, but only upon a showing 13 that the person was given sufficient warning, in clear and unequivocal 14 language, of the effect of such refusal and that the person persisted in 15 [his or her] their refusal. 16 (g) Upon the request of the person tested or evaluated, the results of 17 such test or evaluation shall be made available to [him or her] such 18 person. 19 7. Compulsory chemical tests and drug recognition evaluations. (a) 20 Notwithstanding the provisions of subdivision six of this section, no 21 person who operates a snowmobile upon a street, highway, public trails, 22 lands, bodies of water, or private property of another may refuse to 23 submit to a chemical test of one or more of the following: breath, 24 blood, urine or [saliva] oral fluid, or an evaluation conducted by a 25 certified drug recognition expert, for the purpose of determining the 26 alcoholic and/or drug content of the blood when a court order for such 27 chemical test or evaluation has been issued in accordance with the 28 provisions of this subdivision. 29 (b) Upon refusal by any person to submit to a chemical test or evalu- 30 ation or any portion thereof as described in paragraph (a) of this 31 subdivision, the test or evaluation shall not be given unless a police 32 officer or a district attorney, as defined in subdivision thirty-two of 33 section 1.20 of the criminal procedure law, requests and obtains a court 34 order to compel a person to submit to a chemical test or an evaluation 35 conducted by a certified drug recognition expert to determine the alco- 36 holic or drug content of the person's blood upon a finding of reasonable 37 cause to believe that: 38 (1) such person was the operator of a snowmobile and in the course of 39 such operation a person other than the operator was killed or suffered 40 serious physical injury as defined in section 10.00 of the penal law; 41 and 42 (2) (i) either such person operated the snowmobile in violation of any 43 paragraph of subdivision one of this section, or 44 (ii) a breath test or oral fluid test administered by a police officer 45 in accordance with subdivision five of this section indicates that alco- 46 hol [has] or a drug or drugs have been consumed by such person; and 47 (3) such person has been placed under lawful arrest; and 48 (4) such person has refused to submit to a chemical test or evaluation 49 or any portion thereof, requested in accordance with the provisions of 50 subdivision six of this section or is unable to give consent to such a 51 test. 52 (c) For the purpose of this subdivision "reasonable cause" shall be 53 determined by viewing the totality of circumstances surrounding the 54 incident which, when taken together, indicate that the operator was 55 operating a snowmobile in violation of any paragraph of subdivision one 56 of this section. Such circumstances may include, but are not limited to: 
 A. 8599 35 1 evidence that the operator was operating a snowmobile in violation of 2 any provision of this chapter which regulates the manner in which a 3 snowmobile is to be properly operated at the time of the incident; any 4 visible indication of alcohol or drug consumption or impairment by the 5 operator; any other evidence surrounding the circumstances of the inci- 6 dent which indicates that the operator has been operating a snowmobile 7 while impaired by the consumption of alcohol or drugs or was intoxicated 8 at the time of the incident. 9 (d) (1) An application for a court order to compel submission to a 10 chemical test or an evaluation conducted by a certified drug recognition 11 expert or any portion thereof, may be made to any supreme court justice, 12 county court judge or district court judge in the judicial district in 13 which the incident occurred, or if the incident occurred in the city of 14 New York before any supreme court justice or judge of the criminal court 15 of the city of New York. Such application may be communicated by tele- 16 phone, radio or other means of electronic communication, or in person. 17 (2) The applicant must provide identification by name and title and 18 must state the purpose of the communication. Upon being advised that an 19 application for a court order to compel submission to a chemical test or 20 an evaluation conducted by a certified drug recognition expert is being 21 made, the court shall place under oath the applicant and any other 22 person providing information in support of the application as provided 23 in subparagraph three of this paragraph. After being sworn the applicant 24 must state that the person from whom the chemical test or evaluation was 25 requested was the operator of a snowmobile and in the course of such 26 operation a person, other than the operator, has been killed or serious- 27 ly injured and, based upon the totality of circumstances, there is 28 reasonable cause to believe that such person was operating a snowmobile 29 in violation of any paragraph of subdivision one of this section and, 30 after being placed under lawful arrest such person refused to submit to 31 a chemical test or an evaluation conducted by a certified drug recogni- 32 tion expert or any portion thereof, in accordance with the provisions of 33 this section or is unable to give consent to such a test or evaluation 34 or any portion thereof. The applicant must make specific allegations of 35 fact to support such statement. Any other person properly identified may 36 present sworn allegations of fact in support of the applicant's state- 37 ment. 38 (3) Upon being advised that an oral application for a court order to 39 compel a person to submit to a chemical test or an evaluation conducted 40 by a certified drug recognition expert is being made, a judge or justice 41 shall place under oath the applicant and any other person providing 42 information in support of the application. Such oath or oaths and all of 43 the remaining communication must be recorded, either by means of a voice 44 recording device or verbatim stenographic or verbatim longhand notes. If 45 a voice recording device is used or a stenographic record made, the 46 judge must have the record transcribed, certify to the accuracy of the 47 transcription and file the original record and transcription with the 48 court within seventy-two hours of the issuance of the court order. If 49 the longhand notes are taken, the judge shall subscribe a copy and file 50 it with the court within twenty-four hours of the issuance of the order. 51 (4) If the court is satisfied that the requirements for the issuance 52 of a court order pursuant to the provisions of paragraph (b) of this 53 subdivision have been met, it may grant the application and issue an 54 order requiring the accused to submit to a chemical test to determine 55 the alcoholic and/or drug content of [his or her] such person's blood 56 and ordering the withdrawal of a blood sample in accordance with the 
 A. 8599 36 1 provisions of subdivision eight of this section and/or to submit to an 2 evaluation conducted by a certified drug recognition expert. When a 3 judge or justice determines to issue an order to compel submission to a 4 chemical test or an evaluation conducted by a certified drug recognition 5 expert based on an oral application, the applicant therefor shall 6 prepare the order in accordance with the instructions of the judge or 7 justice. In all cases the order shall include the name of the issuing 8 judge or justice, the name of the applicant, and the date and time it 9 was issued. It must be signed by the judge or justice if issued in 10 person, or by the applicant if issued orally. 11 (5) Any false statement by an applicant or any other person in support 12 of an application for a court order shall subject such person to the 13 offenses for perjury set forth in article two hundred ten of the penal 14 law. 15 (e) An order issued pursuant to the provisions of this subdivision 16 shall require that a chemical test or an evaluation conducted by a 17 certified drug recognition expert to determine the alcoholic and/or drug 18 content of the operator's blood must be administered. The provisions of 19 paragraphs (a), (b) and (c) of subdivision eight of this section shall 20 be applicable to any chemical test or evaluation administered pursuant 21 to this section. 22 (f) A defendant who has been compelled to submit to a chemical test or 23 an evaluation conducted by a certified drug recognition expert pursuant 24 to the provisions of this subdivision may move for the suppression of 25 such evidence in accordance with article seven hundred ten of the crimi- 26 nal procedure law on the grounds that the order was obtained and the 27 test administered or evaluation conducted in violation of the provisions 28 of this subdivision or any other applicable law. 29 8. Testing procedures. (a) At the request of a police officer, the 30 following persons may withdraw blood for the purpose of determining the 31 alcohol or drug content therein: (1) a physician, a registered profes- 32 sional nurse or a registered physician's assistant; or (2) under the 33 supervision and at the direction of a physician: a medical laboratory 34 technician or medical technologist as classified by civil service; a 35 phlebotomist; an advanced emergency medical technician as certified by 36 the department of health, or a medical laboratory technician or medical 37 technologist employed by a clinical laboratory approved under title five 38 of article five of the public health law. This limitation shall not 39 apply to the taking of a urine, [saliva] oral fluid or breath specimen. 40 (b) No person entitled to withdraw blood pursuant to paragraph (a) of 41 this subdivision or hospital employing such person and no other employer 42 of such person shall be sued or held liable for any act done or omitted 43 in the course of withdrawing blood at the request of a police officer or 44 peace officer acting pursuant to [his or her] such officer's special 45 duties pursuant to this subdivision. 46 (c) Any person who may have a cause of action arising from the with- 47 drawal of blood as aforesaid, for which no personal liability exists 48 under paragraph (b) of this subdivision, may maintain such action 49 against the state if the person entitled to withdraw blood pursuant to 50 paragraph (a) of this subdivision acted at the request of a police offi- 51 cer or peace officer acting pursuant to [his or her] such officer's 52 special duties, employed by the state, or against the appropriate poli- 53 tical subdivision of the state if the person acted at the request of a 54 police officer or peace officer acting pursuant to [his or her] such 55 officer's special duties, employed by a political subdivision of the 
 A. 8599 37 1 state. No action shall be maintained pursuant to this paragraph unless 2 notice of claim is duly filed or served in compliance with law. 3 (d) Notwithstanding the foregoing provisions of this subdivision, an 4 action may be maintained by the state or a political subdivision thereof 5 against a person entitled to withdraw blood pursuant to paragraph (a) of 6 this subdivision or hospital employing such person for whose act or 7 omission the state or the political subdivision has been held liable 8 under this subdivision to recover damages, not exceeding the amount 9 awarded to the claimant, that may have been sustained by the state or 10 the political subdivision by reason of gross negligence on the part of 11 such person entitled to withdraw blood. 12 (e) The testimony of any person, other than a physician, entitled to 13 draw blood pursuant to paragraph (a) of this subdivision in respect to 14 any such withdrawal of blood made by [him or her] such person may be 15 received in evidence with the same weight, force and effect as if such 16 withdrawal of blood were made by a physician. 17 (f) The provisions of paragraphs (b), (c) and (d) of this subdivision 18 shall also apply with regard to any person employed by a hospital as 19 security personnel for any act done or omitted in the course of with- 20 drawing blood at the request of a police officer pursuant to a court 21 order in accordance with this subdivision. 22 (g) The person tested shall be permitted to choose a physician to 23 administer a chemical test in addition to the one administered at the 24 direction of the police officer. 25 9. Chemical test and drug recognition evaluation evidence. (a) Upon 26 the trial of any such action or proceeding arising out of actions 27 alleged to have been committed by any person arrested for a violation of 28 any paragraph of subdivision one of this section, the court shall admit 29 evidence of the amount of alcohol or drugs in the defendant's blood as 30 shown by a test administered or evaluation conducted pursuant to the 31 provisions of subdivision six or seven of this section. 32 (b) The following effect shall be given to evidence of blood alcohol 33 content, as determined by such tests, of a person arrested for a 34 violation of any paragraph of subdivision one of this section and who 35 was operating a snowmobile: 36 (1) evidence that there was .05 of one per centum or less by weight of 37 alcohol in such person's blood shall be prima facie evidence that the 38 ability of such person to operate a snowmobile was not impaired by the 39 consumption of alcohol, and that such person was not in an intoxicated 40 condition. 41 (2) evidence that there was more than .05 of one per centum but less 42 than .07 of one per centum of weight in such person's blood shall be 43 prima facie evidence that such person was not in an intoxicated condi- 44 tion, but such evidence shall be relevant evidence but not be given 45 prima facie effect, in determining whether the ability of such person to 46 operate a snowmobile was impaired by the consumption of alcohol. 47 (3) evidence that there was .07 of one per centum or more but less 48 than .08 of one per centum by weight of alcohol in such person's blood 49 shall be prima facie evidence that such person was not in an intoxicated 50 condition, but such evidence shall be given prima facie effect in deter- 51 mining whether the ability of such person to operate a snowmobile was 52 impaired by the consumption of alcohol. 53 (c) Evidence of a refusal to submit to a chemical test or an evalu- 54 ation conducted by a certified drug recognition expert or any portion 55 thereof shall be admissible in any trial or hearing provided the request 
 A. 8599 38 1 to submit to such a test or evaluation was made in accordance with the 2 provisions of subdivision six of this section. 3 § 31. Subdivision 1 and paragraph (b) of subdivision 2 of section 4 120.04 of the penal law, as amended by chapter 496 of the laws of 2009, 5 are amended to read as follows: 6 (1) commits such crime while operating a motor vehicle while such 7 person has .18 of one per centum or more by weight of alcohol in such 8 person's blood as shown by chemical analysis of such person's blood, 9 breath, urine or [saliva] oral fluid made pursuant to the provisions of 10 section eleven hundred ninety-four of the vehicle and traffic law; 11 (b) [his or her] such person's license or [his or her] such person's 12 privilege of operating a motor vehicle in the state or [his or her] such 13 person's privilege of obtaining a license issued by the commissioner of 14 motor vehicles is suspended or revoked and such suspension or revocation 15 is based upon either a refusal to submit to a chemical test or an evalu- 16 ation conducted by a certified drug recognition expert pursuant to 17 section eleven hundred ninety-four of the vehicle and traffic law or 18 following a conviction for a violation of any of the provisions of 19 section eleven hundred ninety-two of the vehicle and traffic law; 20 § 32. Subdivision 1 and paragraph (b) of subdivision 2 of section 21 120.04-a of the penal law, as amended by chapter 496 of the laws of 22 2009, are amended to read as follows: 23 (1) commits such crimes while operating a motor vehicle while such 24 person has .18 of one per centum or more by weight of alcohol in such 25 person's blood as shown by chemical analysis of such person's blood, 26 breath, urine or [saliva] oral fluid made pursuant to the provisions of 27 section eleven hundred ninety-four of the vehicle and traffic law; 28 (b) [his or her] such person's license or [his or her] such person's 29 privilege of operating a motor vehicle in this state or [his or her] 30 such person's privilege of obtaining a license issued by the commission- 31 er of motor vehicles is suspended or revoked and such suspension or 32 revocation is based upon either a refusal to submit to a chemical test 33 or an evaluation conducted by a certified drug recognition expert pursu- 34 ant to section eleven hundred ninety-four of the vehicle and traffic law 35 or following a conviction for a violation of any of the provisions of 36 section eleven hundred ninety-two of the vehicle and traffic law; 37 § 33. Subdivision 1 and paragraph (b) of subdivision 2 of section 38 125.13 of the penal law, as amended by chapter 496 of the laws of 2009, 39 are amended to read as follows: 40 (1) commits such crime while operating a motor vehicle while such 41 person has .18 of one per centum or more by weight of alcohol in such 42 person's blood as shown by chemical analysis of such person's blood, 43 breath, urine or [saliva] oral fluid made pursuant to the provisions of 44 section eleven hundred ninety-four of the vehicle and traffic law; 45 (b) [his or her] such person's license or [his or her] such person's 46 privilege of operating a motor vehicle in the state or [his or her] such 47 person's privilege of obtaining a license issued by the commissioner of 48 motor vehicles is suspended or revoked and such suspension or revocation 49 is based upon either a refusal to submit to a chemical test or an evalu- 50 ation conducted by a certified drug recognition expert pursuant to 51 section eleven hundred ninety-four of the vehicle and traffic law or 52 following a conviction for a violation of any of the provisions of 53 section eleven hundred ninety-two of the vehicle and traffic law; 54 § 34. Subdivision 1 and paragraph (b) of subdivision 2 of section 55 125.14 of the penal law, as amended by chapter 496 of the laws of 2009, 56 are amended to read as follows: 
 A. 8599 39 1 (1) commits such crimes while operating a motor vehicle while such 2 person has .18 of one per centum or more by weight of alcohol in such 3 person's blood as shown by chemical analysis of such person's blood, 4 breath, urine or [saliva] oral fluid made pursuant to the provisions of 5 section eleven hundred ninety-four of the vehicle and traffic law; 6 (b) [his or her] such person's license or [his or her] such person's 7 privilege of operating a motor vehicle in this state or [his or her] 8 such person's privilege of obtaining a license issued by the commission- 9 er of motor vehicles is suspended or revoked and such suspension or 10 revocation is based upon either a refusal to submit to a chemical test 11 or an evaluation conducted by a certified drug recognition expert pursu- 12 ant to section eleven hundred ninety-four of the vehicle and traffic law 13 or following a conviction for a violation of any of the provisions of 14 section eleven hundred ninety-two of the vehicle and traffic law; 15 § 35. This act shall take effect immediately.