Relates to driving while intoxicated

Summary of provisions

Section one of the bill would amend the definition of "drug" in Vehicle and Traffic Law (VTL) §114-a to include any substance that may cause a driver to be impaired or intoxicated.

Sections two and three of the bill would add new sections § 119-b and § 120-a to the VTL, respectively, to provide definitions of the terms "impaired" and "intoxicated."

Sections four, five, six and seven of the bill would amend Vehicle and Traffic Law (VTL) §509-cc to provide that a person who has been convicted of a DWI or DWAI offense while driving a school bus would be permanently disqualified from being a school bus driver.

Section eight of the bill would add new subdivisions (5-a) and (6-a) to VTL § 1192, which would prohibit, as a DWAI, the operation of a school bus if the driver has a blood alcohol concentration (BAC) of .02 or more but less than .06. This section would also prohibit, as a DWI, the operation of a school bus if the driver has a BAC of .06 or more.

Section nine of the bill would amend VTL §§1193(1)(b)(ii) and 1193(1)(c)(iii) to require that where a person is adjudicated a

youthful offender for a DWI offense, the court shall order the offender to install and maintain an ignition interlock device.

Section ten of the bill would amend VTL §§ 1193(1)(d)(1-a) and 1193(1)(d)(4-a) to specify the class and category of each violation for operating a school bus at the lower blood alcohol concentration set forth in section eight of the bill.

Section eleven of the bill would amend VTL § 1193( 1-a) to increase the mandatory sentence of incarceration from five days to thirty days upon a second conviction for a DWI offense within a ten year period, a:nd to increase the mandatory sentence of incarceration from ten days to ninety days for three or more DWI convictions within a ten year period. In addition, the period of community service that may be substituted for incarceration on a second offense is increased from thirty days to sixty days and is eliminated upon a third conviction. This section of the bill also extends the look-back period during which multiple convictions trigger a mandatory jail sentence or community service is increased from five years to ten years.

Sections twelve and thirteen of the bill would amend VTL §1194(3) and (4) and VTL § 1195(3) to authorize a police officer or district attorney to direct a person to submit to a chemical test if there is reasonable cause to believe that such person was operating a motor vehicle in violation of VTL § 1192, another person was killed or injured, a breath test indicated the presence of alcohol, and the driver has been arrested. The person compelled to submit to the chemical test may move to suppress the evidence pursuant to Criminal Procedure Law §710.20.

Section fourteen of the bill would amend VTL §1198(1) and (2) to clarify that a court must require a person adjudicated a youthful offender for a DWI offense to install and maintain an ignition interlock device. It would also amend VTL § 1198(9) to create a new crime in cases where a person installs an ignition interlock device in a manner that allows for the device to be bypassed. The bill would further provide that a violation of VTL § 1198(9) is a class A misdemeanor punishable by the provisions of Articles 60, 65 and 70 of the Penal Law.

Section fifteen of the bill would amend Vehicle and Traffic Law (VTL) §1198(7)(c) to provide that operating a vehicle without an ignition interlock device when such a device has been ordered by a court is a class A misdemeanor punishable by the provisions of Articles 60, 65 and 70 of the Penal Law.

Section sixteen of the bill would provide for an effective date of August 15, 2010, provided that the amendments to VTL § 1193(1)(b )(ii) made by section 9 and the amendments to VTL §1198(1) and (2) made by section 14 would take effect on the same date and in the same manner as the amendments to such subparagraph and subdivisions in Chapter 496 of the Laws of 2009 take effect; provided that sections

1-11, 14 and 15 of this bill would apply to violations committed on or after the effective date.

Existing law

Currently, intoxication by a drug can be the basis for a VTL § 1192 offense only if the drug is listed in Public Health Law §3306. This list does not include many substances that have the ability to intoxicate and impair drivers. The terms "impaired" and "intoxicated" are not defined.

A school bus driver must now have a blood alcohol concentration than .05 or greater to be considered impaired. A person convicted of a DWI offense while driving a school bus is disqualified from being a school bus driver for only five years from the date of the conviction.

The mandatory jailor community service sentence for a person convicted of two DWI offenses in a five-year period is currently five days in jail or thirty days of community service. The mandatory jailor community service sentence for a person convicted of more than two DWI offenses in a five-year period is ten days in jail or sixty days of community service.

Currently, where a person arrested for a DWI offense which caused a death or injury refuses to comply with a request for a blood sample, a court order compelling the person to comply with the request must be obtained before a blood sample may be taken, delaying the taking of the sample and the likelihood that the evidence will dissipate.

Legislative history

This is a new bill.

Statement in support

Driving while intoxicated is a serious offense that takes the lives of many New Yorkers each year. While New York currently has strong DWI laws, there remains more to be done to combat this problem.

First, a tragic loophole now exists in New York Law which can allow a drunk driver who injures or kills another to delay the testing of his or her blood for alcohol until the alcohol has dissipated. When a person who is suspected of driving "drunk and has killed or seriously injured another refuses to take a chemical test, the police or District Attorney must apply for a court order to compel the test. This procedure takes time, during which alcohol consumed by the driver continues to metabolize and dissipate. By the time the court order is obtained and the test taken, there may be no remaining blood alcohol concentration even though the driver clearly exhibited signs of intoxication on arrest. There have been cases in which drivers

with knowledge of the law have used that knowledge to cause a delay in order to attempt to escape criminal liability. A person may be visibly impaired, have slurred speech, and reek of alcohol, but if he or she refuses a breathalyzer .test and it takes a few hours to obtain a court order, the test may show no alcohol in his or her system. Blood alcohol content usually disappeared within seven hours. In no other criminal proceeding is a suspect allowed to cause delays while criminal evidence is destroyed. This bill balances the need to obtain evidence of a person's blood alcohol concentration in a timely manner while preserving the defendant's right to challenge the admissibility of the chemical test after the evidence is collected by filing a motion to suppress pursuant to New York Criminal Procedure Law. The United States Supreme Court has held that taking of blood from a DWI suspect without a warrant is not an unreasonable seizure (see Schmerber v. California, 384 U.S. 757 (1966)).

Second, the use of an ignition interlock following a conviction for driving while intoxicated has been shown to significantly reduce repeat DWI offenses, leading to greater public safety. Use of such devices was made mandatory following DWI convictions by Chapter 496 of the Laws of 2009 ("Leandra's Law"). Experience has shown, however, that some DWI offenders will attempt to continue to drive while intoxicated by tampering with or circumventing the device. Such circumvention may include paying an installer to install the device in a manner that allows the vehicle to start even though the driver did not use the device or used it improperly. Under current law, the DWI offender who circumvents an interlock device is subject to prosecution under current law, but the corrupt installer is not. This bill would close that loophole by making it a crime to install an ignition interlock device in a manner that allows the device to be bypassed.

Third, current law does not explicitly provide that a person adjudicated a youthful offender for a DWI offense must install and maintain an ignition interlock device. However, it is as important, if not more important, that a youthful offender be subject to the interlock requirement, both to increase public safety and to prevent youthful offenders from becoming DWI recidivists. This bill makes clear that a court must require the installation of an interlock device for persons adjudicated youthful offenders for a DWI offense.

Fourth, current law does not sufficiently sanction individuals who endanger children by driving a school bus while impaired or intoxicated. Driving a school bus after consuming alcohol is an invitation to a tragedy. Parents should feel secure that their children will be safe when riding on a school bus. However, under current law a school bus driver can drink enough to have a blood alcohol level of .04% without legal consequences. No amount of alcohol consumption should be tolerated by a person driving a school

bus. This bill lowers the blood alcohol concentration allowed for school bus drivers to .02%. The bill also would permanently disqualify a person from driving a school bus if he or she has been convicted of operating a school bus while impaired or intoxicated.

Fifth, under current law, a person may be convicted of multiple DWI offenses without ever serving a period of incarceration. Currently a person convicted of two DWI offenses within five years must serve a five-day sentence of incarceration or perform 30 days of community service, and a person who has committed more than two DWI offenses in a five-year period must serve a ten-day sentence of incarceration or perform 60 days of community service. By increasing the minimum sentence of incarceration to thirty days and ninety days respectively, increasing the look-back period to ten years, increasing the optional period of community service for second offenders to sixty days, and eliminating the community service option for a person convicted of three or more DWI offenses, this bill would allow courts to impose a higher sentence of incarceration and enhance public safety by removing persistent DWl offenders from the road for a period of time.

Finally, the VTL defines a "drug" as a substance listed in PHL §3306. However, the use of non-PHL .3306 substances for a temporary high, including common household items such as aerosols, herbal concoctions, and glue, is increasingly common. These substances may cause a driver to be impaired to a greater extent than alcohol or drugs regulated by the Public Health Law (PHI,). This bill would amend the definition of a drug for purposes of DWI offenses to include any substance which may cause a driver to be impaired or intoxicated, even if it is not listed in PHL . 3306, and would allow a court to impose the appropriate sanction on a person who abuses such substances and then drives while impaired.

Fiscal impact

This bill would have no impact on State finances.

Effective date

This bill would become effective August 15,2010, provided that the amendments to VTL § 1193(1 )(b )(ii) made by section 9 and the amendments to VTL § 1198(1) and (2) made by section 14 would take effect on the same date and in the same manner as the amendments to such subparagraph and subdivisions in Chapter 496 of the Laws of2009 take effect; provided that sections 1-11, 14 and 15 of this bill would apply to violations committed on or after the effective date.