Relates to compulsory chemical testing

5 Co-sponsors

• Kemp Hannon
• Jeffrey D. Klein
• William J. Larkin Jr.
• Kenneth P. LaValle
• Suzi Oppenheimer

BILL NUMBER:S3768B REVISED 06/23/11

Title of bill

An act to amend the vehicle and traffic law, in relation to compulsory chemical tests

Purpose

The purpose of this bill is to provide the necessary tools to allow the implementation of a "no refusal" policy in New York State

Summary of provisions

This bill amends the section 1194 of the Vehicle and Traffic Law to allow application to a court to compel compliance with a chemical test where a motorist is suspected to be under the influence and where the driver has refused a chemical test.

Existing law

Under current law, a police officer or district attorney may apply for an order to compel upon refusal by an operator to submit to a chemical test only when there is reasonable cause to believe the operator is DUI and there is serious bodily harm or death. Law enforcement is not permitted to apply for an order to compel where there is there is reasonable cause, but neither serious bodily harm nor death.

Justification

Under current law, upon receipt of his or her driver license a motorist is deemed to have given consent to submit to a chemical test when reasonable cause exists to believe he or she is driving under the influ- ence - this is a condition of the privilege to drive. Should a motorist choose not to submit, he or she faces a period of license revocation and monetary penalties. Law enforcement, however, faces the prospect of having to make a case without what is often times the sole piece of objective evidence in a DUI case.

Given the choice of a fine and period of revocation, as against provid- ing substantial evidence of one's guilt in what could be a criminal matter, it is no surprise that many times a motorist refuses to submit to a chemical test. This legislation seeks to strengthen law enforce- ment's hand in these situations. This bill would make would allow appli- cations to the court in any situation in which law enforcement has a reasonable belief that a motorist is driving under the influence and that motorist has refused to submit to a chemical test. This bill would add real teeth to the "implied consent" provision of the Vehicle and Traffic Law.

Presently, the authority to apply to a court for an order to compel submission to a chemical test exists only in situations of death or serious injury. This bill allow for applications to the court where a motorist refuses to submit to a chemical test in situations where there is a reasonable cause exists to believe the motorist is under the influ- ence but in which there has been no death or serious injury. In so

amending the law, all judicial safeguards have been preserved. A law enforcement officer must articulate to a judge his or her reasonable cause for the belief that the motorist was driving under the influence, and only when a judge is satisfied that such cause exists will a court order be issued.

In December, U.S. Transportation Secretary, Ray LaHood highlighted the need for a national "no refusal" policy, calling on each state to adopt such a policy. Presently, nine states implement no refusal strategies at some level. New York's adoption of such a policy would be a strong tool for law enforcement in the prevention of DUI and DUI related tragedies.

Legislative history

New bill

Fiscal implications

None.

Local fiscal implications

None.

Effective date

Immediate.