Defines the terms "impaired" and "intoxication" for the purposes of the vehicle and traffic law

Summary of provisions

Section 119-b defines impaired in conformity with the language of the N ew York State Court of Appeals ruling in People v. Cruz, 48 NY.2nd 419, (1979).

Section 120-a defines intoxication in conformity with the language of the New York State Court of Appeals ruling in People v. Cruz, 48 N.Y.2nd 419, (1979) and expands such definition to encompass situations described in the New York State Court of Appeals ruling in People v. Litto, 8 N.Y.3rd 692, (2007).

Adds a new subdivision 13 to section 1192 of the VTL providing an affirmative defense for persons impaired by a substance a person would not reasonably know to be an intoxicant.

Justification

All too often, intoxicated drivers who are under the influence of a substance that has not been placed upon the New York Sate Public Health Law Schedule 3306 or a substance that cannot be determined, escape prosecution. Clearly dangerous drivers can frustrate the prosecution of their own acts by the simple legislatively sanctioned expedient of refusing a chemical test of their blood breath and urine. If the driver has no contraband and makes no admissions, the intoxicating substance ingested will not be known to law enforcement, a condition precedent to prosecution under our current laws. Additionally, some clearly dangerous drivers who ingest substances or combinations of substances not listed in the Public Health Law may not be prosecuted under our current laws.

In January of 2004, after becoming intoxicated from ingesting an aerosol spray can of "Dust-off', Vincent Litto veered into oncoming traffic, killing 18-year-old Kristian Roggio Litto and injuring James Sienna, and two others.

The defendant was indicted for the Crimes of Manslaughter 2 Degree, Vehicular Manslaughter 2 Degree, Criminally Negligent Homicide, Reckless Endangerment 2 Degree, Reckless Driving, Operating a Motor Vehicle while in an Intoxicated Condition; Assault 2 Degree (4 counts); Assault 3 Degree (4 counts). In June of 2007, the Court of Appeals of the State of New York affirmed the dismissal of Vehicular Manslaughter 2 Degree and Operating a Motor Vehicle while in an Intoxicated Condition because Difluoroethane, the chemical propellant in Dust-Off, is not among substances listed in Public Health Law 3306.

Chief Judge Judith Kaye wrote that she is mindful that, with the court's ruling, there may be circumstances where impaired drivers can avoid punishment under the law. "If defendant did what the prosecution charges, then his conduct was reprehensible -- his voluntary inhalation of hydrocarbon while driving resulted in the death of a young woman and serious injuries to others," the chief judge wrote. "Perhaps gaps exist in the law and the prosecution should not have to rely on the 12 other counts charged. However, a determination by this court that intoxication in Vehicle and Traffic Law section 1192(3) includes the use of any substance would improperly override the legislative policy judgment."

There are numerous instances where individuals are arrested because they were driving while they were dramatically intoxicated by a drug, to the point of falling down and becoming unconscious but because under the facts of each individual case, the substance was not identified.

In response to this problem a number of states have enacted legislation that allow for the prosecution of a driver who has ingested intoxicating substances.

In addition, this bill adds an affirmative defense provision to section 1192 of the VTL, which allows a defendant to prove that he or she did not know nor reasonably should have known of the intoxicating nature of the substance he or she consumed.

Legislative history

2009-10: Reported to Codes (S.4777/A.10917) 2008: Passed the Senate

Fiscal implications

None.

Effective date

This act shall take effect on the first day of November next succeeding the date on which it shall have become a law.