Provides for increasing the parameters of driving while ability impaired to include driving while ability is affected to any extent by the utilization of a drug

Justification

This bill would remedy a deficiency in the Vehicle and Traffic Law (VTL) which constitutes a significant number of cases each year. Section 1192 of the VTL is entitled "Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs". Section 1992.2 of the VTL provides that "no person shall operate a motor vehicle while such person has .10 of 1 percentum or more by weight of alcohol in the persons blood ...". Section 1192-3 provides that no person shall operate a motor vehicle while in an intoxicated condition. Both Sections 1192-2 and 1192.3 of the VTL are unclassified misdemeanors. Routinely first time offenders, and in various other circumstances other repeat offenders, are afforded the opportunity to negotiate a plea downward to the non-criminal violation of Section 1192-1 of the VTL.

Section 1192-4 of the VTL deals with the issue of operating a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug. This section, like §1192.2 and §1192.3, is an unclassified misdemeanor. Similarly and routinely, a first time offender and other repeat offenders in certain circumstances charged with operating a motor vehicle while such person's ability is impaired by drugs is offered a plea by the District Attorney's Office to the non-criminal violation of §1192.1 of the VTL.

Whenever the Court takes a plea of §1192-1 the defendant must state that he or she was driving while impaired by alcohol. This presents three distinct problems.

First, usually those people who are pleading guilty in reduction from §1192-4 to §1192.1 of the VTL have not consumed any alcohol but rather have utilized some form of drug. When the Court inquires as to the factual basis of the plea under §1192.1, which only provides for impairment by alcohol, the defendant must either completely fictionalize their use of alcohol or simply state that he or she did not consume any alcohol whatsoever.

Second, should the court even wish to ignore this fiction and allow the defendant to enter a plea to §1192-1 in a §1192-4 case, the conviction on the defendant's prior criminal history would reflect an alcohol problem rather than a drug related problem. A law enforcement officer viewing a defendant's prior history would not know that a defendant was operating under the influence of a drug if the history showed a conviction for alcohol.

Third, a defendant after taking a plea and having sentence imposed could move to set aside his conviction to §1192-1 as legally insufficient if the original charge is §1192-4.

By creating this new section the public will be best served so that routine reductions which are inappropriately and customarily accepted by the court will now have a basis in fact. Law Enforcement Officers will now also know by looking at a prior criminal history if the defendant has been known to utilize drugs rather than being misled by an alcohol conviction under §1192-1.

Legislative history

1999-00: S.2791--Passed Senate; A.6926--Transportation 2001-2002: S.96; Passed Senate; 2003-2004: S.801--Passed Senate; 2005-2006: S.665--Passed Senate; 2007-2008: S.617--Passed Senate. 2009-10: S.605--Transportation. 2011.12: S.949--Transportation. 2013-14: S.1512--Transportation

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 law.