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Alcohol, Drugs & DWI |
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Contents 2009 Edition
(Only highlighted sections of the V&T Law are available on this page.)
| Article 31 |
Alcohol and Drug-Related Offenses and Procedures Applicable Thereto |
| Section 1192. |
Operating a motor vehicle while under the influence of alcohol or drugs. |
| Section 1192-a. |
Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se. |
| Section 1193. |
Sanctions. |
| Section 1194. |
Arrest and testing. |
| Section 1194-a. |
Driving after having consumed alcohol; under twenty-one; procedure. |
| Section 1195. |
Chemical test evidence. |
| Section 1196. |
Alcohol and drug rehabilitation program. |
| Section 1197. |
Special traffic options program for driving while intoxicated. [STOP-DWI] |
| Section 1198. |
Ignition interlock device program. |
| Section 1198-A. |
Special procedures and disposition involving alcohol and substance abuse assessment and treatment. |
| Section 1199. |
Driver responsibility assessment. |
| Article 33 |
Miscellaneous rules |
| Section 1227. |
Consumption or possession of alcoholic beverages in certain motor vehicles. |
§ 1192. Operating a motor vehicle while under the influence of alcohol or drugs.
1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.
(b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.
4-a. Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.
5. Commercial motor vehicles: per se - level I. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a chemical analysis of such person's blood, breath, urine, or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article, indicates that such operator has .02 of one per centum or more but less than .04 of one per centum by weight of alcohol in such operator's blood.
6. Commercial motor vehicles; per se - level II. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has more than .06 of one per centum but less than .08 of one per centum by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section.
7. Where applicable. The provisions of this section shall apply upon public highways, private roads open to motor vehicle traffic and any other parking lot. For the purposes of this section "parking lot" shall mean any area or areas of private property, including a driveway, near or contiguous to and provided in connection with premises and used as a means of access to and egress from a public highway to such premises and having a capacity for the parking of four or more motor vehicles. The provisions of this section shall not apply to any area or areas of private property comprising all or part of property on which is situated a one or two family residence.
8. Effect of prior out-of-state conviction. A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section. Provided, however, that if such conduct, had it occurred in this state, would have constituted a violation of any provisions of this section which are not misdemeanor or felony offenses, then such conduct shall be deemed to be a prior conviction of a violation of subdivision one of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article.
8-a. Effect of prior finding of having consumed alcohol. A prior finding that a person under the age of twenty-one has operated a motor vehicle after having consumed alcohol pursuant to section eleven hundred ninety-four-a of this article shall have the same effect as a prior conviction of a violation of subdivision one of this section solely for the purpose of determining the length of any license suspension or revocation required to be imposed under any provision of this article, provided that the subsequent offense is committed prior to the expiration of the retention period for such prior offense or offenses set forth in paragraph (k) of subdivision one of section two hundred one of this chapter.
9. Conviction of a different charge. A driver may be convicted of a violation of subdivision one, two or three of this section, notwithstanding that the charge laid before the court alleged a violation of subdivision two or three of this section, and regardless of whether or not such conviction is based on a plea of guilty.
10. Plea bargain limitations. (a) (i) In any case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section, other than subdivision five or six, and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.
(ii) In any case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section, no plea of guilty to subdivision one of this section shall be accepted by the court unless such plea includes as a condition thereof the requirement that the defendant attend and complete the alcohol and drug rehabilitation program established pursuant to section eleven hundred ninety-six of this article, including any assessment and treatment required thereby; provided, however, that such requirement may be waived by the court upon application of the district attorney or the defendant demonstrating that the defendant, as a condition of the plea, has been required to enter into and complete an alcohol or drug treatment program prescribed pursuant to an alcohol or substance abuse screening or assessment conducted pursuant to section eleven hundred ninety-eight-a of this article or for other good cause shown. The provisions of this subparagraph shall apply, notwithstanding any bars to participation in the alcohol and drug rehabilitation program set forth in section eleven hundred ninety-six of this article; provided, however, that nothing in this paragraph shall authorize the issuance of a conditional license unless otherwise authorized by law.
(iii) In any case wherein the charge laid before the court alleges a violation of subdivision one of this section and the operator was under the age of twenty-one at the time of such violation, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of such subdivision; provided, however, such charge may instead be satisfied as provided in paragraph (c) of this subdivision, and, provided further that, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of subdivision one of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.
(b) In any case wherein the charge laid before the court alleges a violation of subdivision one or six of this section while operating a commercial motor vehicle, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney upon reviewing the available evidence determines that the charge of a violation of this section is not warranted, he may consent, and the court may allow, a disposition by plea of guilty to another charge is satisfaction of such charge.
(c) Except as provided in paragraph (b) of this subdivision, in any
case wherein the charge laid before the court alleges a violation of
subdivision one of this section by a person who was under the age of
twenty-one at the time of commission of the offense, the court, with the
consent of both parties, may allow the satisfaction of such charge by
the defendant's agreement to be subject to action by the commissioner
pursuant to section eleven hundred ninety-four-a of this article. In any
such case, the defendant shall waive the right to a hearing under
section eleven hundred ninety-four-a of this article and such waiver
shall have the same force and effect as a finding of a violation of
section eleven hundred ninety-two-a of this article entered after a
hearing conducted pursuant to such section eleven hundred ninety-four-a.
The defendant shall execute such waiver in open court, and, if
represented by counsel, in the presence of his attorney, on a form to be
provided by the commissioner, which shall be forwarded by the court to
the commissioner within ninety-six hours. To be valid, such form shall,
at a minimum, contain clear and conspicuous language advising the
defendant that a duly executed waiver:
(i) has the same force and effect
as a guilty finding following a hearing pursuant to section eleven
hundred ninety-four-a of this article;
(ii) shall subject the defendant
to the imposition of sanctions pursuant to such section eleven hundred
ninety-four-a; and
(iii) may subject the defendant to increased
sanctions upon a subsequent violation of this section or section eleven
hundred ninety-two-a of this article. Upon receipt of a duly executed
waiver pursuant to this paragraph, the commissioner shall take such
administrative action and impose such sanctions as may be required by
section eleven hundred ninety-four-a of this article.
(d) In any case wherein the charge laid before the court alleges a
violation of subdivision two-a of this section, any plea of guilty
thereafter entered in satisfaction of such charge must include at least
a plea of guilty to the violation of the provisions of subdivision two,
two-a or three of this section, and no other disposition by plea of
guilty to any other charge in satisfaction of such charge shall be
authorized; provided, however, if the district attorney, upon reviewing
the available evidence, determines that the charge of a violation of
this section is not warranted, such district attorney may consent and
the court may allow a disposition by plea of guilty to another charge in
satisfaction of such charge, provided, however, in all such cases, the
court shall set forth upon the record the basis for such disposition.
Provided, further, however, that no such plea shall be accepted by the
court unless such plea includes as a condition thereof the requirement
that the defendant attend and complete the alcohol and drug
rehabilitation program established pursuant to section eleven hundred
ninety-six of this article, including any assessment and treatment
required thereby; provided, however, that such requirement may be waived
by the court upon application of the district attorney or the defendant
demonstrating that the defendant, as a condition of the plea, has been
required to enter into and complete an alcohol or drug treatment program
prescribed pursuant to an alcohol or substance abuse screening or
assessment conducted pursuant to section eleven hundred ninety-eight-a
of this article or for other good cause shown. The provisions of this
paragraph shall apply, notwithstanding any bars to participation in the
alcohol and drug rehabilitation program set forth in section eleven
hundred ninety-six of this article; provided, however, that nothing in
this paragraph shall authorize the issuance of a conditional license
unless otherwise authorized by law.
11. No person other than an operator of a commercial motor vehicle may be charged with or convicted of a violation of subdivision five or six of this section.
12. Driving while intoxicated or while ability impaired by drugs--serious physical injury or death or child in the vehicle. (a) In every case where a person is charged with a violation of subdivision two, two-a, three, four or four-a of this section, the law enforcement officer alleging such charge shall make a clear notation in the "Description of Violation" section of a simplified traffic information
(i) if, arising out of the same incident, someone other than the person charged was killed or suffered serious physical injury as defined in section 10.00 of the penal law; such notation shall be in the form of a "D" if someone other than the person charged was killed and such notation shall be in the form of a "S.P.I." if someone other than the person charged suffered serious physical injury; and
(ii) if a child aged fifteen years or less was present in the vehicle of the person charged with a violation of subdivision two, two-a, three, four or four-a of this section; such notation shall be in the form of "C.I.V.". Provided, however, that the failure to make such notations shall in no way affect a charge for a violation of subdivision two, two-a, three, four or four-a of this section.
(b) Where a law enforcement officer alleges a violation of paragraph (b) of subdivision two-a of this section and the operator of the vehicle is a parent, guardian, or custodian of, or other person legally responsible for, a child aged fifteen years or less who is a passenger in such vehicle, then the officer shall report or cause a report to be made, if applicable, in accordance with title six of article six of the social services law.
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§ 1192-a. Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se.
No person under the age of twenty-one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety-two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety-four-a of this article. Except as otherwise provided in subdivision five of section eleven hundred ninety-two of this article, this section shall not apply to a person who operates a commercial motor vehicle. Notwithstanding any provision of law to the contrary, a finding that a person under the age of twenty-one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense.
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§ 1193. Sanctions.
1. Criminal penalties.
(a) Driving while ability impaired. A violation of subdivision one of section eleven hundred
ninety-two of this article shall be a traffic infraction and shall be
punishable by a fine of not less than three hundred dollars nor more
than five hundred dollars or by imprisonment in a penitentiary or county
jail for not more than fifteen days, or by both such fine and
imprisonment. A person who operates a vehicle in violation of such
subdivision after having been convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article within
the preceding five years shall be punished by a fine of not less than
five hundred dollars nor more than seven hundred fifty dollars, or by
imprisonment of not more than thirty days in a penitentiary or county
jail or by both such fine and imprisonment. A person who operates a
vehicle in violation of such subdivision after having been convicted two
or more times of a violation of any subdivision of section eleven
hundred ninety-two of this article within the preceding ten years shall
be guilty of a misdemeanor, and shall be punished by a fine of not less
than seven hundred fifty dollars nor more than fifteen hundred dollars,
or by imprisonment of not more than one hundred eighty days in a
penitentiary or county jail or by both such fine and imprisonment.
(b) Driving while intoxicated or while ability impaired by drugs or
while ability impaired by the combined influence of drugs or of alcohol
and any drug or drugs; aggravated driving while intoxicated; misdemeanor
offenses.
(i) A violation of subdivision two, three, four or four-a of
section eleven hundred ninety-two of this article shall be a misdemeanor
and shall be punishable by a fine of not less than five hundred dollars
nor more than one thousand dollars, or by imprisonment in a penitentiary
or county jail for not more than one year, or by both such fine and
imprisonment. A violation of paragraph (a) of subdivision two-a of
section eleven hundred ninety-two of this article shall be a misdemeanor
and shall be punishable by a fine of not less than one thousand dollars
nor more than two thousand five hundred dollars or by imprisonment in a
penitentiary or county jail for not more than one year, or by both such
fine and imprisonment.
** (ii) In addition to the imposition of any fine or period of
imprisonment set forth in this paragraph, the court shall also sentence
such person convicted of a violation of subdivision two, two-a or three
of section eleven hundred ninety-two of this article to a period of
probation or conditional discharge, as a condition of which it shall
order such person to install and maintain, in accordance with the
provisions of section eleven hundred ninety-eight of this article, an
ignition interlock device in any motor vehicle owned or operated by such
person during the term of such probation or conditional discharge
imposed for such violation of section eleven hundred ninety-two of this
article and in no event for less than six months. Provided, however, the
court may not authorize the operation of a motor vehicle by any person
whose license or privilege to operate a motor vehicle has been revoked
pursuant to the provisions of this section.
** NB Effective August 15, 2010
(c) Felony offenses. (i) A person who operates a vehicle (A) in
violation of subdivision two, two-a, three, four or four-a of section
eleven hundred ninety-two of this article after having been convicted of
a violation of subdivision two, two-a, three, four or four-a of such
section or of vehicular assault in the second or first degree, as
defined, respectively, in sections 120.03 and 120.04 and aggravated
vehicular assault as defined in section 120.04-a of the penal law or of
vehicular manslaughter in the second or first degree, as defined,
respectively, in sections 125.12 and 125.13 and aggravated vehicular
homicide as defined in section 125.14 of such law, within the preceding
ten years, or (B) in violation of paragraph (b) of subdivision two-a of
section eleven hundred ninety-two of this article shall be guilty of a
class E felony, and shall be punished by a fine of not less than one
thousand dollars nor more than five thousand dollars or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment.
(ii) A person who operates a vehicle in violation of subdivision two,
two-a, three, four or four-a of section eleven hundred ninety-two of
this article after having been convicted of a violation of subdivision
two, two-a, three, four or four-a of such section or of vehicular
assault in the second or first degree, as defined, respectively, in
sections 120.03 and 120.04 and aggravated vehicular assault as defined
in section 120.04-a of the penal law or of vehicular manslaughter in the
second or first degree, as defined, respectively, in sections 125.12 and
125.13 and aggravated vehicular homicide as defined in section 125.14 of
such law, twice within the preceding ten years, shall be guilty of a
class D felony, and shall be punished by a fine of not less than two
thousand dollars nor more than ten thousand dollars or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment.
(iii) In addition to the imposition of any fine or period of
imprisonment set forth in this paragraph, the court shall also sentence
such person convicted of a violation of subdivision two, two-a or three
of section eleven hundred ninety-two of this article to a period of
probation or conditional discharge, as a condition of which it shall
order such person to install and maintain, in accordance with the
provisions of section eleven hundred ninety-eight of this article, an
ignition interlock device in any motor vehicle owned or operated by such
person during the term of such probation or conditional discharge
imposed for such violation of section eleven hundred ninety-two of this
article and in no event for a period of less than six months. Provided,
however, the court may not authorize the operation of a motor vehicle by
any person whose license or privilege to operate a motor vehicle has
been revoked pursuant to the provisions of this section.
(d) Alcohol or drug related offenses; special vehicles. (1) Except as
provided in subparagraph four of this paragraph, a violation of
subdivision one, two, three, four or four-a of section eleven hundred
ninety-two of this article wherein the violator is operating a taxicab
as defined in section one hundred forty-eight-a of this chapter, or
livery as defined in section one hundred twenty-one-e of this chapter,
and such taxicab or livery is carrying a passenger for compensation, or
a truck with a GVWR of more than eighteen thousand pounds but not more
than twenty-six thousand pounds and which is not a commercial motor
vehicle shall be a misdemeanor punishable by a fine of not less than
five hundred dollars nor more than fifteen hundred dollars or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment. A violation of subdivision two-a of section
eleven hundred ninety-two of this article wherein the violator is
operating a taxicab as defined in section one hundred forty-eight-a of
this chapter, or livery as defined in section one hundred twenty-one-e
of this chapter, and such taxicab or livery is carrying a passenger for
compensation, or a truck with a GVWR of more than eighteen thousand
pounds but not more than twenty-six thousand pounds and which is not a
commercial motor vehicle shall be a class E felony punishable by a fine
of not less than one thousand dollars nor more than five thousand
dollars or by a period of imprisonment as provided in the penal law, or
by both such fine and imprisonment.
(1-a) A violation of subdivision one of section eleven hundred
ninety-two of this article wherein the violator is operating a school
bus as defined in section one hundred forty-two of this chapter and such
school bus is carrying at least one student passenger shall be a
misdemeanor punishable by a fine of not less than five hundred dollars
nor more than fifteen hundred dollars or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment.
(2) A violation of subdivision five of section eleven hundred
ninety-two of this article shall be a traffic infraction punishable as
provided in paragraph (a) of this subdivision. Except as provided in
subparagraph three or five of this paragraph, a violation of subdivision
one, two, three, four, four-a or six of section eleven hundred
ninety-two of this article wherein the violator is operating a
commercial motor vehicle, or any motor vehicle registered or
registerable under schedule F of subdivision seven of section four
hundred one of this chapter shall be a misdemeanor. A violation of
subdivision one, two, three, four or four-a of section eleven hundred
ninety-two of this article shall be punishable by a fine of not less
than five hundred dollars nor more than fifteen hundred dollars or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment. A violation of subdivision six of section eleven
hundred ninety-two of this article shall be punishable by a fine of not
less than five hundred dollars nor more than fifteen hundred dollars or
by a period of imprisonment not to exceed one hundred eighty days, or by
both such fine and imprisonment. A person who operates any such vehicle
in violation of such subdivision six after having been convicted of a
violation of subdivision one, two, two-a, three, four, four-a or six of
section eleven hundred ninety-two of this article within the preceding
five years shall be punishable by a fine of not less than five hundred
dollars nor more than fifteen hundred dollars or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment. A violation of subdivision two-a of section eleven hundred
ninety-two of this article wherein the violator is operating a
commercial motor vehicle, or any motor vehicle registered or
registerable under schedule F of subdivision seven of section four
hundred one of this chapter shall be a class E felony punishable by a
fine of not less than one thousand dollars nor more than five thousand
dollars or by a period of imprisonment as provided in the penal law, or
by both such fine and imprisonment.
(3) A violation of subdivision one of section eleven hundred
ninety-two of this article wherein the violator is operating a motor
vehicle with a gross vehicle weight rating of more than eighteen
thousand pounds which contains flammable gas, radioactive materials or
explosives shall be a misdemeanor punishable by a fine of not less than
five hundred dollars nor more than fifteen hundred dollars or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment.
(4) (i) A person who operates a vehicle in violation of subdivision
one, two, two-a, three, four or four-a of section eleven hundred
ninety-two of this article and which is punishable as provided in
subparagraph one, one-a, two or three of this paragraph after having
been convicted of a violation of any such subdivision of section eleven
hundred ninety-two of this article and penalized under subparagraph one,
one-a, two or three of this paragraph within the preceding ten years,
shall be guilty of a class E felony, which shall be punishable by a fine
of not less than one thousand dollars nor more than five thousand
dollars, or by a period of imprisonment as provided in the penal law, or
by both such fine and imprisonment. A person who operates a vehicle in
violation of subdivision six of section eleven hundred ninety-two of
this article after having been convicted of two or more violations of
subdivisions one, two, two-a, three, four, four-a or six of section
eleven hundred ninety-two of this article within the preceding five
years, any one of which was a misdemeanor, shall be guilty of a class E
felony, which shall be punishable by a fine of not less than one
thousand dollars nor more than five thousand dollars, or by a period of
imprisonment as provided in the penal law, or by both such fine and
imprisonment. In addition, any person sentenced pursuant to this
subparagraph shall be subject to the disqualification provided in
subparagraph three of paragraph (e) of subdivision two of this section.
(ii) A person who operates a vehicle in violation of subdivision one,
two, two-a, three, four or four-a of section eleven hundred ninety-two
of this article and which is punishable as provided in subparagraph one,
one-a, two or three of this paragraph after having been convicted of a
violation of any such subdivision of section eleven hundred ninety-two
of this article and penalized under subparagraph one, one-a, two or
three of this paragraph twice within the preceding ten years, shall be
guilty of a class D felony, which shall be punishable by a fine of not
less than two thousand dollars nor more than ten thousand dollars, or by
a period of imprisonment as provided in the penal law, or by both such
fine and imprisonment. A person who operates a vehicle in violation of
subdivision six of section eleven hundred ninety-two of this article
after having been convicted of three or more violations of subdivisions
one, two, two-a, three, four, four-a or six of section eleven hundred
ninety-two of this article within the preceding five years, any one of
which was a misdemeanor, shall be guilty of a class D felony, which
shall be punishable by a fine of not less than two thousand dollars nor
more than ten thousand dollars, or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment. In
addition, any person sentenced pursuant to this subparagraph shall be
subject to the disqualification provided in subparagraph three of
paragraph (e) of subdivision two of this section.
(4-a) A violation of subdivision two, three, four or four-a of section
eleven hundred ninety-two of this article wherein the violator is
operating a school bus as defined in section one hundred forty-two of
this chapter and such school bus is carrying at least one student
passenger shall be a class E felony punishable by a fine of not less
than one thousand dollars nor more than five thousand dollars, or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment. A violation of subdivision two-a of section
eleven hundred ninety-two of this article wherein the violator is
operating a school bus as defined in section one hundred forty-two of
this chapter and such school bus is carrying at least one student
passenger shall be a class D felony punishable by a fine of not less
than two thousand dollars nor more than ten thousand dollars, or by a
period of imprisonment as provided in the penal law, or by both such
fine and imprisonment.
(5) A violation of subdivision two, three, four or four-a of section
eleven hundred ninety-two of this article wherein the violator is
operating a motor vehicle with a gross vehicle weight rating of more
than eighteen thousand pounds which contains flammable gas, radioactive
materials or explosives, shall be a class E felony punishable by a fine
of not less than one thousand dollars and such other penalties as
provided for in the penal law; provided, however, that a conviction for
such violation shall not be considered a predicate felony pursuant to
section 70.06 of such law, or a previous felony conviction pursuant to
section 70.10 of such law. A violation of subdivision two-a of section
eleven hundred ninety-two of this article wherein the violator is
operating a motor vehicle with a gross vehicle weight rating of more
than eighteen thousand pounds which contains flammable gas, radioactive
materials or explosives, shall be a class D felony punishable by a fine
of not less than two thousand nor more than ten thousand dollars and
such other penalties as provided for in the penal law; provided,
however, that a conviction for such violation shall not be considered a
predicate felony pursuant to section 70.06 of such law, or a previous
felony conviction pursuant to section 70.10 of such law.
(6) The sentences required to be imposed by subparagraph one, one-a,
two, three, four, four-a or five of this paragraph shall be imposed
notwithstanding any contrary provision of this chapter or the penal law.
(7) Nothing contained in this paragraph shall prohibit the imposition
of a charge of any other felony set forth in this or any other provision
of law for any acts arising out of the same incident.
(e) Certain sentences prohibited. Notwithstanding any provisions of
the penal law, no judge or magistrate shall impose a sentence of
unconditional discharge for a violation of any subdivision of section
eleven hundred ninety-two of this article nor shall a judge or
magistrate impose a sentence of conditional discharge or probation
unless such conditional discharge or probation is accompanied by a
sentence of a fine as provided in this subdivision.
(f) Where the court imposes a sentence for a violation of section
eleven hundred ninety-two of this article, the court may require the
defendant, as a part of or as a condition of such sentence, to attend a
single session conducted by a victims impact program. For purposes of
this section, "victims impact program" means a program operated by a
county, a city with a population of one million or more, by a
not-for-profit organization authorized by any such county or city, or a
combination thereof, in which presentations are made concerning the
impact of operating a motor vehicle while under the influence of alcohol
or drugs to one or more persons who have been convicted of such
offenses. A description of any such program shall be filed with the
commissioner and with the coordinator of the special traffic options
program for driving while intoxicated established pursuant to section
eleven hundred ninety-seven of this article, and shall be made available
to the court upon request. Nothing contained herein shall be construed
to require any governmental entity to create such a victim impact
program.
(g) The division of probation and correctional alternatives shall
promulgate regulations governing the monitoring of compliance by persons
ordered to install and maintain ignition interlock devices to provide
standards for monitoring by departments of probation, and options for
monitoring of compliance by such persons, that counties may adopt as an
alternative to monitoring by a department of probation.
1-a. Additional penalties. (a) Except as provided for in paragraph (b)
of this subdivision, a person who operates a vehicle in violation of
subdivision two or three of section eleven hundred ninety-two of this
article after having been convicted of a violation of subdivision two or
three of such section within the preceding five years shall, in addition
to any other penalties which may be imposed pursuant to subdivision one
of this section, be sentenced to a term of imprisonment of five days or,
as an alternative to such imprisonment, be required to perform thirty
days of service for a public or not-for-profit corporation, association,
institution or agency as set forth in paragraph (h) of subdivision two
of section 65.10 of the penal law as a condition of sentencing for such
violation. Notwithstanding the provisions of this paragraph, a sentence
of a term of imprisonment of five days or more pursuant to the
provisions of subdivision one of this section shall be deemed to be in
compliance with this subdivision.
(b) A person who operates a vehicle in violation of subdivision two or
three of section eleven hundred ninety-two of this article after having
been convicted on two or more occasions of a violation of any of such
subdivisions within the preceding five years shall, in addition to any
other penalties which may be imposed pursuant to subdivision one of this
section, be sentenced to a term of imprisonment of ten days or, as an
alternative to such imprisonment, be required to perform sixty days of
service for a public or not-for-profit corporation, association,
institution or agency as set forth in paragraph (h) of subdivision two
of section 65.10 of the penal law as a condition of sentencing for such
violation. Notwithstanding the provisions of this paragraph, a sentence
of a term of imprisonment of ten days or more pursuant to the provisions
of subdivision one of this section shall be deemed to be in compliance
with this subdivision.
(c) A court sentencing a person pursuant to paragraph (a) or (b) of
this subdivision shall:
(i) order the installation of an ignition
interlock device approved pursuant to section eleven hundred
ninety-eight of this article in any motor vehicle owned or operated by
the person so sentenced. Such devices shall remain installed during any
period of license revocation required to be imposed pursuant to
paragraph (b) of subdivision two of this section, and, upon the
termination of such revocation period, for an additional period as
determined by the court; and
(ii) order that such person receive an
assessment of the degree of their alcohol or substance abuse and
dependency pursuant to the provisions of section eleven hundred
ninety-eight-a of this article. Where such assessment indicates the
need for treatment, such court is authorized to impose treatment as a
condition of such sentence except that such court shall impose treatment
as a condition of a sentence of probation or conditional discharge
pursuant to the provisions of subdivision three of section eleven
hundred ninety-eight-a of this article. Any person ordered to install an
ignition interlock device pursuant to this paragraph shall be subject to
the provisions of subdivisions four, five, seven, eight and nine of
section eleven hundred ninety-eight of this article.
(d) Confidentiality of records. The provisions of subdivision six of
section eleven hundred ninety-eight-a of this article shall apply to the
records and content of all assessments and treatment conducted pursuant
to this subdivision.
2. License sanctions. (a) Suspensions. Except as otherwise provided in
this subdivision, a license shall be suspended and a registration may be
suspended for the following periods:
(1) Driving while ability impaired. Ninety days, where the holder is
convicted of a violation of subdivision one of section eleven hundred
ninety-two of this article;
(2) Persons under the age of twenty-one; driving after having consumed
alcohol. Six months, where the holder has been found to have operated a
motor vehicle after having consumed alcohol in violation of section
eleven hundred ninety-two-a of this article where such person was under
the age of twenty-one at the time of commission of such violation.
(b) Revocations. A license shall be revoked and a registration may be
revoked for the following minimum periods:
(1) Driving while ability impaired; prior offense. Six months, where
the holder is convicted of a violation of subdivision one of section
eleven hundred ninety-two of this article committed within five years of
a conviction for a violation of any subdivision of section eleven
hundred ninety-two of this article.
(1-a) Driving while ability impaired; misdemeanor offense. Six months,
where the holder is convicted of a violation of subdivision one of
section eleven hundred ninety-two of this article committed within ten
years of two previous convictions for a violation of any subdivision of
section eleven hundred ninety-two of this article.
(2) Driving while intoxicated or while ability impaired by drugs or
while ability impaired by the combined influence of drugs or of alcohol
and any drug or drugs; aggravated driving while intoxicated. Six months,
where the holder is convicted of a violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of this article. One
year where the holder is convicted of a violation of subdivision two-a
of section eleven hundred ninety-two of this article.
(3) Driving while intoxicated or while ability impaired by drugs or
while ability impaired by the combined influence of drugs or of alcohol
and any drug or drugs; aggravated driving while intoxicated; prior
offense. One year, where the holder is convicted of a violation of
subdivision two, three, four or four-a of section eleven hundred
ninety-two of this article committed within ten years of a conviction
for a violation of subdivision two, three, four or four-a of section
eleven hundred ninety-two of this article. Eighteen months, where the
holder is convicted of a violation of subdivision two-a of section
eleven hundred ninety-two of this article committed within ten years of
a conviction for a violation of subdivision two, two-a, three, four or
four-a of section eleven hundred ninety-two of this article; or where
the holder is convicted of a violation of subdivision two, three, four
or four-a of section eleven hundred ninety-two of this article committed
within ten years of a conviction for a violation of subdivision two-a of
section eleven hundred ninety-two of this article.
(4) Special vehicles other than school buses. One year, where the
holder is convicted of a violation of any subdivision of section eleven
hundred ninety-two of this article and is sentenced pursuant to
subparagraph one of paragraph (d) of subdivision one of this section.
(4-a) School buses. (A) One year, where the holder is convicted of a
violation of any subdivision of section eleven hundred ninety-two of
this article, such violation was committed while the holder was driving
a school bus, and the holder is sentenced pursuant to subparagraph one,
one-a or four-a of paragraph (d) of subdivision one of this section.
(B) Three years where the holder is convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article, such
violation was committed while the holder was driving a school bus, and
the holder is sentenced pursuant to subparagraph four of paragraph (d)
of subdivision one of this section.
(C) Notwithstanding the provisions of the opening paragraph of this
paragraph (b), the commissioner shall not revoke the registration of a
school bus driven in violation of section eleven hundred ninety-two of
this article.
(5) Holder of a commercial driver's license. (i) Except as otherwise
provided in this subparagraph, one year where the holder of a commercial
driver's license is convicted of a violation of any subdivision of
section eleven hundred ninety-two of this article or if such holder is
convicted of an offense consisting of operating a motor vehicle under
the influence of alcohol or drugs where such conviction was had outside
of this state.
(ii) Three years, where the holder is convicted of a violation of any
subdivision of section eleven hundred ninety-two of this article, such
violation was committed while the holder was operating a commercial
motor vehicle transporting hazardous materials or if such holder is
convicted of an offense consisting of operating a motor vehicle under
the influence of alcohol or drugs where such conviction was had outside
of this state.
(6) Persons under the age of twenty-one. One year, where the holder is
convicted of or adjudicated a youthful offender for a violation of any
subdivision of section eleven hundred ninety-two of this article, or is
convicted of or receives a youthful offender or other juvenile
adjudication for an offense consisting of operating a motor vehicle
under the influence of intoxicating liquor where the conviction, or
youthful offender or other juvenile adjudication was had outside this
state, where such person was under the age of twenty-one at the time of
commission of such violation.
(7) Persons under the age of twenty-one; prior offense or finding. One
year or until the holder reaches the age of twenty-one, whichever is the
greater period of time, where the holder has been found to have operated
a motor vehicle after having consumed alcohol in violation of section
eleven hundred ninety-two-a of this article, or is convicted of, or
adjudicated a youthful offender for, a violation of any subdivision of
section eleven hundred ninety-two of this article, or is convicted of or
receives a youthful offender or juvenile adjudication for an offense
consisting of operating a motor vehicle under the influence of
intoxicating liquor where the conviction, or youthful offender or other
juvenile adjudication was had outside this state, where such person was
under the age of twenty-one at the time of commission of such violation
and has previously been found to have operated a motor vehicle after
having consumed alcohol in violation of section eleven hundred
ninety-two-a of this article, or has previously been convicted of, or
adjudicated a youthful offender for, any violation of section eleven
hundred ninety-two of this article not arising out of the same incident,
or has previously been convicted of or received a youthful offender or
juvenile adjudication for an offense consisting of operating a motor
vehicle under the influence of intoxicating liquor when the conviction,
or youthful offender or other juvenile adjudication was had outside this
state and not arising out of the same.
* (8) Out-of-state offenses. Except as provided in subparagraph six or
seven of this paragraph: (i) ninety days, where the holder is convicted
of an offense consisting of operating a motor vehicle under the
influence of intoxicating liquor where the conviction was had outside
this state and (ii) six months, where the holder is convicted of, or
receives a youthful offender or other juvenile adjudication, which would
have been a misdemeanor or felony if committed by an adult, in
connection with, an offense consisting of operating a motor vehicle
under the influence of or while impaired by the use of drugs where the
conviction or youthful offender or other juvenile adjudication was had
outside this state.
* NB Effective until October 1, 2011
* (8) Out-of-state offenses. Except as provided in subparagraph six or
seven of this paragraph, ninety days, where the holder is convicted of
an offense consisting of operating a motor vehicle under the influence
of intoxicating liquor or drugs where the conviction was had outside
this state.
* NB Effective October 1, 2011
(9) Effect of rehabilitation program. No period of revocation arising
out of subparagraph four, five, six or seven of this paragraph may be
set aside by the commissioner for the reason that such person was a
participant in the alcohol and drug rehabilitation program set forth in
section eleven hundred ninety-six of this chapter.
(10) Action required by commissioner. Where a court fails to impose,
or incorrectly imposes, a suspension or revocation required by this
subdivision, the commissioner shall, upon receipt of a certificate of
conviction filed pursuant to section five hundred fourteen of this
chapter, impose such mandated suspension or revocation, which shall
supersede any such order which the court may have imposed.
(11) Limitation of certain mandatory revocations. Where revocation is
mandatory pursuant to subparagraph five of this paragraph for a
conviction of a violation of subdivision five of section eleven hundred
ninety-two of this article, such revocation shall be issued only by the
commissioner and shall be applicable only to that portion of the
holder's driver's license or privilege which permits the operation of
commercial motor vehicles, and the commissioner shall immediately issue
a license, other than a commercial driver's license, to such person
provided that such person is otherwise eligible to receive such license
and further provided that issuing a license to such person does not
create a substantial traffic safety hazard.
(12) Permanent revocation. (a) Notwithstanding any other provision of
this chapter to the contrary, whenever a revocation is imposed upon a
person for the refusal to submit to a chemical test pursuant to the
provisions of section eleven hundred ninety-four of this article or
conviction for any violation of section eleven hundred ninety-two of
this article for which a sentence of imprisonment may be imposed, and
such person has:
(i) within the previous four years been twice convicted
of any provisions of section eleven hundred ninety-two of this article
or a violation of the penal law for which a violation of such section
eleven hundred ninety-two is an essential element and at least one such
conviction was for a crime, or has twice been found to have refused to
submit to a chemical test pursuant to section eleven hundred ninety-four
of this article, or has any combination of two such convictions and
findings of refusal not arising out of the same incident; or
(ii) within the previous eight years been convicted three times of any provision of
section eleven hundred ninety-two of this article for which a sentence
of imprisonment may be imposed or a violation of the penal law for which
a violation of such section eleven hundred ninety-two is an essential
element and at least two such convictions were for crimes, or has been
found, on three separate occasions, to have refused to submit to a
chemical test pursuant to section eleven hundred ninety-four of this
article, or has any combination of such convictions and findings of
refusal not arising out of the same incident, such revocation shall be
permanent.
(b) The permanent driver's license revocation required by clause (a)
of this subparagraph shall be waived by the commissioner after a period
of five years has expired since the imposition of such permanent
revocation, provided that during such five-year period such person has
not been found to have refused a chemical test pursuant to section
eleven hundred ninety-four of this article while operating a motor
vehicle and has not been convicted of a violation of any subdivision of
section eleven hundred ninety-two of this article or section five
hundred eleven of this chapter or a violation of the penal law for which
a violation of any subdivision of such section eleven hundred ninety-two
is an essential element and either:
(i) that such person provides acceptable documentation to the
commissioner that such person has voluntarily enrolled in and
successfully completed an appropriate rehabilitation program; or
(ii) that such person is granted a certificate of relief from
disabilities as provided for in section seven hundred one of the
correction law by the court in which such person was last sentenced. Provided, however, that the commissioner may, on a case by case basis, refuse to restore a license which otherwise would be restored pursuant to this item, in the interest of the public safety and welfare.
(c) For revocations imposed pursuant to clause (a) of this
subparagraph, the commissioner may adopt rules to permit conditional or
restricted operation of a motor vehicle by any such person after a
mandatory revocation period of not less than three years subject to such
criteria, terms and conditions as established by the commissioner.
(d) Upon (i) a finding of refusal after having been convicted three
times within four years of a violation of any subdivision of section
eleven hundred ninety-two of this article or of the penal law for which
a violation of any subdivision of such section eleven hundred ninety-two
is an essential element or any combination of three such convictions not
arising out of the same incident within four years or
(ii) a fourth conviction of any subdivision of section eleven hundred ninety-two of
this article after having been convicted of any such subdivision of such
section eleven hundred ninety-two or of the penal law for which a
violation of any of such subdivisions of such section eleven hundred
ninety-two is an essential element or any combination of three such
convictions not arising out of the same incident within four years or
(iii) a finding of refusal after having been convicted four times within
eight years of a violation of any subdivision of section eleven hundred
ninety-two of this article or of the penal law for which a violation of
any of such subdivisions of such section eleven hundred ninety-two is an
essential element or any combination of four such convictions not
arising out of the same incident within eight years or
(iv) a fifth conviction of any subdivision of section eleven hundred ninety-two of
this article after having been convicted of such subdivision or of the
penal law for which a violation of any of such subdivisions of such
section eleven hundred ninety-two is an essential element or any
combination of four such convictions not arising out of the same
incident within eight years, such revocation shall be permanent.
(e) The permanent driver's license revocation required by clause (d)
of this subparagraph may be waived by the commissioner after a period of
eight years has expired since the imposition of such permanent
revocation provided:
(i) that during such eight-year period such person has not been found
to have refused a chemical test pursuant to section eleven hundred
ninety-four of this article while operating a motor vehicle and has not
been convicted of a violation of any subdivision of section eleven
hundred ninety-two of this article or section five hundred eleven of
this chapter or a violation of the penal law for which a violation of
any such subdivisions of such section eleven hundred ninety-two is an
essential element; and
(ii) that such person provides acceptable documentation to the
commissioner that such person has voluntarily enrolled in and
successfully completed an appropriate rehabilitation program; and
(iii) after such documentation is accepted, that such person is
granted a certificate of relief from disabilities as provided for in
section seven hundred one of the correction law by the court in which
such person was last sentenced.
Notwithstanding the provisions of this clause, nothing contained in
this clause shall be deemed to require the commissioner to restore a
license to an applicant who otherwise has complied with the requirements
of this item, in the interest of the public safety and welfare.
(f) Nothing contained in this subparagraph shall be deemed to reduce a
license revocation period imposed pursuant to any other provision of
law.
* (c) Reissuance of licenses; restrictions. (1) Except as otherwise
provided in this paragraph, where a license is revoked pursuant to
paragraph (b) of this subdivision, no new license shall be issued after
the expiration of the minimum period specified in such paragraph, except
in the discretion of the commissioner.
(2) Where a license is revoked pursuant to subparagraph two, three or
eight of paragraph (b) of this subdivision for a violation of
subdivision four of section eleven hundred ninety-two of this article,
and where the individual does not have a driver's license or the
individual's license was suspended at the time of conviction or youthful
offender or other juvenile adjudication, the commissioner shall not
issue a new license nor restore the former license for a period of six
months after such individual would otherwise have become eligible to
obtain a new license or to have the former license restored; provided,
however, that during such delay period the commissioner may issue a
restricted use license pursuant to section five hundred thirty of this
chapter.
(3) In no event shall a new license be issued where a person has been
twice convicted of a violation of subdivision three, four or four-a of
section eleven hundred ninety-two of this article or of driving while
intoxicated or of driving while ability is impaired by the use of a drug
or of driving while ability is impaired by the combined influence of
drugs or of alcohol and any drug or drugs where physical injury, as
defined in section 10.00 of the penal law, has resulted from such
offense in each instance.
* NB Effective until October 1, 2011
* (c) Reissuance of licenses; restrictions. Where a license is revoked
pursuant to paragraph (b) of this subdivision, no new license shall be
issued after the expiration of the minimum period specified in such
paragraph, except in the discretion of the commissioner; provided,
however, that in no event shall a new license be issued where a person
has been twice convicted of a violation of subdivision three, four or
four-a of section eleven hundred ninety-two of this article or of
driving while intoxicated or of driving while ability is impaired by the
use of a drug or of driving while ability is impaired by the combined
influence of drugs or of alcohol and any drug or drugs where physical
injury, as defined in section 10.00 of the penal law, has resulted from
such offense in each instance.
* NB Effective October 1, 2011
(d) Suspension or revocation; sentencing. (1) Notwithstanding anything
to the contrary contained in a certificate of relief from disabilities
issued pursuant to article twenty-three of the correction law, where a
suspension or revocation, other than a revocation required to be issued
by the commissioner, is mandatory pursuant to paragraph (a) or (b) of
this subdivision, the magistrate, justice or judge shall issue an order
suspending or revoking such license upon sentencing, and the license
holder shall surrender such license to the court. Except as hereinafter
provided, such suspension or revocation shall take effect immediately.
(2) Except where the license holder has been charged with a violation
of article one hundred twenty or one hundred twenty-five of the penal
law arising out of the same incident or convicted of such violation or a
violation of any subdivision of section eleven hundred ninety-two of
this article within the preceding five years, the judge, justice or
magistrate may issue an order making said license suspension or
revocation take effect twenty days after the date of sentencing. The
license holder shall be given a copy of said order permitting the
continuation of driving privileges for twenty days after sentencing, if
granted by the court. The court shall forward to the commissioner the
certificates required in sections five hundred thirteen and five hundred
fourteen of this chapter, along with a copy of any order issued pursuant
to this paragraph and the license, within ninety-six hours of
sentencing.
(e) Special provisions. (1) Suspension pending prosecution; procedure.
a. Without notice, pending any prosecution, the court shall suspend such
license, where the holder has been charged with a violation of
subdivision two, two-a, three, four or four-a of section eleven hundred
ninety-two of this article and either
(i) a violation of a felony under
article one hundred twenty or one hundred twenty-five of the penal law
arising out of the same incident, or
(ii) has been convicted of any
violation under section eleven hundred ninety-two of this article within
the preceding five years.
b. The suspension under the preceding clause shall occur no later than
twenty days after the holder's first appearance before the court on the
charges or at the conclusion of all proceedings required for the
arraignment. In order for the court to impose such suspension it must
find that the accusatory instrument conforms to the requirements of
section 100.40 of the criminal procedure law and there exists reasonable
cause to believe that the holder operated a motor vehicle in violation
of subdivision two, two-a, three, four or four-a of section eleven
hundred ninety-two of this article and either
(i) the person had been
convicted of any violation under such section eleven hundred ninety-two
of this article within the preceding five years; or
(ii) that the holder
committed a violation of a felony under article one hundred twenty or
one hundred twenty-five of the penal law. At such time the holder shall
be entitled to an opportunity to make a statement regarding the
enumerated issues and to present evidence tending to rebut the court's
findings. Where such suspension is imposed upon a pending charge of a
violation of a felony under article one hundred twenty or one hundred
twenty-five of the penal law and the holder has requested a hearing
pursuant to article one hundred eighty of the criminal procedure law,
the court shall conduct such hearing. If upon completion of the hearing,
the court fails to find that there is reasonable cause to believe that
the holder committed a felony under article one hundred twenty or one
hundred twenty-five of the penal law and the holder has not been
previously convicted of any violation of section eleven hundred
ninety-two of this article within the preceding five years the court
shall promptly notify the commissioner and direct restoration of such
license to the license holder unless such license is suspended or
revoked pursuant to any other provision of this chapter.
(2) Bail forfeiture. A license shall be suspended where the holder
forfeits bail upon a charge of a violation of any subdivision of section
eleven hundred ninety-two of this article. Such suspension shall not be
terminated until the holder submits to the jurisdiction of the court in
which the bail was forfeited.
(3) Permanent disqualification from operating certain motor vehicles.
a. Except as otherwise provided herein, in addition to any revocation
set forth in subparagraph four or five of paragraph (b) of this
subdivision, any person sentenced pursuant to subparagraph three of
paragraph (d) of subdivision one of this section shall be permanently
disqualified from operating any vehicle set forth in such paragraph. In
addition, the commissioner shall not issue such person a license valid
for the operation of any vehicle set forth therein by such person. The
commissioner may waive such disqualification and prohibition
hereinbefore provided after a period of five years has expired from such
sentencing provided:
(i) that during such five year period such person has not violated any
of the provisions of section eleven hundred ninety-two of this article
or any alcohol or drug related traffic offense in this state or in any
jurisdiction outside this state;
(ii) that such person provides acceptable documentation to the
commissioner that such person is not in need of alcohol or drug
treatment or has satisfactorily completed a prescribed course of such
treatment; and
(iii) after such documentation is accepted, that such person is
granted a certificate of relief from disabilities as provided for in
section seven hundred one of the correction law by the court in which
such person was last penalized pursuant to paragraph (d) of subdivision
one of this section.
b. Any person who holds a commercial driver's license and is convicted
of a violation of any subdivision of section eleven hundred ninety-two
of this article who has had a prior finding of refusal to submit to a
chemical test pursuant to section eleven hundred ninety-four of this
article or has had a prior conviction of any of the following offenses:
any violation of section eleven hundred ninety-two of this article; any
violation of subdivision one or two of section six hundred of this
chapter; or has a prior conviction of any felony involving the use of a
motor vehicle pursuant to paragraph (a) of subdivision one of section
five hundred ten-a of this chapter, shall be permanently disqualified
from operating a commercial motor vehicle. The commissioner may waive
such disqualification and prohibition hereinbefore provided after a
period of ten years has expired from such sentence provided:
(i) that during such ten year period such person has not been found to
have refused a chemical test pursuant to section eleven hundred
ninety-four of this article while operating a motor vehicle and has not
been convicted of any one of the following offenses while operating a
motor vehicle: any violation of section eleven hundred ninety-two of
this article; any violation of subdivision one or two of section six
hundred of this chapter; or has a prior conviction of any felony
involving the use of a motor vehicle pursuant to paragraph (a) of
subdivision one of section five hundred ten-a of this chapter;
(ii) that such person provides acceptable documentation to the
commissioner that such person is not in need of alcohol or drug
treatment or has satisfactorily completed a prescribed course of such
treatment; and
(iii) after such documentation is accepted, that such person is
granted a certificate of relief from disabilities as provided for in
section seven hundred one of the correction law by the court in which
such person was last penalized pursuant to paragraph (d) of subdivision
one of this section.
c. Upon a third finding of refusal and/or conviction of any of the
offenses which require a permanent commercial driver's license
revocation, such permanent revocation may not be waived by the
commissioner under any circumstances.
(4) Youthful offenders. Where a youth is determined to be a youthful
offender, following a conviction of a violation of section eleven
hundred ninety-two of this article for which a license suspension or
revocation is mandatory, the court shall impose such suspension or
revocation as is otherwise required upon conviction and, further, shall
notify the commissioner of said suspension or revocation and its finding
that said violator is granted youthful offender status as is required
pursuant to section five hundred thirteen of this chapter.
(5) Probation. When a license to operate a motor vehicle has been
revoked pursuant to this chapter, and the holder has been sentenced to a
period of probation pursuant to section 65.00 of the penal law for a
violation of any provision of this chapter, or any other provision of
the laws of this state, and a condition of such probation is that the
holder thereof not operate a motor vehicle or not apply for a license to
operate a motor vehicle during the period of such condition of
probation, the commissioner may not restore such license until the
period of the condition of probation has expired.
(6) Application for new license. Where a license has been revoked
pursuant to paragraph (b) of this subdivision, or where the holder is
subject to a condition of probation as provided in subparagraph five of
this paragraph, application for a new license may be made within
forty-five days prior to the expiration of such minimum period of
revocation or condition of probation, whichever expires last.
* (7) Suspension pending prosecution; excessive blood alcohol content.
a. Except as provided in clause a-1 of this subparagraph, a court shall
suspend a driver's license, pending prosecution, of any person charged
with a violation of subdivision two, two-a, three or four-a of section
eleven hundred ninety-two of this article who, at the time of arrest, is
alleged to have had .08 of one percent or more by weight of alcohol in
such driver's blood as shown by chemical analysis of blood, breath,
urine or saliva, made pursuant to subdivision two or three of section
eleven hundred ninety-four of this article.
a-1. A court shall suspend a class DJ or MJ learner's permit or a
class DJ or MJ driver's license, pending prosecution, of any person who
has been charged with a violation of subdivision one, two, two-a and/or
three of section eleven hundred ninety-two of this article.
b. The suspension occurring under clause a of this subparagraph shall
occur no later than at the conclusion of all proceedings required for
the arraignment and the suspension occurring under clause a-1 of this
subparagraph shall occur immediately after the holder's first appearance
before the court on the charge which shall, whenever possible, be the
next regularly scheduled session of the court after the arrest or at the
conclusion of all proceedings required for the arraignment; provided,
however, that if the results of any test administered pursuant to
section eleven hundred ninety-four of this article are not available
within such time period, the complainant police officer or other public
servant shall transmit such results to the court at the time they become
available, and the court shall, as soon as practicable following the
receipt of such results and in compliance with the requirements of this
subparagraph, suspend such license. In order for the court to impose
such suspension it must find that the accusatory instrument conforms to
the requirements of section 100.40 of the criminal procedure law and
there exists reasonable cause to believe either that
(a) the holder
operated a motor vehicle while such holder had .08 of one percent or
more by weight of alcohol in his or her blood as was shown by chemical
analysis of such person's blood, breath, urine or saliva, made pursuant
to the provisions of section eleven hundred ninety-four of this article
or
(b) the person was the holder of a class DJ or MJ learner's permit or
a class DJ or MJ driver's license and operated a motor vehicle while
such holder was in violation of subdivision one, two and/or three of
section eleven hundred ninety-two of this article. At the time of such
license suspension the holder shall be entitled to an opportunity to
make a statement regarding these two issues and to present evidence
tending to rebut the court's findings.
c. Nothing contained in this subparagraph shall be construed to
prohibit or limit a court from imposing any other suspension pending
prosecution required or permitted by law.
d. Notwithstanding any contrary provision of this chapter, if any
suspension occurring under this subparagraph has been in effect for a
period of thirty days, the holder may be issued a conditional license,
in accordance with section eleven hundred ninety-six of this article,
provided the holder of such license is otherwise eligible to receive
such conditional license. A conditional license issued pursuant to this
subparagraph shall not be valid for the operation of a commercial motor
vehicle. The commissioner shall prescribe by regulation the procedures
for the issuance of such conditional license.
e. If the court finds that the suspension imposed pursuant to this
subparagraph will result in extreme hardship, the court must issue such
suspension, but may grant a hardship privilege, which shall be issued on
a form prescribed by the commissioner. For the purposes of this clause,
"extreme hardship" shall mean the inability to obtain alternative means
of travel to or from the licensee's employment, or to or from necessary
medical treatment for the licensee or a member of the licensee's
household, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee's school, college or university if such travel is necessary for
the completion of the educational degree or certificate. The burden of
proving extreme hardship shall be on the licensee who may present
material and relevant evidence. A finding of extreme hardship may not be
based solely upon the testimony of the licensee. In no event shall
arraignment be adjourned or otherwise delayed more than three business
days solely for the purpose of allowing the licensee to present evidence
of extreme hardship. The court shall set forth upon the record, or
otherwise set forth in writing, the factual basis for such finding. The
hardship privilege shall permit the operation of a vehicle only for
travel to or from the licensee's employment, or to or from necessary
medical treatment for the licensee or a member of the licensee's
household, or if the licensee is a matriculating student enrolled in an
accredited school, college or university travel to or from such
licensee's school, college or university if such travel is necessary for
the completion of the educational degree or certificate. A hardship
privilege shall not be valid for the operation of a commercial motor
vehicle.
* NB Repealed October 1, 2011
(f) Notice of charges to parent or guardian. Notwithstanding the
provisions of subdivision two of section eighteen hundred seven of this
chapter, upon the first scheduled appearance of any person under
eighteen years of age who resides within the household of his or her
parent or guardian upon a charge of a violation of subdivision one, two
and/or three of section eleven hundred ninety-two of this article, the
local criminal court before which such first appearance is scheduled
shall forthwith transmit written notice of such appearance or failure to
make such appearance to the parent or guardian of such minor person;
provided, however, that if an arraignment and conviction of such person
follows such appearance upon the same day, or in case such person waives
arraignment and enters a plea of guilty to the offense as charged in
accordance with the provisions of section eighteen hundred five of this
chapter, transmittal of notice of his or her conviction as provided in
section five hundred fourteen of this chapter shall be sufficient and
the notice required by this paragraph need not be given; provided
further that the failure of a local criminal court to transmit the
notice required by this paragraph shall in no manner affect the validity
of a conviction subsequently obtained.
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Sec. 1227. Consumption or possession of alcoholic beverages in certain motor vehicles.
1. The drinking of alcoholic beverages, or the possession of an open
container containing an alcoholic beverage, in a motor vehicle located upon the
public highways or right-of-way public highway is prohibited. Any operator or
passenger violating this section shall be guilty of a traffic infraction. The
provisions of this section shall not be deemed to prohibit the drinking of
alcoholic beverages or the possession of an open container containing an
alcoholic beverage by passengers in passenger vehicles operated pursuant to a
certificate or permit issued by the department of transportation or the United
States department of transportation. Furthermore, the provisions of this section
shall not be deemed to prohibit the possession of wine which is: (a) resealed in
accordance with the provisions of subdivision four of section eighty-one of the
alcoholic beverage control law; and (b) is transported in the vehicle's trunk or
is transported behind the last upright seat or in an area not normally occupied
by the driver or passenger in a motor vehicle that is not equipped with a
trunk.
2. For the purposes of this section, a passenger vehicle shall mean a vehicle designed to carry ten or more passengers and used to carry passengers for profit or hire.
