NY Veh & Traf L § 1289 (2021)
2021 New York Laws VAT - Vehicle and Traffic Title 7 - Rules of the Road Article 34-D - Operation of Electric Scooters 1289 - Operation of an Electric Scooter While Under the Influence of Alcohol or Drugs.

§  1289. Operation of an electric scooter while under the influence of alcohol or drugs. 1. Offenses;  criminal  penalties.  (a)  Operating  an electric  scooter  while  ability  impaired.  No person shall operate an electric scooter while the person's ability  to  operate  such  electric scooter is impaired by the consumption of alcohol.  (i)  A  violation  of this paragraph shall be a traffic infraction and shall be punishable by a fine of not more than three hundred dollars, or by imprisonment in a penitentiary or  county  jail  for  not  more  than fifteen days, or by both such fine and imprisonment.  (ii)  A  person  who operates an electric scooter in violation of this paragraph after having been convicted of a violation of any paragraph of this subdivision within the preceding five years shall be punished by  a fine of not 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.  (iii) A person who operates an electric scooter in violation  of  this paragraph  after being convicted two or more times of a violation of any paragraph of this subdivision within the preceding ten  years  shall  be guilty  of  a  misdemeanor,  and shall be punished by a fine of not more than one thousand 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) Operating an electric scooter while intoxicated; per se. No person shall operate an electric scooter 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 subdivision five of this section.  (c)  Operating  an electric scooter while intoxicated. No person shall operate an electric scooter while in an intoxicated condition.  (d) Operating an electric scooter while ability impaired by drugs.  No person  shall  operate an electric scooter while the person's ability to operate such electric scooter is impaired  by  the  use  of  a  drug  as defined in this chapter.  (e)  Operating  an  electric  scooter  while  ability  impaired by the combined influence of drugs or of alcohol and  any  drug  or  drugs.  No person  shall  operate an electric scooter while the person's ability to operate such electric scooter is impaired by the combined  influence  of drugs or of alcohol and any drug or drugs.  (f) Penalty. (i) A violation of paragraph (b), (c), (d) or (e) of this subdivision  shall be a misdemeanor and shall be punishable by a fine of not more than 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)  A  person  who  operates  an  electric  scooter  in violation of paragraph (b), (c), (d) or (e) of this  subdivision  after  having  been convicted  of  a  violation  of  paragraph  (b), (c), (d) or (e) of this subdivision within the preceding ten years shall be guilty of a class  E felony,  and  shall  be punished by a fine of not more than one thousand dollars or by a period of imprisonment as provided in the penal law,  or by both such fine and imprisonment.  (iii)  A  person  who  operates  an  electric  scooter in violation of paragraph (b), (c), (d) or (e) of this  subdivision  after  having  been convicted  of  a  violation  of  paragraph  (b), (c), (d) or (e) of this subdivision two or more times within the preceding ten  years  shall  be guilty  of a class E felony, and shall be punished by a fine of not more than four thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.    2. 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 paragraph (b), (c), (d) or (e) of subdivision one of this section.   3.  Sentencing:  previous  convictions. When sentencing a person for a violation of paragraph (b), (c), (d) or (e) of subdivision one  of  this section  pursuant  to  subparagraph (ii) of paragraph (f) of subdivision one of this section, the court shall consider any prior convictions  the person  may have for a violation of subdivision two, two-a, three, four, or four-a of section eleven hundred ninety-two of this title within  the preceding  ten  years.  When  sentencing  a  person  for  a violation of paragraph (b), (c), (d) or  (e)  of  subdivision  one  of  this  section pursuant  to  subparagraph  (iii) of paragraph (f) of subdivision one of this section, the court shall consider any prior convictions the  person may  have  for  a  violation  of subdivision two, two-a, three, four, or four-a of section eleven hundred ninety-two of  this  title  within  the preceding  ten  years.  When  sentencing  a  person  for  a violation of subparagraph (ii) of paragraph (a) of subdivision one of  this  section, the court shall consider any prior convictions the person may have for a violation  of  any  subdivision  of section eleven hundred ninety-two of this title within the preceding five years. When sentencing a person for a violation of subparagraph (iii) of paragraph (a) of subdivision one of this section, the court shall consider any prior convictions the  person may  have  for  a violation of any subdivision of section eleven hundred ninety-two of this title within the preceding ten years.   4.  Arrest  and  field  testing.  (a)  Arrest.   Notwithstanding   the provisions  of  section  140.10  of the criminal procedure law, a police officer may, without a warrant, arrest a person, in case of a  violation of  any  paragraph of subdivision one of this section, if such violation is coupled with an  accident  or  collision  in  which  such  person  is involved,  which  in  fact  had been committed, though not in the police officer's presence, when the officer has  reasonable  cause  to  believe that  the  violation  was  committed by such person. For the purposes of this subdivision, police officer shall  also  include  a  peace  officer authorized   to   enforce   this  chapter  when  the  alleged  violation constitutes a crime.  (b) Field testing. Every person operating an  electric  scooter  which has  been  involved  in  an  accident  shall, at the request of a police officer, submit to a breath  test  to  be  administered  by  the  police officer. If such test indicates that such operator has consumed alcohol, the  police  officer  may  request such operator to submit to a chemical test in the manner set forth in subdivision five of this section.   5. Chemical tests; when authorized. A police officer may  request  any person  who  operates  an electric scooter in this state to consent to a chemical test of one or more of the following: breath, blood, urine,  or saliva, for the purpose of determining the alcoholic and/or drug content of  such  person's blood, provided that such test is administered at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test  of  blood,  at  the direction  of a police officer: (a) having reasonable grounds to believe such person to have been operating in violation of paragraph  (a),  (b), (c),  (d) or (e) of subdivision one of this section and within two hours after such person has been placed under arrest for any  such  violation; or  (b)  within  two hours after a breath test, as provided in paragraph (b) of subdivision four of this section, indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member.    6. Testing procedures.  (a)  Persons  authorized  to  withdraw  blood; immunity;  testimony.  (i)  At  the  request  of  a  police officer, the following persons may withdraw blood for the purpose of determining  the alcoholic  or  drug  content  therein:  (A)  a  physician,  a registered professional  nurse, a registered physician assistant, a certified nurse practitioner, or an advanced emergency medical technician  as  certified by  the  department  of  health; or (B) under the supervision and at the direction of a physician, registered physician  assistant  or  certified nurse practitioner acting within his or her lawful scope of practice, or upon  the  express  consent of the person eighteen years of age or older from  whom  such  blood  is  to  be  withdrawn:  a  clinical  laboratory technician  or  clinical  laboratory  technologist  licensed pursuant to article one hundred sixty-five of the education law; a phlebotomist;  or a  medical  laboratory  technician or medical technologist employed by a clinical laboratory approved under title five of  article  five  of  the public  health  law.  This limitation shall not apply to the taking of a urine, saliva or breath specimen.  (ii) No person entitled to withdraw blood pursuant to subparagraph one of this paragraph or  hospital  employing  such  person,  and  no  other employer of such person shall be sued or held liable for any act done or omitted  in  the  course of withdrawing blood at the request of a police officer pursuant to this section.  (iii) Any person who may have a  cause  of  action  arising  from  the withdrawal of blood as aforesaid, for which no personal liability exists under  subparagraph  (ii)  of  this  paragraph, may maintain such action against the state if any person entitled to withdraw blood  pursuant  to this  paragraph acted at the request of a police officer employed by the state, or against the appropriate political subdivision of the state  if such  person  acted  at  the  request  of a police officer employed by a political subdivision of  the  state.  No  action  shall  be  maintained pursuant  to  this  subparagraph unless notice of claim is duly filed or served in compliance with law.  (iv)  Notwithstanding  subparagraphs  (i),  (ii)  and  (iii)  of  this paragraph  an  action  may  be  maintained  by  the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to subparagraph (i) of this paragraph or hospital employing such  person for  whose  act  or  omission the state or the political subdivision has been held liable under this paragraph to recover damages, not  exceeding the  amount awarded to the claimant, that may have been sustained by the state or the political subdivision by reason of gross negligence or  bad faith on the part of such person.  (v)  The  testimony  of any person other than a physician, entitled to withdraw blood pursuant  to  subparagraph  (i)  of  this  paragraph,  in respect  to  any  such  withdrawal  of  blood made by such person may be received in evidence with the same weight, force and effect as  if  such withdrawal of blood were made by a physician.  (vi)  The  provisions  of  subparagraphs  (ii), (iii) and (iv) of this paragraph shall also apply with regard  to  any  person  employed  by  a hospital as security personnel for any act done or omitted in the course of withdrawing blood at the request of a police officer pursuant to this section.  (b)  Right to additional test. The person tested shall be permitted to choose a physician to administer a chemical test in addition to the  one administered at the direction of the police officer.  (c)  Rules  and  regulations. The department of health shall issue and file rules and regulations approving satisfactory techniques or  methods of  conducting  chemical  analyses of a person's blood, urine, breath or saliva and to ascertain the qualifications and competence of individuals  to conduct and supervise chemical analyses of a person's  blood,  urine, breath  or saliva. If the analyses were made by an individual possessing a permit issued by the department of health, this shall  be  presumptive evidence that the examination was properly given. The provisions of this paragraph  do  not  prohibit the introduction as evidence of an analysis made by an individual other than a person possessing a permit issued  by the department of health.   7.  Chemical  test  evidence. (a) Admissibility. Upon the trial of any such action or proceeding arising out of actions alleged  to  have  been committed  by  any  person  arrested for a violation of any paragraph of subdivision one of this section, the court shall admit evidence  of  the amount  of  alcohol or drugs in the defendant's blood as shown by a test administered pursuant to the provisions  of  subdivision  five  of  this section.  (b)  Probative  value. The following effect shall be given to evidence of blood-alcohol content, as determined  by  such  tests,  of  a  person arrested for a violation of subdivision one of this section:  (i) evidence that there was .05 of one per centum or less by weight of alcohol  in  such  person's blood shall be prima facie evidence that the ability of such person to operate an electric scooter was  not  impaired by  the  consumption  of  alcohol,  and  that  such person was not in an intoxicated condition;  (ii) evidence that there was more than .05 of one per centum but  less than  .07  of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be relevant evidence, but  shall  not be  given prima facie effect, in determining whether the ability of such person to operate an electric scooter was impaired by the consumption of alcohol; and  (iii) evidence that there was .07 of one per centum or more  but  less than  .08  of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence  shall  be  given  prima  facie  effect  in determining  whether  the  ability of such person to operate an electric scooter was impaired by the consumption of alcohol.   8. Where applicable. The provisions of this section shall  apply  upon public  highways, private roads open to motor vehicle traffic, any other parking lot, and sidewalks. 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.   9. Enforcement upon  crash.  Notwithstanding  any  provision  of  this section,  no  part of this section may be enforced unless in conjunction with a crash involving an operator  of  an  electric  scooter.  For  the purposes  of  this  subdivision,  "crash"  shall  mean  colliding with a vehicle, person, building or other object.