NY Veh & Traf L § 1194 (2021)
2021 New York Laws VAT - Vehicle and Traffic Title 7 - Rules of the Road Article 31 - Alcohol and Drug-Related Offenses and Procedures Applicable Thereto 1194 - Arrest and Testing.

§ 1194. Arrest  and  testing. 1. 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 subdivision one of section eleven hundred ninety-two of this  article,  if  such  violation  is  coupled  with  an accident  or  collision  in which such person is involved, which in fact has 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.  (b) Field testing. Every person operating a motor  vehicle  which  has been involved in an accident or which is operated in violation of any of the  provisions  of  this  chapter  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 two of this section.   2. Chemical tests. (a) When authorized.  Any  person  who  operates  a motor  vehicle  in this state shall be deemed to have given 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  the  blood  provided  that  such  test  is administered by or 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:  (1)  having  reasonable  grounds  to  believe such person to have been operating in violation of any  subdivision  of  section  eleven  hundred ninety-two  of  this  article and within two hours after such person has been placed under arrest for any such violation;  or  having  reasonable grounds  to  believe  such person to have been operating in violation of section eleven hundred ninety-two-a of this article and within two hours after the stop of such person for any such violation,  (2) within two hours after a breath test, as provided in paragraph (b) of subdivision one 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;  (3)  for  the  purposes  of  this  paragraph,  "reasonable grounds" to believe that a person has been operating a motor  vehicle  after  having consumed  alcohol in violation of section eleven hundred ninety-two-a of this  article  shall  be  determined  by   viewing   the   totality   of circumstances  surrounding  the  incident  which,  when  taken together, indicate that the operator was driving in violation of such subdivision. Such circumstances may include any visible or behavioral  indication  of alcohol  consumption by the operator, the existence of an open container containing or having contained an alcoholic beverage in  or  around  the vehicle  driven  by  the operator, or any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle after having consumed alcohol at the  time  of the incident; or  (4)  notwithstanding  any  other  provision of law to the contrary, no person under the age of twenty-one shall  be  arrested  for  an  alleged violation  of  section  eleven  hundred  ninety-two-a  of  this article. However, a person under the age of twenty-one for whom a  chemical  test is  authorized pursuant to this paragraph may be temporarily detained by the police solely for the purpose of requesting  or  administering  such chemical  test  whenever  arrest  without  a warrant for a petty offense would be authorized in accordance with the provisions of section  140.10 of  the  criminal  procedure  law or paragraph (a) of subdivision one of this section.  (b) Report of refusal. (1) If: (A)  such  person  having  been  placed under  arrest;  or  (B)  after  a  breath test indicates the presence of alcohol in the person's system; or (C) with regard to a person under the age of twenty-one, there are reasonable grounds  to  believe  that  such person  has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article; and having thereafter been requested to submit to  such  chemical  test  and having  been  informed  that the person's license or permit to drive and any non-resident operating privilege shall be immediately suspended  and subsequently  revoked, or, for operators under the age of twenty-one for whom there are reasonable grounds to believe that such operator has been operating a motor vehicle after having consumed alcohol in violation  of section  eleven  hundred  ninety-two-a of this article, shall be revoked for refusal to submit to such chemical  test  or  any  portion  thereof, whether  or  not the person is found guilty of the charge for which such person is arrested or detained, refuses to submit to such chemical  test or  any  portion thereof, unless a court order has been granted pursuant to subdivision three of this section, the test shall not be given and  a written  report  of such refusal shall be immediately made by the police officer before whom such refusal was made. Such report may  be  verified by  having  the  report  sworn  to, or by affixing to such report a form notice that false statements made therein are punishable as  a  class  A misdemeanor  pursuant  to  section 210.45 of the penal law and such form notice together with the subscription of the deponent shall constitute a verification of the report.  (2) The report of  the  police  officer  shall  set  forth  reasonable grounds  to  believe  such arrested person or such detained person under the age of twenty-one had been driving in violation of  any  subdivision of  section  eleven hundred ninety-two or eleven hundred ninety-two-a of this article, that said person had refused to submit  to  such  chemical test,  and  that  no  chemical  test  was  administered  pursuant to the requirements of subdivision three of this section. The report  shall  be presented to the court upon arraignment of an arrested person, provided, however, in the case of a person under the age of twenty-one, for whom a test  was  authorized  pursuant to the provisions of subparagraph two or three of paragraph (a) of this subdivision, and who has not been  placed under  arrest for a violation of any of the provisions of section eleven hundred ninety-two of this article, such report shall  be  forwarded  to the  commissioner  within forty-eight hours in a manner to be prescribed by the commissioner, and  all  subsequent  proceedings  with  regard  to refusal  to  submit to such chemical test by such person shall be as set forth in subdivision three of section eleven  hundred  ninety-four-a  of this article.  (3) For persons placed under arrest for a violation of any subdivision of  section  eleven  hundred  ninety-two of this article, the license or permit to drive and any non-resident operating privilege shall, upon the basis of such written report, be  temporarily  suspended  by  the  court without  notice  pending  the  determination of a hearing as provided in paragraph (c) of  this  subdivision.  Copies  of  such  report  must  be transmitted  by  the  court to the commissioner and such transmittal may not be waived even with the consent of  all  the  parties.  Such  report shall  be forwarded to the commissioner within forty-eight hours of such arraignment.  (4) The court or the police officer, in the case of a person under the age of twenty-one alleged to be driving after having  consumed  alcohol, shall  provide such person with a scheduled hearing date, a waiver form, and such other information as may be required by the commissioner. If  a hearing,  as  provided  for  in  paragraph  (c)  of this subdivision, or  subdivision three  of  section  eleven  hundred  ninety-four-a  of  this article,  is  waived  by such person, the commissioner shall immediately revoke the license, permit, or non-resident operating privilege,  as  of the  date of receipt of such waiver in accordance with the provisions of paragraph (d) of this subdivision.  (c) Hearings. Any person whose license  or  permit  to  drive  or  any non-resident  driving privilege has been suspended pursuant to paragraph (b) of this subdivision is entitled to a hearing in  accordance  with  a hearing   schedule  to  be  promulgated  by  the  commissioner.  If  the department fails to provide for such hearing fifteen days after the date of the arraignment of the arrested person, the license, permit to  drive or  non-resident  operating privilege of such person shall be reinstated pending a hearing pursuant to this section. The hearing shall be limited to the following issues: (1) did  the  police  officer  have  reasonable grounds to believe that such person had been driving in violation of any subdivision  of  section  eleven hundred ninety-two of this article; (2) did the police officer make a lawful arrest of such person; (3) was such person given sufficient warning, in clear or unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person's license or operating  privilege  whether  or not  such  person is found guilty of the charge for which the arrest was made; and (4) did such person refuse to submit to such chemical test  or any portion thereof. If, after such hearing, the hearing officer, acting on  behalf  of  the commissioner, finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal. If, after such hearing, the hearing  officer, acting  on  behalf  of  the  commissioner finds all of the issues in the affirmative, such officer shall immediately revoke the license or permit to drive or any non-resident operating privilege in accordance with  the provisions  of paragraph (d) of this subdivision. A person who has had a license or permit to drive or non-resident operating privilege suspended or revoked pursuant to this subdivision may appeal the findings  of  the hearing  officer in accordance with the provisions of article three-A of this chapter. Any person may waive the right to  a  hearing  under  this section.  Failure  by  such  person  to appear for the scheduled hearing shall constitute a waiver of such hearing, provided, however, that  such person  may  petition  the commissioner for a new hearing which shall be held as soon as practicable.  (d) Sanctions. (1) Revocations. a. Any license which has been  revoked pursuant  to paragraph (c) of this subdivision shall not be restored for at least one year after such revocation, nor thereafter, except  in  the discretion  of  the  commissioner.  However,  no  such  license shall be restored for  at  least  eighteen  months  after  such  revocation,  nor thereafter  except  in  the  discretion of the commissioner, in any case where the person has had a prior revocation resulting  from  refusal  to submit  to  a  chemical test, or has been convicted of or found to be in violation of any subdivision of section  eleven  hundred  ninety-two  or section  eleven  hundred ninety-two-a of this article not arising out of the same incident, within the five years immediately preceding the  date of  such  revocation;  provided,  however, a prior finding that a person under the age of twenty-one has refused to submit  to  a  chemical  test pursuant to subdivision three of section eleven hundred ninety-four-a of this  article shall have the same effect as a prior finding of a refusal pursuant to this subdivision 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  or  refusal is committed or occurred prior to the expiration of  the retention period for such prior refusal as set  forth  in  paragraph (k) of subdivision one of section two hundred one of this chapter.   b.  Any  license  which  has been revoked pursuant to paragraph (c) of this subdivision or pursuant to  subdivision  three  of  section  eleven hundred  ninety-four-a  of  this article, where the holder was under the age of twenty-one years at the  time  of  such  refusal,  shall  not  be restored for at least one year, nor thereafter, except in the discretion of the commissioner. Where such person under the age of twenty-one years has  a  prior  finding,  conviction  or  youthful  offender adjudication resulting from a violation  of  section  eleven  hundred  ninety-two  or section  eleven  hundred  ninety-two-a of this article, not arising from the same incident, such license shall not be restored for at  least  one year or until such person reaches the age of twenty-one years, whichever is  the greater period of time, nor thereafter, except in the discretion of the commissioner.   c. Any commercial driver's license which has been revoked pursuant  to paragraph  (c)  of  this  subdivision based upon a finding of refusal to submit to a chemical test, where such finding occurs within  or  outside of  this state, shall not be restored for at least eighteen months after such revocation,  nor  thereafter,  except  in  the  discretion  of  the commissioner,  but  shall not be restored for at least three years after such revocation,  nor  thereafter,  except  in  the  discretion  of  the commissioner,  if  the holder of such license was operating a commercial motor vehicle transporting hazardous  materials  at  the  time  of  such refusal.  However,  such  person  shall be permanently disqualified from operating a commercial motor vehicle in any case where the holder has  a prior  finding  of refusal to submit to a chemical test pursuant to this section or has 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. Provided that the commissioner may waive such permanent revocation after a period of ten years has  expired from such revocation provided:  (i) that during such ten year period such person has not been found to have  refused  a chemical test pursuant to this section and has not been convicted of any one of the following offenses: any violation of section eleven hundred ninety-two of  this  article;  refusal  to  submit  to  a chemical test pursuant to this section; 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 or a certificate of good conduct pursuant to article twenty-three of the correction  law  by the court in which such person was last penalized.   d.  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.  (2) Civil penalties. Except as otherwise provided,  any  person  whose license,  permit  to  drive,  or any non-resident operating privilege is revoked pursuant to the provisions of this section shall also be  liable  for a civil penalty in the amount of five hundred dollars except that if such  revocation  is  a second or subsequent revocation pursuant to this section issued within a five  year  period,  or  such  person  has  been convicted  of  a  violation of any subdivision of section eleven hundred ninety-two of this article within the past five years not arising out of the same incident, the civil penalty shall be in  the  amount  of  seven hundred  fifty  dollars. Any person whose license is revoked pursuant to the provisions of this section based upon a finding of refusal to submit to a chemical test while operating a commercial motor vehicle shall also be liable for a civil penalty of five hundred fifty dollars except  that if such person has previously been found to have refused a chemical test pursuant  to  this section while operating a commercial motor vehicle or has a prior conviction of any of the following offenses while  operating a  commercial  motor  vehicle:  any  violation of section eleven hundred ninety-two of this article; any violation of subdivision two of  section six  hundred  of  this  chapter; or has a prior conviction of any felony involving the use of a commercial motor vehicle  pursuant  to  paragraph (a)  of  subdivision  one of section five hundred ten-a of this chapter, then the civil penalty shall be seven  hundred  fifty  dollars.  No  new driver's  license  or  permit shall be issued, or non-resident operating privilege restored to such person unless such penalty has been paid. All penalties collected by the department pursuant to the provisions of this section shall be the property of the state and shall be  paid  into  the general fund of the state treasury.  (3)  Effect of rehabilitation program. No period of revocation arising out of this section 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 article.  (e) Regulations. The commissioner  shall  promulgate  such  rules  and regulations  as  may  be  necessary  to  effectuate  the  provisions  of subdivisions one and two of this section.  (f) Evidence. Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible  in  any  trial,  proceeding  or hearing  based  upon  a  violation  of  the provisions of section eleven hundred ninety-two of this article but only  upon  a  showing  that  the person  was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and  that  the  person  persisted  in  the refusal.  (g)  Results.  Upon  the  request  of  the  person who was tested, the results of such test shall be made available to such person.   3. Compulsory  chemical  tests.  (a)  Court  ordered  chemical  tests. Notwithstanding  the  provisions  of subdivision two of this section, no person who operates a motor vehicle in this state may refuse  to  submit 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 the blood when a court order for such chemical test has  been issued in accordance with the provisions of this subdivision.  (b)  When  authorized.  Upon  refusal  by  any  person  to submit to a chemical test or any portion thereof as described above, the test  shall not  be given unless a police officer or a district attorney, as defined in subdivision thirty-two of section 1.20 of the criminal procedure law, requests and obtains a court order to compel a person  to  submit  to  a chemical test to determine the alcoholic or drug content of the person's blood upon a finding of reasonable cause to believe that:  (1)  such person was the operator of a motor vehicle and in the course of such operation a  person  other  than  the  operator  was  killed  or  suffered  serious  physical  injury  as  defined in section 10.00 of the penal law; and  (2)  a.  either  such  person operated the vehicle in violation of any subdivision of section eleven hundred ninety-two of this article, or   b. a breath test administered by a police officer in  accordance  with paragraph  (b) of subdivision one of this section indicates that alcohol has been consumed by such person; and  (3) such person has been placed under lawful arrest; and  (4) such person has refused to  submit  to  a  chemical  test  or  any portion   thereof,  requested  in  accordance  with  the  provisions  of paragraph (a) of subdivision two of this section or is  unable  to  give consent to such a test.  (c)  Reasonable cause; definition. For the purpose of this subdivision "reasonable cause" shall  be  determined  by  viewing  the  totality  of circumstances  surrounding  the  incident  which,  when  taken together, indicate that the operator was driving in violation  of  section  eleven hundred  ninety-two of this article. Such circumstances may include, but are not limited to: evidence that the operator  was  operating  a  motor vehicle  in  violation  of  any  provision  of this article or any other moving violation at the time of the incident; any visible indication  of alcohol or drug consumption or impairment by the operator; the existence of  an  open container containing an alcoholic beverage in or around the vehicle driven by the  operator;  any  other  evidence  surrounding  the circumstances of the incident which indicates that the operator has been operating  a  motor vehicle while impaired by the consumption of alcohol or drugs or intoxicated at the time of the incident.  (d) Court order; procedure. (1) An application for a  court  order  to compel submission to a chemical test or any portion thereof, may be made to any supreme court justice, county court judge or district court judge in  the  judicial  district  in  which  the incident occurred, or if the incident occurred in the city of  New  York  before  any  supreme  court justice  or  judge  of  the criminal court of the city of New York. Such application may be communicated by telephone, radio or  other  means  of electronic communication, or in person.  (2)  The  applicant  must provide identification by name and title and must state the purpose of the communication. Upon being advised that  an application for a court order to compel submission to a chemical test is being made, the court shall place under oath the applicant and any other person  providing  information in support of the application as provided in subparagraph three of this paragraph. After being sworn the applicant must state that the person from whom the chemical test was requested was the operator of a motor vehicle and in the course of  such  operation  a person,  other  than  the operator, has been killed or seriously injured and, based upon the totality of circumstances, there is reasonable cause to believe that such person was operating a motor vehicle  in  violation of  any subdivision of section eleven hundred ninety-two of this article and, after being placed under  lawful  arrest  such  person  refused  to submit to a chemical test or any portion thereof, in accordance with the provisions  of  this section or is unable to give consent to such a test or any portion thereof. The applicant must make specific allegations  of fact  to  support  such statement. Any other person properly identified, may present sworn allegations of fact  in  support  of  the  applicant's statement.  (3)  Upon  being advised that an oral application for a court order to compel a person to submit to a chemical test is being made, a  judge  or justice  shall  place  under  oath  the  applicant  and any other person providing information in support of the application. Such oath or  oaths and all of the remaining communication must be recorded, either by means  of  a  voice  recording  device  or  verbatim  stenographic  or verbatim longhand notes. If a voice recording device is used  or  a  stenographic record  made, the judge must have the record transcribed, certify to the accuracy   of  the  transcription  and  file  the  original  record  and transcription with the court within seventy-two hours of the issuance of the court order. If the  longhand  notes  are  taken,  the  judge  shall subscribe  a copy and file it with the court within twenty-four hours of the issuance of the order.  (4) If the court is satisfied that the requirements for  the  issuance of  a  court  order  pursuant to the provisions of paragraph (b) of this subdivision have been met, it may grant the  application  and  issue  an order  requiring  the  accused to submit to a chemical test to determine the alcoholic  and/or  drug  content  of  his  blood  and  ordering  the withdrawal  of  a  blood  sample  in  accordance  with the provisions of paragraph (a) of subdivision four of  this  section.  When  a  judge  or justice  determines to issue an order to compel submission to a chemical test based on an oral application, the applicant therefor shall  prepare the  order  in accordance with the instructions of the judge or justice. In all cases the order shall include the name of the  issuing  judge  or justice, the name of the applicant, and the date and time it was issued. It must be signed by the judge or justice if issued in person, or by the applicant if issued orally.  (5) Any false statement by an applicant or any other person in support of  an  application  for  a court order shall subject such person to the offenses for perjury set forth in article two hundred ten of  the  penal law.  (6)  The  chief administrator of the courts shall establish a schedule to provide that a sufficient  number  of  judges  or  justices  will  be available  in each judicial district to hear oral applications for court orders as permitted by this section.  (e) Administration  of  compulsory  chemical  test.  An  order  issued pursuant  to  the  provisions  of  this subdivision shall require that a chemical test to determine the alcoholic  and/or  drug  content  of  the operator's blood must be administered. The provisions of paragraphs (a), (b)  and  (c) of subdivision four of this section shall be applicable to any chemical test administered pursuant to this section.   4. Testing procedures.  (a)  Persons  authorized  to  withdraw  blood; immunity;  testimony.  (1)  At  the  request  of  a  police officer, the following persons may withdraw blood for the purpose of determining  the alcoholic  or  drug  content  therein:  (i)  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 (ii) 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.  (2)  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.  (3) 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  two  of  this  paragraph,  may maintain such action against the state if any person entitled to withdraw blood  pursuant  to paragraph  (a)  hereof 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.  (4) Notwithstanding the foregoing  provisions  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 one 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.  (5) The testimony of any person other than a  physician,  entitled  to withdraw  blood  pursuant  to  subparagraph  one  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.  (6) The provisions of  subparagraphs  two,  three  and  four  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  a court order in accordance with subdivision three of 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.