NY Veh & Traf L § 1192 (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 1192 - Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs.

§ 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.