NY Veh & Traf L § 1194-A (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-A - Driving After Having Consumed Alcohol; Under Twenty-One; Procedure.

§ 1194-a. Driving  after  having  consumed  alcohol; under twenty-one; procedure. 1. Chemical test report and hearing.  (a) Whenever a chemical test of the breath, blood, urine or saliva of an operator who  is  under the  age  of  twenty-one indicates that such person has operated a motor vehicle in violation of section  eleven  hundred  ninety-two-a  of  this article,  and  such person is not charged with violating any subdivision of section eleven hundred ninety-two arising out of the  same  incident, the  police  officer who administered the test shall forward a report of the results of such test to the department within twenty-four  hours  of the  time  when such results are available in a manner prescribed by the commissioner, and the operator  shall  be  given  a  hearing  notice  as provided  in  subdivision  one-a  of  this  section,  to appear before a hearing officer in the county where the chemical test was  administered, or  in an adjoining county under such circumstances as prescribed by the commissioner, on a date to be established in accordance with a  schedule promulgated  by the commissioner. Such hearing shall occur within thirty days of, but not less than forty-eight hours from,  the  date  that  the chemical   test   was   administered,   provided,   however,  where  the commissioner determines, based upon the availability of hearing officers and the anticipated volume of hearings at a  particular  location,  that the  scheduling  of  such  hearing  within  thirty days would impair the timely scheduling or conducting  of  other  hearings  pursuant  to  this chapter,  such  hearing  shall be scheduled at the next hearing date for such particular location. When providing the operator with such  hearing notice,  the  police officer shall also give to the operator, and shall, prior to the commencement of the hearing,  provide  to  the  department, copies  of  the  following reports, documents and materials: any written report  or  document,  or  portion  thereof,   concerning   a   physical examination,  a scientific test or experiment, including the most recent record  of  inspection,  or  calibration  or  repair  of   machines   or instruments utilized to perform such scientific tests or experiments and the  certification  certificate,  if  any,  held  by the operator of the machine or instrument, which tests or examinations were made  by  or  at the  request or direction of a public servant engaged in law enforcement activity. The report of the police officer shall 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 verification of the report.  (b)  Every  person  under the age of twenty-one who is alleged to have operated a motor vehicle after having consumed alcohol as set  forth  in section  eleven  hundred  ninety-two-a  of  this article, and who is not charged  with  violating  any  subdivision  of  section  eleven  hundred ninety-two of this article arising out of the same incident, is entitled to  a hearing before a hearing officer in accordance with the provisions of this section. Unless otherwise provided by law, the license or permit to drive or any non-resident operating privilege of  such  person  shall not  be  suspended  or  revoked  prior  to  the  scheduled date for such hearing.  (i) The hearing shall be limited to the following  issues:  (1)  did such person operate the motor vehicle; (2) was a valid request to submit to  a  chemical  test  made by the police officer in accordance with the provisions of section eleven hundred ninety-four of  this  article;  (3) was  such  person  less  than  twenty-one  years  of  age at the time of operation of the motor vehicle;  (4)  was  the  chemical  test  properly administered in accordance with the provisions of section eleven hundred ninety-four  of this article; (5) did the test find that such person had  driven after having  consumed  alcohol  as  defined  in  section  eleven hundred  ninety-two-a  of  this  article; and (6) did the police officer make a lawful stop of such person. The burden of proof shall be  on  the police  officer  to  prove  each of these issues by clear and convincing evidence.  (ii) Every person who is  entitled  to  a  hearing  pursuant  to  this subdivision  has the right to be present at the hearing; the right to be represented by attorney, or in the hearing officer's discretion, by  any other  person  the  operator  chooses;  the  right to receive and review discovery materials as provided in this subdivision; the  right  not  to testify;  the right to present evidence and witnesses in his own behalf, the right to cross examine adverse witnesses, and the  right  to  appeal from an adverse determination in accordance with article three-A of this chapter.  Any  person  representing  the  operator  must  conform to the standards of  conduct  required  of  attorneys  appearing  before  state courts,  and  failure  to conform to these standards will be grounds for declining to permit his continued appearance in the hearing.  (iii) Hearings conducted pursuant to  this  subdivision  shall  be  in accordance  with  this subdivision and with the provisions applicable to the adjudication  of  traffic  infractions  pursuant  to  the  following provisions  of  part  124  of  title  fifteen  of  the  codes, rules and regulations of the state of New York: paragraph  (b)  of  section  124.1 regarding   the  opening  statement;  paragraph  (b)  of  section  124.2 regarding  the  right  to  representation  and  to  remain  silent   and paragraphs (a) through (e) of section 124.4 regarding the conduct of the hearing,   procedure   and  recusal;  provided,  however,  that  nothing contained in this subparagraph shall be deemed  to  preclude  a  hearing officer  from changing the order of a hearing conducted pursuant to this subdivision as justice may require and for good cause shown.  (iv) The rules governing receipt of evidence in a court of  law  shall not  apply in a hearing conducted pursuant to this subdivision except as follows:  (1) on the merits of the charge, and whether or not a  party  objects, the  hearing  officer  shall exclude from consideration the following: a privileged communication; evidence which,  for  constitutional  reasons, would not be admissible in a court of law; evidence of prior misconduct, incompetency  or illness, except where such evidence would be admissible in a court of law; evidence which is irrelevant or immaterial;  (2)  no  negative  inference  shall  be  drawn  from  the   operator's exercising the right not to testify.  (v)  If,  after such hearing, the hearing officer, acting on behalf of the commissioner, finds all of the issues set forth in this  subdivision in  the  affirmative,  the  hearing  officer shall suspend or revoke the license or permit to drive or non-resident operating privilege  of  such person  in accordance with the time periods set forth in subdivision two of section eleven hundred ninety-three of this article. If,  after  such hearing,  the  hearing  officer,  acting  on behalf of the commissioner, finds any of said issues in the negative, the hearing officer must  find that the operator did not drive after having consumed alcohol.  (vi) A person who has had a license or permit to drive or non-resident operating  privilege  suspended or revoked pursuant to the provisions of this section may appeal the finding of the hearing officer in accordance with the provisions of article three-A of this chapter.  (c) Unless an adjournment of the hearing date has been  granted,  upon the   operator's   failure  to  appear  for  a  scheduled  hearing,  the commissioner  shall  suspend  the  license  or  permit   to   drive   or non-resident  operating  privilege  until  the  operator  petitions  the commissioner and a rescheduled hearing is conducted, provided,  however,  the  commissioner shall restore such person's license or permit to drive or non-resident operating  privilege  if  such  rescheduled  hearing  is adjourned  at  the request of a person other than the operator. Requests for  adjournments  shall  be  made  and  determined  in  accordance with regulations promulgated by the commissioner. If such a  request  by  the operator  for  an  adjournment is granted, the commissioner shall notify the operator of the rescheduled hearing, which shall  be  scheduled  for the next hearing date. If a second or subsequent request by the operator for an adjournment is granted, the operator's license or permit to drive or non-resident operating privilege may be suspended pending the hearing at  the  time  such  adjournment is granted; provided, however, that the records of the department or the  evidence  already  admitted  furnishes reasonable  grounds  to  believe such suspension is necessary to prevent continuing violations  or  a  substantial  traffic  safety  hazard;  and provided  further,  that  such  hearing  shall be scheduled for the next hearing date.   If a police officer does not appear for a hearing, the hearing officer shall have the authority to dismiss the charge. Any person may waive the right to a  hearing  under  this  subdivision,  in  a  form  and  manner prescribed  by the commissioner, and may enter an admission of guilt, in person or by mail, to  the  charge  of  operating  a  motor  vehicle  in violation  of  section eleven hundred ninety-two-a of this article. Such admission of guilt shall have the same force and effect as a finding  of guilt   entered   following   a   hearing  conducted  pursuant  to  this subdivision.   1-a. Hearing notice. The hearing notice issued to an operator pursuant to subdivision one of this section shall be in a form as  prescribed  by the  commissioner.  In addition to containing information concerning the time, date and location of the hearing, and such  other  information  as the  commissioner  deems  appropriate,  such  hearing  notice shall also contain the following information: the  date,  time  and  place  of  the offense  charged;  the  procedures  for  requesting  an adjournment of a scheduled hearing as provided in this section, the operator's right to a hearing conducted pursuant to this section and the right to  waive  such hearing  and  plead  guilty, either in person or by mail, to the offense charged.   2. Civil penalty. Unless otherwise provided, any person whose license, permit to drive, or any non-resident operating privilege is suspended or revoked pursuant to the provisions of this section shall also be  liable for  a  civil  penalty in the amount of one hundred twenty-five dollars, which  shall  be  distributed  in  accordance  with  the  provisions  of subdivision nine of section eighteen hundred three of this chapter.   3.  Refusal  report  and  hearing.  (a)  Any  person  under the age of twenty-one who is suspected of operating a motor  vehicle  after  having consumed  alcohol in violation of section eleven hundred ninety-two-a of this chapter, and who is not charged with violating any  subdivision  of section  eleven  hundred  ninety-two  of this article arising out of the same incident, and who has been requested to submit to a  chemical  test pursuant  to  paragraph (a) of subdivision two of section eleven hundred ninety-four of this article and after  having  been  informed  that  his license  or  permit  to  drive  and any non-resident operating privilege shall be revoked for refusal to submit to  such  chemical  test  or  any portion  thereof,  whether  or  not  there is a finding of driving after having consumed alcohol, and such  person  refuses  to  submit  to  such chemical  test or any portion thereof, shall be entitled to a hearing in accordance with a schedule promulgated by  the  commissioner,  and  such hearing shall occur within thirty days of, but not less than forty-eight hours  from,  the  date  of  such  refusal, provided, however, where the  commissioner determines, based upon the availability of hearing officers and the anticipated volume of hearings at a  particular  location,  that the  scheduling  of  such  hearing  within  thirty days would impair the timely  scheduling  or  conducting  of  other  hearings pursuant to this chapter, such hearing shall be scheduled at the next  hearing  date  for such particular location.  (b)  Unless  an adjournment of the hearing date has been granted, upon the  operator's  failure  to  appear  for  a  scheduled   hearing,   the commissioner   shall   suspend   the  license  or  permit  to  drive  or non-resident  operating  privilege  until  the  operator  petitions  the commissioner  and a rescheduled hearing is conducted, provided, however, the commissioner shall restore such person's license or permit to  drive or  non-resident  operating  privilege  if  such  rescheduled hearing is adjourned at the request of a person other than the  operator.  Requests for  adjournments  shall  be  made  and  determined  in  accordance with regulations promulgated by the commissioner. If such a  request  by  the operator  for  an  adjournment is granted, the commissioner shall notify the operator of the rescheduled hearing, which shall  be  scheduled  for the next hearing date. If a second or subsequent request by the operator for an adjournment is granted, the operator's license or permit to drive or non-resident operating privilege may be suspended pending the hearing at  the  time  such  adjournment is granted; provided, however, that the records of the department or the  evidence  already  admitted  furnishes reasonable  grounds  to  believe such suspension is necessary to prevent continuing violations  or  a  substantial  traffic  safety  hazard;  and provided  further,  that  such  hearing  shall be scheduled for the next hearing date.   If a police officer does not appear for a hearing, the hearing officer shall have the authority to dismiss the charge. Any person may waive the right to a hearing under this subdivision.  (c) The hearing on the refusal to submit to a chemical  test  pursuant to  this subdivision shall be limited to the following issues: (1) was a valid request to submit to a chemical test made by the police officer in accordance with the provisions of section eleven hundred ninety-four  of this  article; (2) 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 revocation of such person's license or permit to  drive  or  nonresident operating  privilege,  whether  or  not  such  person  is  found to have operated a motor vehicle after having consumed  alcohol;  (3)  did  such person  refuse  to  submit to such chemical test or any portion thereof; (4) did such person operate the motor vehicle; (5) was such person  less than  twenty-one  years  of  age  at  the time of operation of the motor vehicle; (6) did the police officer make a lawful stop of  such  person. If,  after  such  hearing,  the hearing officer, acting on behalf of the commissioner, finds on any one said issue in the negative,  the  hearing officer  shall  not  revoke the operator's license or permit to drive or non-resident operating privilege and  shall  immediately  terminate  any outstanding  suspension  of  the  operator's license, permit to drive or non-resident operating privilege 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 hearing 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 subdivision  two  of  section  eleven  hundred  ninety-four  of  this article.  A  person  who  has  had  a  license  or  permit  to  drive or non-resident operating privilege suspended or revoked  pursuant  to  the provisions  of  this  section  may  appeal  the  findings of the hearing  officer in accordance with the provisions of  article  three-A  of  this chapter.