2023 New York Laws › VAT - Vehicle and Traffic › Title 7 - Rules of the Road › Article 34 - Operation of Bicycles and Play Devices › 1242-A - Operation of a Bicycle With Electric Assist While Under the Influence of Alcohol or Drugs.

§  1242-a. Operation of a bicycle with electric assist while under the
influence of alcohol or drugs.  1.  Offenses;  criminal  penalties.  (a)
Operating  a  bicycle  with  electric  assist while ability impaired. No
person shall operate a bicycle with electric assist while  the  person's
ability  to operate such bicycle with electric assist 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 a bicycle with electric assist 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  a  bicycle  with  electric  assist  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 a bicycle with electric assist  while  intoxicated;  per
se.    No person shall operate a bicycle with electric assist 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  a  bicycle  with electric assist while intoxicated. No
person shall  operate  a  bicycle  with  electric  assist  while  in  an
intoxicated condition.
(d) Operating a bicycle with electric assist while ability impaired by
drugs.  No person shall operate a bicycle with electric assist while the
person's ability  to  operate  such  bicycle  with  electric  assist  is
impaired by the use of a drug as defined in this chapter.
(e) Operating a bicycle with electric assist while ability impaired by
the  combined influence of drugs or of alcohol and any drug or drugs. No
person shall operate a bicycle with electric assist while  the  person's
ability  to operate such bicycle with electric assist 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 a bicycle with electric assist 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  a  bicycle  with  electric  assist 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  a  bicycle  with  electric
assist 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  a  bicycle  with electric assist 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 (i)
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 a bicycle with electric assist 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  a  bicycle with electric assist 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 a bicycle with
electric assist 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 a bicycle with electric assist.
For the purposes of this subdivision, "crash" shall mean colliding  with
a vehicle, person, building or other object.