2023 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.