§ 1192. Operating a motor vehicle while under the influence of alcohol\nor drugs. 1. Driving while ability impaired. No person shall operate a\nmotor vehicle while the person's ability to operate such motor vehicle\nis impaired by the consumption of alcohol.\n 2. Driving while intoxicated; per se. No person shall operate a motor\nvehicle while such person has .08 of one per centum or more by weight of\nalcohol in the person's blood as shown by chemical analysis of such\nperson's blood, breath, urine or saliva, made pursuant to the provisions\nof section eleven hundred ninety-four of this article.\n 2-a. Aggravated driving while intoxicated. (a) Per se. No person shall\noperate a motor vehicle while such person has .18 of one per centum or\nmore by weight of alcohol in such person's blood as shown by chemical\nanalysis of such person's blood, breath, urine or saliva made pursuant\nto the provisions of section eleven hundred ninety-four of this article.\n (b) With a child. No person shall operate a motor vehicle in violation\nof subdivision two, three, four or four-a of this section while a child\nwho is fifteen years of age or less is a passenger in such motor\nvehicle.\n 3. Driving while intoxicated. No person shall operate a motor vehicle\nwhile in an intoxicated condition.\n 4. Driving while ability impaired by drugs. No person shall operate a\nmotor vehicle while the person's ability to operate such a motor vehicle\nis impaired by the use of a drug as defined in this chapter.\n 4-a. Driving while ability impaired by the combined influence of drugs\nor of alcohol and any drug or drugs. No person shall operate a motor\nvehicle while the person's ability to operate such motor vehicle is\nimpaired by the combined influence of drugs or of alcohol and any drug\nor drugs.\n 5. Commercial motor vehicles: per se - level I. Notwithstanding the\nprovisions of section eleven hundred ninety-five of this article, no\nperson shall operate a commercial motor vehicle while such person has\n..04 of one per centum or more but not more than .06 of one per centum by\nweight of alcohol in the person's blood as shown by chemical analysis of\nsuch person's blood, breath, urine or saliva, made pursuant to the\nprovisions of section eleven hundred ninety-four of this article;\nprovided, however, nothing contained in this subdivision shall prohibit\nthe imposition of a charge of a violation of subdivision one of this\nsection, or of section eleven hundred ninety-two-a of this article where\na person under the age of twenty-one operates a commercial motor vehicle\nwhere a chemical analysis of such person's blood, breath, urine, or\nsaliva, made pursuant to the provisions of section eleven hundred\nninety-four of this article, indicates that such operator has .02 of one\nper centum or more but less than .04 of one per centum by weight of\nalcohol in such operator's blood.\n 6. Commercial motor vehicles; per se - level II. Notwithstanding the\nprovisions of section eleven hundred ninety-five of this article, no\nperson shall operate a commercial motor vehicle while such person has\nmore than .06 of one per centum but less than .08 of one per centum by\nweight of alcohol in the person's blood as shown by chemical analysis of\nsuch person's blood, breath, urine or saliva, made pursuant to the\nprovisions of section eleven hundred ninety-four of this article;\nprovided, however, nothing contained in this subdivision shall prohibit\nthe imposition of a charge of a violation of subdivision one of this\nsection.\n 7. Where applicable. The provisions of this section shall apply upon\npublic highways, private roads open to motor vehicle traffic and any\nother parking lot. For the purposes of this section "parking lot" shall\nmean any area or areas of private property, including a driveway, near\nor contiguous to and provided in connection with premises and used as a\nmeans of access to and egress from a public highway to such premises and\nhaving a capacity for the parking of four or more motor vehicles. The\nprovisions of this section shall not apply to any area or areas of\nprivate property comprising all or part of property on which is situated\na one or two family residence.\n 8. Effect of prior out-of-state conviction. A prior out-of-state\nconviction for operating a motor vehicle while under the influence of\nalcohol or drugs shall be deemed to be a prior conviction of a violation\nof this section for purposes of determining penalties imposed under this\nsection or for purposes of any administrative action required to be\ntaken pursuant to subdivision two of section eleven hundred ninety-three\nof this article; provided, however, that such conduct, had it occurred\nin this state, would have constituted a misdemeanor or felony violation\nof any of the provisions of this section. Provided, however, that if\nsuch conduct, had it occurred in this state, would have constituted a\nviolation of any provisions of this section which are not misdemeanor or\nfelony offenses, then such conduct shall be deemed to be a prior\nconviction of a violation of subdivision one of this section for\npurposes of determining penalties imposed under this section or for\npurposes of any administrative action required to be taken pursuant to\nsubdivision two of section eleven hundred ninety-three of this article.\n 8-a. Effect of prior finding of having consumed alcohol. A prior\nfinding that a person under the age of twenty-one has operated a motor\nvehicle after having consumed alcohol pursuant to section eleven hundred\nninety-four-a of this article shall have the same effect as a prior\nconviction of a violation of subdivision one of this section solely for\nthe purpose of determining the length of any license suspension or\nrevocation required to be imposed under any provision of this article,\nprovided that the subsequent offense is committed prior to the\nexpiration of the retention period for such prior offense or offenses\nset forth in paragraph (k) of subdivision one of section two hundred one\nof this chapter.\n 9. Conviction of a different charge. A driver may be convicted of a\nviolation of subdivision one, two or three of this section,\nnotwithstanding that the charge laid before the court alleged a\nviolation of subdivision two or three of this section, and regardless of\nwhether or not such conviction is based on a plea of guilty.\n 10. Plea bargain limitations. (a) (i) In any case wherein the charge\nlaid before the court alleges a violation of subdivision two, three,\nfour or four-a of this section, any plea of guilty thereafter entered in\nsatisfaction of such charge must include at least a plea of guilty to\nthe violation of the provisions of one of the subdivisions of this\nsection, other than subdivision five or six, and no other disposition by\nplea of guilty to any other charge in satisfaction of such charge shall\nbe authorized; provided, however, if the district attorney, upon\nreviewing the available evidence, determines that the charge of a\nviolation of this section is not warranted, such district attorney may\nconsent, and the court may allow a disposition by plea of guilty to\nanother charge in satisfaction of such charge; provided, however, in all\nsuch cases, the court shall set forth upon the record the basis for such\ndisposition.\n (ii) In any case wherein the charge laid before the court alleges a\nviolation of subdivision two, three, four or four-a of this section, no\nplea of guilty to subdivision one of this section shall be accepted by\nthe court unless such plea includes as a condition thereof the\nrequirement that the defendant attend and complete the alcohol and drug\nrehabilitation program established pursuant to section eleven hundred\nninety-six of this article, including any assessment and treatment\nrequired thereby; provided, however, that such requirement may be waived\nby the court upon application of the district attorney or the defendant\ndemonstrating that the defendant, as a condition of the plea, has been\nrequired to enter into and complete an alcohol or drug treatment program\nprescribed pursuant to an alcohol or substance abuse screening or\nassessment conducted pursuant to section eleven hundred ninety-eight-a\nof this article or for other good cause shown. The provisions of this\nsubparagraph shall apply, notwithstanding any bars to participation in\nthe alcohol and drug rehabilitation program set forth in section eleven\nhundred ninety-six of this article; provided, however, that nothing in\nthis paragraph shall authorize the issuance of a conditional license\nunless otherwise authorized by law.\n (iii) In any case wherein the charge laid before the court alleges a\nviolation of subdivision one of this section and the operator was under\nthe age of twenty-one at the time of such violation, any plea of guilty\nthereafter entered in satisfaction of such charge must include at least\na plea of guilty to the violation of such subdivision; provided,\nhowever, such charge may instead be satisfied as provided in paragraph\n(c) of this subdivision, and, provided further that, if the district\nattorney, upon reviewing the available evidence, determines that the\ncharge of a violation of subdivision one of this section is not\nwarranted, such district attorney may consent, and the court may allow a\ndisposition by plea of guilty to another charge in satisfaction of such\ncharge; provided, however, in all such cases, the court shall set forth\nupon the record the basis for such disposition.\n (b) In any case wherein the charge laid before the court alleges a\nviolation of subdivision one or six of this section while operating a\ncommercial motor vehicle, any plea of guilty thereafter entered in\nsatisfaction of such charge must include at least a plea of guilty to\nthe violation of the provisions of one of the subdivisions of this\nsection and no other disposition by plea of guilty to any other charge\nin satisfaction of such charge shall be authorized; provided, however,\nif the district attorney upon reviewing the available evidence\ndetermines that the charge of a violation of this section is not\nwarranted, he may consent, and the court may allow, a disposition by\nplea of guilty to another charge is satisfaction of such charge.\n (c) Except as provided in paragraph (b) of this subdivision, in any\ncase wherein the charge laid before the court alleges a violation of\nsubdivision one of this section by a person who was under the age of\ntwenty-one at the time of commission of the offense, the court, with the\nconsent of both parties, may allow the satisfaction of such charge by\nthe defendant's agreement to be subject to action by the commissioner\npursuant to section eleven hundred ninety-four-a of this article. In any\nsuch case, the defendant shall waive the right to a hearing under\nsection eleven hundred ninety-four-a of this article and such waiver\nshall have the same force and effect as a finding of a violation of\nsection eleven hundred ninety-two-a of this article entered after a\nhearing conducted pursuant to such section eleven hundred ninety-four-a.\nThe defendant shall execute such waiver in open court, and, if\nrepresented by counsel, in the presence of his attorney, on a form to be\nprovided by the commissioner, which shall be forwarded by the court to\nthe commissioner within ninety-six hours. To be valid, such form shall,\nat a minimum, contain clear and conspicuous language advising the\ndefendant that a duly executed waiver: (i) has the same force and effect\nas a guilty finding following a hearing pursuant to section eleven\nhundred ninety-four-a of this article; (ii) shall subject the defendant\nto the imposition of sanctions pursuant to such section eleven hundred\nninety-four-a; and (iii) may subject the defendant to increased\nsanctions upon a subsequent violation of this section or section eleven\nhundred ninety-two-a of this article. Upon receipt of a duly executed\nwaiver pursuant to this paragraph, the commissioner shall take such\nadministrative action and impose such sanctions as may be required by\nsection eleven hundred ninety-four-a of this article.\n (d) In any case wherein the charge laid before the court alleges a\nviolation of subdivision two-a of this section, any plea of guilty\nthereafter entered in satisfaction of such charge must include at least\na plea of guilty to the violation of the provisions of subdivision two,\ntwo-a or three of this section, and no other disposition by plea of\nguilty to any other charge in satisfaction of such charge shall be\nauthorized; provided, however, if the district attorney, upon reviewing\nthe available evidence, determines that the charge of a violation of\nthis section is not warranted, such district attorney may consent and\nthe court may allow a disposition by plea of guilty to another charge in\nsatisfaction of such charge, provided, however, in all such cases, the\ncourt shall set forth upon the record the basis for such disposition.\nProvided, further, however, that no such plea shall be accepted by the\ncourt unless such plea includes as a condition thereof the requirement\nthat the defendant attend and complete the alcohol and drug\nrehabilitation program established pursuant to section eleven hundred\nninety-six of this article, including any assessment and treatment\nrequired thereby; provided, however, that such requirement may be waived\nby the court upon application of the district attorney or the defendant\ndemonstrating that the defendant, as a condition of the plea, has been\nrequired to enter into and complete an alcohol or drug treatment program\nprescribed pursuant to an alcohol or substance abuse screening or\nassessment conducted pursuant to section eleven hundred ninety-eight-a\nof this article or for other good cause shown. The provisions of this\nparagraph shall apply, notwithstanding any bars to participation in the\nalcohol and drug rehabilitation program set forth in section eleven\nhundred ninety-six of this article; provided, however, that nothing in\nthis paragraph shall authorize the issuance of a conditional license\nunless otherwise authorized by law.\n 11. No person other than an operator of a commercial motor vehicle may\nbe charged with or convicted of a violation of subdivision five or six\nof this section.\n 12. Driving while intoxicated or while ability impaired by\ndrugs--serious physical injury or death or child in the vehicle. (a) In\nevery case where a person is charged with a violation of subdivision\ntwo, two-a, three, four or four-a of this section, the law enforcement\nofficer alleging such charge shall make a clear notation in the\n"Description of Violation" section of a simplified traffic information\n(i) if, arising out of the same incident, someone other than the person\ncharged was killed or suffered serious physical injury as defined in\nsection 10.00 of the penal law; such notation shall be in the form of a\n"D" if someone other than the person charged was killed and such\nnotation shall be in the form of a "S.P.I." if someone other than the\nperson charged suffered serious physical injury; and (ii) if a child\naged fifteen years or less was present in the vehicle of the person\ncharged with a violation of subdivision two, two-a, three, four or\nfour-a of this section; such notation shall be in the form of "C.I.V.".\nProvided, however, that the failure to make such notations shall in no\nway affect a charge for a violation of subdivision two, two-a, three,\nfour or four-a of this section.\n (b) Where a law enforcement officer alleges a violation of paragraph\n(b) of subdivision two-a of this section and the operator of the vehicle\nis a parent, guardian, or custodian of, or other person legally\nresponsible for, a child aged fifteen years or less who is a passenger\nin such vehicle, then the officer shall report or cause a report to be\nmade, if applicable, in accordance with title six of article six of the\nsocial services law.\n