§ 1194 — Arrest and testing

New York § 1194

• Jurisdiction: New York
• Law VAT: Vehicle & Traffic
• Title 7: Rules of the Road
• Art. 31: Alcohol and Drug-related Offenses and Procedures Applicable Thereto

Text

§ 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest.\nNotwithstanding the provisions of section 140.10 of the criminal\nprocedure law, a police officer may, without a warrant, arrest a person,\nin case of a violation of subdivision one of section eleven hundred\nninety-two of this article, if such violation is coupled with an\naccident or collision in which such person is involved, which in fact\nhas been committed, though not in the police officer's presence, when\nthe officer has reasonable cause to believe that the violation was\ncommitted by such person.\n (b) Field testing. Every person operating a motor vehicle which has\nbeen involved in an accident or which is operated in violation of any of\nthe provisions of this chapter shall, at the request of a police\nofficer, submit to a breath test to be administered by the police\nofficer. If such test indicates that such operator has consumed alcohol,\nthe police officer may request such operator to submit to a chemical\ntest in the manner set forth in subdivision two of this section.\n 2. Chemical tests. (a) When authorized. Any person who operates a\nmotor vehicle in this state shall be deemed to have given consent to a\nchemical test of one or more of the following: breath, blood, urine, or\nsaliva, for the purpose of determining the alcoholic and/or drug content\nof the blood provided that such test is administered by or at the\ndirection of a police officer with respect to a chemical test of breath,\nurine or saliva or, with respect to a chemical test of blood, at the\ndirection of a police officer:\n (1) having reasonable grounds to believe such person to have been\noperating in violation of any subdivision of section eleven hundred\nninety-two of this article and within two hours after such person has\nbeen placed under arrest for any such violation; or having reasonable\ngrounds to believe such person to have been operating in violation of\nsection eleven hundred ninety-two-a of this article and within two hours\nafter the stop of such person for any such violation,\n (2) within two hours after a breath test, as provided in paragraph (b)\nof subdivision one of this section, indicates that alcohol has been\nconsumed by such person and in accordance with the rules and regulations\nestablished by the police force of which the officer is a member;\n (3) for the purposes of this paragraph, "reasonable grounds" to\nbelieve that a person has been operating a motor vehicle after having\nconsumed alcohol in violation of section eleven hundred ninety-two-a of\nthis article shall be determined by viewing the totality of\ncircumstances surrounding the incident which, when taken together,\nindicate that the operator was driving in violation of such subdivision.\nSuch circumstances may include any visible or behavioral indication of\nalcohol consumption by the operator, the existence of an open container\ncontaining or having contained an alcoholic beverage in or around the\nvehicle driven by the operator, or any other evidence surrounding the\ncircumstances of the incident which indicates that the operator has been\noperating a motor vehicle after having consumed alcohol at the time of\nthe incident; or\n (4) notwithstanding any other provision of law to the contrary, no\nperson under the age of twenty-one shall be arrested for an alleged\nviolation of section eleven hundred ninety-two-a of this article.\nHowever, a person under the age of twenty-one for whom a chemical test\nis authorized pursuant to this paragraph may be temporarily detained by\nthe police solely for the purpose of requesting or administering such\nchemical test whenever arrest without a warrant for a petty offense\nwould be authorized in accordance with the provisions of section 140.10\nof the criminal procedure law or paragraph (a) of subdivision one of\nthis section.\n (b) Report of refusal. (1) If: (A) such person having been placed\nunder arrest; or (B) after a breath test indicates the presence of\nalcohol in the person's system; or (C) with regard to a person under the\nage of twenty-one, there are reasonable grounds to believe that such\nperson has been operating a motor vehicle after having consumed alcohol\nin violation of section eleven hundred ninety-two-a of this article; and\nhaving thereafter been requested to submit to such chemical test and\nhaving been informed that the person's license or permit to drive and\nany non-resident operating privilege shall be immediately suspended and\nsubsequently revoked, or, for operators under the age of twenty-one for\nwhom there are reasonable grounds to believe that such operator has been\noperating a motor vehicle after having consumed alcohol in violation of\nsection eleven hundred ninety-two-a of this article, shall be revoked\nfor refusal to submit to such chemical test or any portion thereof,\nwhether or not the person is found guilty of the charge for which such\nperson is arrested or detained, refuses to submit to such chemical test\nor any portion thereof, unless a court order has been granted pursuant\nto subdivision three of this section, the test shall not be given and a\nwritten report of such refusal shall be immediately made by the police\nofficer before whom such refusal was made. Such report may be verified\nby having the report sworn to, or by affixing to such report a form\nnotice that false statements made therein are punishable as a class A\nmisdemeanor pursuant to section 210.45 of the penal law and such form\nnotice together with the subscription of the deponent shall constitute a\nverification of the report.\n (2) The report of the police officer shall set forth reasonable\ngrounds to believe such arrested person or such detained person under\nthe age of twenty-one had been driving in violation of any subdivision\nof section eleven hundred ninety-two or eleven hundred ninety-two-a of\nthis article, that said person had refused to submit to such chemical\ntest, and that no chemical test was administered pursuant to the\nrequirements of subdivision three of this section. The report shall be\npresented to the court upon arraignment of an arrested person, provided,\nhowever, in the case of a person under the age of twenty-one, for whom a\ntest was authorized pursuant to the provisions of subparagraph two or\nthree of paragraph (a) of this subdivision, and who has not been placed\nunder arrest for a violation of any of the provisions of section eleven\nhundred ninety-two of this article, such report shall be forwarded to\nthe commissioner within forty-eight hours in a manner to be prescribed\nby the commissioner, and all subsequent proceedings with regard to\nrefusal to submit to such chemical test by such person shall be as set\nforth in subdivision three of section eleven hundred ninety-four-a of\nthis article.\n (3) For persons placed under arrest for a violation of any subdivision\nof section eleven hundred ninety-two of this article, the license or\npermit to drive and any non-resident operating privilege shall, upon the\nbasis of such written report, be temporarily suspended by the court\nwithout notice pending the determination of a hearing as provided in\nparagraph (c) of this subdivision. Copies of such report must be\ntransmitted by the court to the commissioner and such transmittal may\nnot be waived even with the consent of all the parties. Such report\nshall be forwarded to the commissioner within forty-eight hours of such\narraignment.\n (4) The court or the police officer, in the case of a person under the\nage of twenty-one alleged to be driving after having consumed alcohol,\nshall provide such person with a scheduled hearing date, a waiver form,\nand such other information as may be required by the commissioner. If a\nhearing, as provided for in paragraph (c) of this subdivision, or\nsubdivision three of section eleven hundred ninety-four-a of this\narticle, is waived by such person, the commissioner shall immediately\nrevoke the license, permit, or non-resident operating privilege, as of\nthe date of receipt of such waiver in accordance with the provisions of\nparagraph (d) of this subdivision.\n (c) Hearings. Any person whose license or permit to drive or any\nnon-resident driving privilege has been suspended pursuant to paragraph\n(b) of this subdivision is entitled to a hearing in accordance with a\nhearing schedule to be promulgated by the commissioner. If the\ndepartment fails to provide for such hearing fifteen days after the date\nof the arraignment of the arrested person, the license, permit to drive\nor non-resident operating privilege of such person shall be reinstated\npending a hearing pursuant to this section. The hearing shall be limited\nto the following issues: (1) did the police officer have reasonable\ngrounds to believe that such person had been driving in violation of any\nsubdivision of section eleven hundred ninety-two of this article; (2)\ndid the police officer make a lawful arrest of such person; (3) was such\nperson given sufficient warning, in clear or unequivocal language, prior\nto such refusal that such refusal to submit to such chemical test or any\nportion thereof, would result in the immediate suspension and subsequent\nrevocation of such person's license or operating privilege whether or\nnot such person is found guilty of the charge for which the arrest was\nmade; and (4) did such person refuse to submit to such chemical test or\nany portion thereof. If, after such hearing, the hearing officer, acting\non behalf of the commissioner, finds on any one of said issues in the\nnegative, the hearing officer shall immediately terminate any suspension\narising from such refusal. If, after such hearing, the hearing officer,\nacting on behalf of the commissioner finds all of the issues in the\naffirmative, such officer shall immediately revoke the license or permit\nto drive or any non-resident operating privilege in accordance with the\nprovisions of paragraph (d) of this subdivision. A person who has had a\nlicense or permit to drive or non-resident operating privilege suspended\nor revoked pursuant to this subdivision may appeal the findings of the\nhearing officer in accordance with the provisions of article three-A of\nthis chapter. Any person may waive the right to a hearing under this\nsection. Failure by such person to appear for the scheduled hearing\nshall constitute a waiver of such hearing, provided, however, that such\nperson may petition the commissioner for a new hearing which shall be\nheld as soon as practicable.\n (d) Sanctions. (1) Revocations. a. Any license which has been revoked\npursuant to paragraph (c) of this subdivision shall not be restored for\nat least one year after such revocation, nor thereafter, except in the\ndiscretion of the commissioner. However, no such license shall be\nrestored for at least eighteen months after such revocation, nor\nthereafter except in the discretion of the commissioner, in any case\nwhere the person has had a prior revocation resulting from refusal to\nsubmit to a chemical test, or has been convicted of or found to be in\nviolation of any subdivision of section eleven hundred ninety-two or\nsection eleven hundred ninety-two-a of this article not arising out of\nthe same incident, within the five years immediately preceding the date\nof such revocation; provided, however, a prior finding that a person\nunder the age of twenty-one has refused to submit to a chemical test\npursuant to subdivision three of section eleven hundred ninety-four-a of\nthis article shall have the same effect as a prior finding of a refusal\npursuant to this subdivision solely for the purpose of determining the\nlength of any license suspension or revocation required to be imposed\nunder any provision of this article, provided that the subsequent\noffense or refusal is committed or occurred prior to the expiration of\nthe retention period for such prior refusal as set forth in paragraph\n(k) of subdivision one of section two hundred one of this chapter.\n b. Any license which has been revoked pursuant to paragraph (c) of\nthis subdivision or pursuant to subdivision three of section eleven\nhundred ninety-four-a of this article, where the holder was under the\nage of twenty-one years at the time of such refusal, shall not be\nrestored for at least one year, nor thereafter, except in the discretion\nof the commissioner. Where such person under the age of twenty-one years\nhas a prior finding, conviction or youthful offender adjudication\nresulting from a violation of section eleven hundred ninety-two or\nsection eleven hundred ninety-two-a of this article, not arising from\nthe same incident, such license shall not be restored for at least one\nyear or until such person reaches the age of twenty-one years, whichever\nis the greater period of time, nor thereafter, except in the discretion\nof the commissioner.\n c. Any commercial driver's license which has been revoked pursuant to\nparagraph (c) of this subdivision based upon a finding of refusal to\nsubmit to a chemical test, where such finding occurs within or outside\nof this state, shall not be restored for at least eighteen months after\nsuch revocation, nor thereafter, except in the discretion of the\ncommissioner, but shall not be restored for at least three years after\nsuch revocation, nor thereafter, except in the discretion of the\ncommissioner, if the holder of such license was operating a commercial\nmotor vehicle transporting hazardous materials at the time of such\nrefusal. However, such person shall be permanently disqualified from\noperating a commercial motor vehicle in any case where the holder has a\nprior finding of refusal to submit to a chemical test pursuant to this\nsection or has a prior conviction of any of the following offenses: any\nviolation of section eleven hundred ninety-two of this article; any\nviolation of subdivision one or two of section six hundred of this\nchapter; or has a prior conviction of any felony involving the use of a\nmotor vehicle pursuant to paragraph (a) of subdivision one of section\nfive hundred ten-a of this chapter. Provided that the commissioner may\nwaive such permanent revocation after a period of ten years has expired\nfrom such revocation provided:\n (i) that during such ten year period such person has not been found to\nhave refused a chemical test pursuant to this section and has not been\nconvicted of any one of the following offenses: any violation of section\neleven hundred ninety-two of this article; refusal to submit to a\nchemical test pursuant to this section; any violation of subdivision one\nor two of section six hundred of this chapter; or has a prior conviction\nof any felony involving the use of a motor vehicle pursuant to paragraph\n(a) of subdivision one of section five hundred ten-a of this chapter;\n (ii) that such person provides acceptable documentation to the\ncommissioner that such person is not in need of alcohol or drug\ntreatment or has satisfactorily completed a prescribed course of such\ntreatment; and\n (iii) after such documentation is accepted, that such person is\ngranted a certificate of relief from disabilities or a certificate of\ngood conduct pursuant to article twenty-three of the correction law by\nthe court in which such person was last penalized.\n d. Upon a third finding of refusal and/or conviction of any of the\noffenses which require a permanent commercial driver's license\nrevocation, such permanent revocation may not be waived by the\ncommissioner under any circumstances.\n (2) Civil penalties. Except as otherwise provided, any person whose\nlicense, permit to drive, or any non-resident operating privilege is\nrevoked pursuant to the provisions of this section shall also be liable\nfor a civil penalty in the amount of five hundred dollars except that if\nsuch revocation is a second or subsequent revocation pursuant to this\nsection issued within a five year period, or such person has been\nconvicted of a violation of any subdivision of section eleven hundred\nninety-two of this article within the past five years not arising out of\nthe same incident, the civil penalty shall be in the amount of seven\nhundred fifty dollars. Any person whose license is revoked pursuant to\nthe provisions of this section based upon a finding of refusal to submit\nto a chemical test while operating a commercial motor vehicle shall also\nbe liable for a civil penalty of five hundred fifty dollars except that\nif such person has previously been found to have refused a chemical test\npursuant to this section while operating a commercial motor vehicle or\nhas a prior conviction of any of the following offenses while operating\na commercial motor vehicle: any violation of section eleven hundred\nninety-two of this article; any violation of subdivision two of section\nsix hundred of this chapter; or has a prior conviction of any felony\ninvolving the use of a commercial motor vehicle pursuant to paragraph\n(a) of subdivision one of section five hundred ten-a of this chapter,\nthen the civil penalty shall be seven hundred fifty dollars. No new\ndriver's license or permit shall be issued, or non-resident operating\nprivilege restored to such person unless such penalty has been paid. All\npenalties collected by the department pursuant to the provisions of this\nsection shall be the property of the state and shall be paid into the\ngeneral fund of the state treasury.\n (3) Effect of rehabilitation program. No period of revocation arising\nout of this section may be set aside by the commissioner for the reason\nthat such person was a participant in the alcohol and drug\nrehabilitation program set forth in section eleven hundred ninety-six of\nthis article.\n (e) Regulations. The commissioner shall promulgate such rules and\nregulations as may be necessary to effectuate the provisions of\nsubdivisions one and two of this section.\n (f) Evidence. Evidence of a refusal to submit to such chemical test or\nany portion thereof shall be admissible in any trial, proceeding or\nhearing based upon a violation of the provisions of section eleven\nhundred ninety-two of this article but only upon a showing that the\nperson was given sufficient warning, in clear and unequivocal language,\nof the effect of such refusal and that the person persisted in the\nrefusal.\n (g) Results. Upon the request of the person who was tested, the\nresults of such test shall be made available to such person.\n 3. Compulsory chemical tests. (a) Court ordered chemical tests.\nNotwithstanding the provisions of subdivision two of this section, no\nperson who operates a motor vehicle in this state may refuse to submit\nto a chemical test of one or more of the following: breath, blood, urine\nor saliva, for the purpose of determining the alcoholic and/or drug\ncontent of the blood when a court order for such chemical test has been\nissued in accordance with the provisions of this subdivision.\n (b) When authorized. Upon refusal by any person to submit to a\nchemical test or any portion thereof as described above, the test shall\nnot be given unless a police officer or a district attorney, as defined\nin subdivision thirty-two of section 1.20 of the criminal procedure law,\nrequests and obtains a court order to compel a person to submit to a\nchemical test to determine the alcoholic or drug content of the person's\nblood upon a finding of reasonable cause to believe that:\n (1) such person was the operator of a motor vehicle and in the course\nof such operation a person other than the operator was killed or\nsuffered serious physical injury as defined in section 10.00 of the\npenal law; and\n (2) a. either such person operated the vehicle in violation of any\nsubdivision of section eleven hundred ninety-two of this article, or\n b. a breath test administered by a police officer in accordance with\nparagraph (b) of subdivision one of this section indicates that alcohol\nhas been consumed by such person; and\n (3) such person has been placed under lawful arrest; and\n (4) such person has refused to submit to a chemical test or any\nportion thereof, requested in accordance with the provisions of\nparagraph (a) of subdivision two of this section or is unable to give\nconsent to such a test.\n (c) Reasonable cause; definition. For the purpose of this subdivision\n"reasonable cause" shall be determined by viewing the totality of\ncircumstances surrounding the incident which, when taken together,\nindicate that the operator was driving in violation of section eleven\nhundred ninety-two of this article. Such circumstances may include, but\nare not limited to: evidence that the operator was operating a motor\nvehicle in violation of any provision of this article or any other\nmoving violation at the time of the incident; any visible indication of\nalcohol or drug consumption or impairment by the operator; the existence\nof an open container containing an alcoholic beverage in or around the\nvehicle driven by the operator; any other evidence surrounding the\ncircumstances of the incident which indicates that the operator has been\noperating a motor vehicle while impaired by the consumption of alcohol\nor drugs or intoxicated at the time of the incident.\n (d) Court order; procedure. (1) An application for a court order to\ncompel submission to a chemical test or any portion thereof, may be made\nto any supreme court justice, county court judge or district court judge\nin the judicial district in which the incident occurred, or if the\nincident occurred in the city of New York before any supreme court\njustice or judge of the criminal court of the city of New York. Such\napplication may be communicated by telephone, radio or other means of\nelectronic communication, or in person.\n (2) The applicant must provide identification by name and title and\nmust state the purpose of the communication. Upon being advised that an\napplication for a court order to compel submission to a chemical test is\nbeing made, the court shall place under oath the applicant and any other\nperson providing information in support of the application as provided\nin subparagraph three of this paragraph. After being sworn the applicant\nmust state that the person from whom the chemical test was requested was\nthe operator of a motor vehicle and in the course of such operation a\nperson, other than the operator, has been killed or seriously injured\nand, based upon the totality of circumstances, there is reasonable cause\nto believe that such person was operating a motor vehicle in violation\nof any subdivision of section eleven hundred ninety-two of this article\nand, after being placed under lawful arrest such person refused to\nsubmit to a chemical test or any portion thereof, in accordance with the\nprovisions of this section or is unable to give consent to such a test\nor any portion thereof. The applicant must make specific allegations of\nfact to support such statement. Any other person properly identified,\nmay present sworn allegations of fact in support of the applicant's\nstatement.\n (3) Upon being advised that an oral application for a court order to\ncompel a person to submit to a chemical test is being made, a judge or\njustice shall place under oath the applicant and any other person\nproviding information in support of the application. Such oath or oaths\nand all of the remaining communication must be recorded, either by means\nof a voice recording device or verbatim stenographic or verbatim\nlonghand notes. If a voice recording device is used or a stenographic\nrecord made, the judge must have the record transcribed, certify to the\naccuracy of the transcription and file the original record and\ntranscription with the court within seventy-two hours of the issuance of\nthe court order. If the longhand notes are taken, the judge shall\nsubscribe a copy and file it with the court within twenty-four hours of\nthe issuance of the order.\n (4) If the court is satisfied that the requirements for the issuance\nof a court order pursuant to the provisions of paragraph (b) of this\nsubdivision have been met, it may grant the application and issue an\norder requiring the accused to submit to a chemical test to determine\nthe alcoholic and/or drug content of his blood and ordering the\nwithdrawal of a blood sample in accordance with the provisions of\nparagraph (a) of subdivision four of this section. When a judge or\njustice determines to issue an order to compel submission to a chemical\ntest based on an oral application, the applicant therefor shall prepare\nthe order in accordance with the instructions of the judge or justice.\nIn all cases the order shall include the name of the issuing judge or\njustice, the name of the applicant, and the date and time it was issued.\nIt must be signed by the judge or justice if issued in person, or by the\napplicant if issued orally.\n (5) Any false statement by an applicant or any other person in support\nof an application for a court order shall subject such person to the\noffenses for perjury set forth in article two hundred ten of the penal\nlaw.\n (6) The chief administrator of the courts shall establish a schedule\nto provide that a sufficient number of judges or justices will be\navailable in each judicial district to hear oral applications for court\norders as permitted by this section.\n (e) Administration of compulsory chemical test. An order issued\npursuant to the provisions of this subdivision shall require that a\nchemical test to determine the alcoholic and/or drug content of the\noperator's blood must be administered. The provisions of paragraphs (a),\n(b) and (c) of subdivision four of this section shall be applicable to\nany chemical test administered pursuant to this section.\n 4. Testing procedures. (a) Persons authorized to withdraw blood;\nimmunity; testimony. (1) At the request of a police officer, the\nfollowing persons may withdraw blood for the purpose of determining the\nalcoholic or drug content therein: (i) a physician, a registered\nprofessional nurse, a registered physician assistant, a certified nurse\npractitioner, or an advanced emergency medical technician as certified\nby the department of health; or (ii) under the supervision and at the\ndirection of a physician, registered physician assistant or certified\nnurse practitioner acting within his or her lawful scope of practice, or\nupon the express consent of the person eighteen years of age or older\nfrom whom such blood is to be withdrawn: a clinical laboratory\ntechnician or clinical laboratory technologist licensed pursuant to\narticle one hundred sixty-five of the education law; a phlebotomist; or\na medical laboratory technician or medical technologist employed by a\nclinical laboratory approved under title five of article five of the\npublic health law. This limitation shall not apply to the taking of a\nurine, saliva or breath specimen.\n (2) No person entitled to withdraw blood pursuant to subparagraph one\nof this paragraph or hospital employing such person, and no other\nemployer of such person shall be sued or held liable for any act done or\nomitted in the course of withdrawing blood at the request of a police\nofficer pursuant to this section.\n (3) Any person who may have a cause of action arising from the\nwithdrawal of blood as aforesaid, for which no personal liability exists\nunder subparagraph two of this paragraph, may maintain such action\nagainst the state if any person entitled to withdraw blood pursuant to\nparagraph (a) hereof acted at the request of a police officer employed\nby the state, or against the appropriate political subdivision of the\nstate if such person acted at the request of a police officer employed\nby a political subdivision of the state. No action shall be maintained\npursuant to this subparagraph unless notice of claim is duly filed or\nserved in compliance with law.\n (4) Notwithstanding the foregoing provisions of this paragraph an\naction may be maintained by the state or a political subdivision thereof\nagainst a person entitled to withdraw blood pursuant to subparagraph one\nof this paragraph or hospital employing such person for whose act or\nomission the state or the political subdivision has been held liable\nunder this paragraph to recover damages, not exceeding the amount\nawarded to the claimant, that may have been sustained by the state or\nthe political subdivision by reason of gross negligence or bad faith on\nthe part of such person.\n (5) The testimony of any person other than a physician, entitled to\nwithdraw blood pursuant to subparagraph one of this paragraph, in\nrespect to any such withdrawal of blood made by such person may be\nreceived in evidence with the same weight, force and effect as if such\nwithdrawal of blood were made by a physician.\n (6) The provisions of subparagraphs two, three and four of this\nparagraph shall also apply with regard to any person employed by a\nhospital as security personnel for any act done or omitted in the course\nof withdrawing blood at the request of a police officer pursuant to a\ncourt order in accordance with subdivision three of this section.\n (b) Right to additional test. The person tested shall be permitted to\nchoose a physician to administer a chemical test in addition to the one\nadministered at the direction of the police officer.\n (c) Rules and regulations. The department of health shall issue and\nfile rules and regulations approving satisfactory techniques or methods\nof conducting chemical analyses of a person's blood, urine, breath or\nsaliva and to ascertain the qualifications and competence of individuals\nto conduct and supervise chemical analyses of a person's blood, urine,\nbreath or saliva. If the analyses were made by an individual possessing\na permit issued by the department of health, this shall be presumptive\nevidence that the examination was properly given. The provisions of this\nparagraph do not prohibit the introduction as evidence of an analysis\nmade by an individual other than a person possessing a permit issued by\nthe department of health.\n