§ 1194-A — Driving after having consumed alcohol; under twenty-one; procedure

§ 1194-a. Driving after having consumed alcohol; under twenty-one;\nprocedure. 1. Chemical test report and hearing. (a) Whenever a chemical\ntest of the breath, blood, urine or saliva of an operator who is under\nthe age of twenty-one indicates that such person has operated a motor\nvehicle in violation of section eleven hundred ninety-two-a of this\narticle, and such person is not charged with violating any subdivision\nof section eleven hundred ninety-two arising out of the same incident,\nthe police officer who administered the test shall forward a report of\nthe results of such test to the department within twenty-four hours of\nthe time when such results are available in a manner prescribed by the\ncommissioner, and the operator shall be given a hearing notice as\nprovided in subdivision one-a of this section, to appear before a\nhearing officer in the county where the chemical test was administered,\nor in an adjoining county under such circumstances as prescribed by the\ncommissioner, on a date to be established in accordance with a schedule\npromulgated by the commissioner. Such hearing shall occur within thirty\ndays of, but not less than forty-eight hours from, the date that the\nchemical test was administered, provided, however, where the\ncommissioner determines, based upon the availability of hearing officers\nand the anticipated volume of hearings at a particular location, that\nthe scheduling of such hearing within thirty days would impair the\ntimely scheduling or conducting of other hearings pursuant to this\nchapter, such hearing shall be scheduled at the next hearing date for\nsuch particular location. When providing the operator with such hearing\nnotice, the police officer shall also give to the operator, and shall,\nprior to the commencement of the hearing, provide to the department,\ncopies of the following reports, documents and materials: any written\nreport or document, or portion thereof, concerning a physical\nexamination, a scientific test or experiment, including the most recent\nrecord of inspection, or calibration or repair of machines or\ninstruments utilized to perform such scientific tests or experiments and\nthe certification certificate, if any, held by the operator of the\nmachine or instrument, which tests or examinations were made by or at\nthe request or direction of a public servant engaged in law enforcement\nactivity. The report of the police officer shall be verified by having\nthe report sworn to, or by affixing to such report a form notice that\nfalse statements made therein are punishable as a class A misdemeanor\npursuant to section 210.45 of the penal law and such form notice\ntogether with the subscription of the deponent shall constitute\nverification of the report.\n (b) Every person under the age of twenty-one who is alleged to have\noperated a motor vehicle after having consumed alcohol as set forth in\nsection eleven hundred ninety-two-a of this article, and who is not\ncharged with violating any subdivision of section eleven hundred\nninety-two of this article arising out of the same incident, is entitled\nto a hearing before a hearing officer in accordance with the provisions\nof this section. Unless otherwise provided by law, the license or permit\nto drive or any non-resident operating privilege of such person shall\nnot be suspended or revoked prior to the scheduled date for such\nhearing.\n (i) The hearing shall be limited to the following issues: (1) did\nsuch person operate the motor vehicle; (2) was a valid request to submit\nto a chemical test made by the police officer in accordance with the\nprovisions of section eleven hundred ninety-four of this article; (3)\nwas such person less than twenty-one years of age at the time of\noperation of the motor vehicle; (4) was the chemical test properly\nadministered in accordance with the provisions of section eleven hundred\nninety-four of this article; (5) did the test find that such person had\ndriven after having consumed alcohol as defined in section eleven\nhundred ninety-two-a of this article; and (6) did the police officer\nmake a lawful stop of such person. The burden of proof shall be on the\npolice officer to prove each of these issues by clear and convincing\nevidence.\n (ii) Every person who is entitled to a hearing pursuant to this\nsubdivision has the right to be present at the hearing; the right to be\nrepresented by attorney, or in the hearing officer's discretion, by any\nother person the operator chooses; the right to receive and review\ndiscovery materials as provided in this subdivision; the right not to\ntestify; the right to present evidence and witnesses in his own behalf,\nthe right to cross examine adverse witnesses, and the right to appeal\nfrom an adverse determination in accordance with article three-A of this\nchapter. Any person representing the operator must conform to the\nstandards of conduct required of attorneys appearing before state\ncourts, and failure to conform to these standards will be grounds for\ndeclining to permit his continued appearance in the hearing.\n (iii) Hearings conducted pursuant to this subdivision shall be in\naccordance with this subdivision and with the provisions applicable to\nthe adjudication of traffic infractions pursuant to the following\nprovisions of part 124 of title fifteen of the codes, rules and\nregulations of the state of New York: paragraph (b) of section 124.1\nregarding the opening statement; paragraph (b) of section 124.2\nregarding the right to representation and to remain silent and\nparagraphs (a) through (e) of section 124.4 regarding the conduct of the\nhearing, procedure and recusal; provided, however, that nothing\ncontained in this subparagraph shall be deemed to preclude a hearing\nofficer from changing the order of a hearing conducted pursuant to this\nsubdivision as justice may require and for good cause shown.\n (iv) The rules governing receipt of evidence in a court of law shall\nnot apply in a hearing conducted pursuant to this subdivision except as\nfollows:\n (1) on the merits of the charge, and whether or not a party objects,\nthe hearing officer shall exclude from consideration the following: a\nprivileged communication; evidence which, for constitutional reasons,\nwould not be admissible in a court of law; evidence of prior misconduct,\nincompetency or illness, except where such evidence would be admissible\nin a court of law; evidence which is irrelevant or immaterial;\n (2) no negative inference shall be drawn from the operator's\nexercising the right not to testify.\n (v) If, after such hearing, the hearing officer, acting on behalf of\nthe commissioner, finds all of the issues set forth in this subdivision\nin the affirmative, the hearing officer shall suspend or revoke the\nlicense or permit to drive or non-resident operating privilege of such\nperson in accordance with the time periods set forth in subdivision two\nof section eleven hundred ninety-three of this article. If, after such\nhearing, the hearing officer, acting on behalf of the commissioner,\nfinds any of said issues in the negative, the hearing officer must find\nthat the operator did not drive after having consumed alcohol.\n (vi) A person who has had a license or permit to drive or non-resident\noperating privilege suspended or revoked pursuant to the provisions of\nthis section may appeal the finding of the hearing officer in accordance\nwith the provisions of article three-A of this chapter.\n (c) Unless an adjournment of the hearing date has been granted, upon\nthe operator's failure to appear for a scheduled hearing, the\ncommissioner shall suspend the license or permit to drive or\nnon-resident operating privilege until the operator petitions the\ncommissioner and a rescheduled hearing is conducted, provided, however,\nthe commissioner shall restore such person's license or permit to drive\nor non-resident operating privilege if such rescheduled hearing is\nadjourned at the request of a person other than the operator. Requests\nfor adjournments shall be made and determined in accordance with\nregulations promulgated by the commissioner. If such a request by the\noperator for an adjournment is granted, the commissioner shall notify\nthe operator of the rescheduled hearing, which shall be scheduled for\nthe next hearing date. If a second or subsequent request by the operator\nfor an adjournment is granted, the operator's license or permit to drive\nor non-resident operating privilege may be suspended pending the hearing\nat the time such adjournment is granted; provided, however, that the\nrecords of the department or the evidence already admitted furnishes\nreasonable grounds to believe such suspension is necessary to prevent\ncontinuing violations or a substantial traffic safety hazard; and\nprovided further, that such hearing shall be scheduled for the next\nhearing date.\n If a police officer does not appear for a hearing, the hearing officer\nshall have the authority to dismiss the charge. Any person may waive the\nright to a hearing under this subdivision, in a form and manner\nprescribed by the commissioner, and may enter an admission of guilt, in\nperson or by mail, to the charge of operating a motor vehicle in\nviolation of section eleven hundred ninety-two-a of this article. Such\nadmission of guilt shall have the same force and effect as a finding of\nguilt entered following a hearing conducted pursuant to this\nsubdivision.\n 1-a. Hearing notice. The hearing notice issued to an operator pursuant\nto subdivision one of this section shall be in a form as prescribed by\nthe commissioner. In addition to containing information concerning the\ntime, date and location of the hearing, and such other information as\nthe commissioner deems appropriate, such hearing notice shall also\ncontain the following information: the date, time and place of the\noffense charged; the procedures for requesting an adjournment of a\nscheduled hearing as provided in this section, the operator's right to a\nhearing conducted pursuant to this section and the right to waive such\nhearing and plead guilty, either in person or by mail, to the offense\ncharged.\n 2. Civil penalty. Unless otherwise provided, any person whose license,\npermit to drive, or any non-resident operating privilege is suspended or\nrevoked pursuant to the provisions of this section shall also be liable\nfor a civil penalty in the amount of one hundred twenty-five dollars,\nwhich shall be distributed in accordance with the provisions of\nsubdivision nine of section eighteen hundred three of this chapter.\n 3. Refusal report and hearing. (a) Any person under the age of\ntwenty-one who is suspected of operating a motor vehicle after having\nconsumed alcohol in violation of section eleven hundred ninety-two-a of\nthis chapter, and who is not charged with violating any subdivision of\nsection eleven hundred ninety-two of this article arising out of the\nsame incident, and who has been requested to submit to a chemical test\npursuant to paragraph (a) of subdivision two of section eleven hundred\nninety-four of this article and after having been informed that his\nlicense or permit to drive and any non-resident operating privilege\nshall be revoked for refusal to submit to such chemical test or any\nportion thereof, whether or not there is a finding of driving after\nhaving consumed alcohol, and such person refuses to submit to such\nchemical test or any portion thereof, shall be entitled to a hearing in\naccordance with a schedule promulgated by the commissioner, and such\nhearing shall occur within thirty days of, but not less than forty-eight\nhours from, the date of such refusal, provided, however, where the\ncommissioner determines, based upon the availability of hearing officers\nand the anticipated volume of hearings at a particular location, that\nthe scheduling of such hearing within thirty days would impair the\ntimely scheduling or conducting of other hearings pursuant to this\nchapter, such hearing shall be scheduled at the next hearing date for\nsuch particular location.\n (b) Unless an adjournment of the hearing date has been granted, upon\nthe operator's failure to appear for a scheduled hearing, the\ncommissioner shall suspend the license or permit to drive or\nnon-resident operating privilege until the operator petitions the\ncommissioner and a rescheduled hearing is conducted, provided, however,\nthe commissioner shall restore such person's license or permit to drive\nor non-resident operating privilege if such rescheduled hearing is\nadjourned at the request of a person other than the operator. Requests\nfor adjournments shall be made and determined in accordance with\nregulations promulgated by the commissioner. If such a request by the\noperator for an adjournment is granted, the commissioner shall notify\nthe operator of the rescheduled hearing, which shall be scheduled for\nthe next hearing date. If a second or subsequent request by the operator\nfor an adjournment is granted, the operator's license or permit to drive\nor non-resident operating privilege may be suspended pending the hearing\nat the time such adjournment is granted; provided, however, that the\nrecords of the department or the evidence already admitted furnishes\nreasonable grounds to believe such suspension is necessary to prevent\ncontinuing violations or a substantial traffic safety hazard; and\nprovided further, that such hearing shall be scheduled for the next\nhearing date.\n If a police officer does not appear for a hearing, the hearing officer\nshall have the authority to dismiss the charge. Any person may waive the\nright to a hearing under this subdivision.\n (c) The hearing on the refusal to submit to a chemical test pursuant\nto this subdivision shall be limited to the following issues: (1) was a\nvalid request to submit to a chemical test made by the police officer in\naccordance with the provisions of section eleven hundred ninety-four of\nthis article; (2) was such person given sufficient warning, in clear or\nunequivocal language, prior to such refusal that such refusal to submit\nto such chemical test or any portion thereof, would result in the\nrevocation of such person's license or permit to drive or nonresident\noperating privilege, whether or not such person is found to have\noperated a motor vehicle after having consumed alcohol; (3) did such\nperson refuse to submit to such chemical test or any portion thereof;\n(4) did such person operate the motor vehicle; (5) was such person less\nthan twenty-one years of age at the time of operation of the motor\nvehicle; (6) did the police officer make a lawful stop of such person.\nIf, after such hearing, the hearing officer, acting on behalf of the\ncommissioner, finds on any one said issue in the negative, the hearing\nofficer shall not revoke the operator's license or permit to drive or\nnon-resident operating privilege and shall immediately terminate any\noutstanding suspension of the operator's license, permit to drive or\nnon-resident operating privilege arising from such refusal. If, after\nsuch hearing, the hearing officer, acting on behalf of the commissioner,\nfinds all of the issues in the affirmative, such hearing officer shall\nimmediately revoke the license or permit to drive or any non-resident\noperating privilege in accordance with the provisions of paragraph (d)\nof subdivision two of section eleven hundred ninety-four of this\narticle. A person who has had a license or permit to drive or\nnon-resident operating privilege suspended or revoked pursuant to the\nprovisions of this section may appeal the findings of the hearing\nofficer in accordance with the provisions of article three-A of this\nchapter.\n