§ 1198-A — Special procedures and disposition involving alcohol and substance abuse assessment and treatment

§ 1198-a. Special procedures and disposition involving alcohol and\nsubstance abuse assessment and treatment. 1. Definitions. For purposes\nof this section, the following terms shall have the following meanings:\n (a) "Alcohol and substance abuse professional" shall mean persons\ncredentialed by the office of alcoholism and substance abuse services to\nprovide alcohol and substance abuse services pursuant to the mental\nhygiene law and persons licensed by the state education department in an\nappropriate health field, including licensed clinical social worker,\nlicensed master social worker, licensed mental health counselor, nurse\npractitioner, physician, physician's assistant, psychiatrist,\npsychologist, and registered nurse.\n (b) "Licensed agency" shall mean an agency licensed by the office of\nalcoholism and substance abuse services to provide alcohol and substance\nabuse services pursuant to the mental hygiene law.\n 2. Procedure. (a) Mandatory screening; when authorized. Upon the\narraignment of, or at the discretion of the court, prior to the\nsentencing of any person who (i) at arraignment is charged with or prior\nto sentencing convicted of a first violation of operating a motor\nvehicle in violation of subdivision one, two or three or paragraph (b)\nof subdivision two-a of section eleven hundred ninety-two of this\narticle while such person has less than .15 of one per centum by weight\nof alcohol 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, or in violation\nof subdivision four of such section eleven hundred ninety-two, or (ii)\nhas refused to submit to a chemical test pursuant to section eleven\nhundred ninety-four of this article, the court shall order such person\nto submit to screening for alcohol or substance abuse and dependency\nusing a standardized written screening instrument developed by the\noffice of alcoholism and substance abuse services, to be administered by\nan alcohol or substance abuse professional.\n (b) Mandatory assessment; when authorized. The court shall order a\ndefendant to undergo a formal alcohol or substance abuse and dependency\nassessment by an alcohol or substance abuse professional or a licensed\nagency: (i) when the screening required by paragraph (a) of this\nsubdivision indicates that a defendant is abusing or dependent upon\nalcohol or drugs; (ii) following the arraignment of any person charged\nwith or, at the discretion of the court, prior to the sentencing of any\nperson convicted of a violation of subdivision one, two, three, four or\nfour-a of section eleven hundred ninety-two of this article after having\nbeen convicted of a violation of any subdivision of section eleven\nhundred ninety-two of this article or of vehicular assault in the second\nor first degree, as defined, respectively, in sections 120.03 and 120.04\nof the penal law or of aggravated vehicular assault, as defined in\nsection 120.04-a of the penal law or of vehicular manslaughter in the\nsecond or first degree, as defined, respectively, in sections 125.12 and\n125.13 of the penal law or of aggravated vehicular homicide, as defined\nin section 125.14 of such law within the preceding five years or after\nhaving been convicted of a violation of any subdivision of such section\nor of vehicular assault in the second or first degree, as defined,\nrespectively, in sections 120.03 and 120.04 of the penal law or of\naggravated vehicular assault, as defined in section 120.04-a of the\npenal law or of vehicular manslaughter in the second or first degree, as\ndefined, respectively, in sections 125.12 and 125.13 of the penal law or\nof aggravated vehicular homicide, as defined in section 125.14 of such\nlaw, two or more times within the preceding ten years; or (iii)\nfollowing the arraignment of any person charged with or, at the\ndiscretion of the court, prior to the sentencing of any person convicted\nof operating a motor vehicle in violation of subdivision two or three or\nparagraph (b) of subdivision two-a of section eleven hundred ninety-two\nof this article while such person has .15 of one per centum or more by\nweight of alcohol in the person's blood as shown by a chemical analysis\nof such person's blood, breath, urine or saliva made pursuant to the\nprovisions of section eleven hundred ninety-four of this article or in\nviolation of paragraph (a) of subdivision two-a of section eleven\nhundred ninety-two of this article.\n (c) Mandatory assessment; procedure. The assessment ordered by a court\npursuant to this section shall be performed by an alcohol or substance\nabuse professional or a licensed agency which shall forward the results,\nin writing, to the court and to the defendant or his or her counsel\nwithin thirty days of the date of such order.\n 3. Authorized disposition. When a sentence of probation or a\nconditional discharge is imposed upon a person who has been required to\nundergo an alcohol or substance abuse and dependency assessment pursuant\nto subdivision two of this section and where such assessment indicates\nthat such person is in need of treatment for alcohol or substance abuse\nor dependency, the court shall require, as a condition of such sentence,\nthat such person participate in and successfully complete such\ntreatment. Such treatment shall be provided by an alcohol or substance\nabuse professional or a licensed agency.\n 4. Any case wherein a court has accepted a plea pursuant to the\nprovisions of subparagraph (ii) of paragraph (a) of subdivision ten of\nsection eleven hundred ninety-two of this article and such plea includes\nas a condition thereof that the defendant attend and complete the\nalcohol and drug rehabilitation program established pursuant to section\neleven hundred ninety-six of this article, including any assessment and\ntreatment required thereby, shall be deemed to be in compliance with the\nprovisions of this section.\n 5. The chief administrator of the office of court administration shall\nmake available to all courts in this state with jurisdiction in criminal\ncases a list of alcohol and substance abuse professionals and licensed\nagencies as provided by the office of alcoholism and substance abuse\nservices pursuant to subdivision (g) of section 19.07 of the mental\nhygiene law.\n 6. Confidentiality of records. (a) The records and content of all\nscreenings, assessments and treatment conducted pursuant to this\nsection, including the identity, diagnosis and prognosis of each\nindividual who is the subject of such records, and including any\nstatements or admissions of such individual made during the course of\nsuch screenings, assessments and treatment, shall be confidential, shall\nnot be disclosed except as authorized by this subdivision, and shall not\nbe entered or received as evidence at any civil, criminal or\nadministrative trial, hearing or proceeding. No person, other than a\ndefendant to whom such records are disclosed, may redisclose such\nrecords.\n (b) Consistent with Section 290 dd-2 of Title 42 of the United States\nCode, as such law may, from time to time, be amended, such records and\ncontent may only be disclosed as follows:\n (i) to a court for the sole purpose of requiring a defendant charged\nwith or convicted of a violation of subdivision one, two, two-a, three,\nfour or four-a of section eleven hundred ninety-two of this article to\nundergo alcohol or substance abuse or dependency assessment or\ntreatment;\n (ii) to the defendant or his or her authorized representative; and\n (iii) to medical personnel to the extent necessary to meet a bona fide\nmedical emergency.\n 7. Effect of completion of treatment. Except as provided in\nsubparagraph nine of paragraph (b) of subdivision two of section eleven\nhundred ninety-three or in subparagraph three of paragraph (d) of\nsubdivision two of section eleven hundred ninety-four of this article,\nupon successful completion of treatment ordered pursuant to this section\nas certified by the alcohol or substance abuse professional or licensed\nagency which provided such treatment, the defendant may apply to the\ncommissioner on a form provided for that purpose, for the termination of\nthe suspension or revocation order issued as a result of the defendant's\nconviction. In the exercise of discretion, upon receipt of such\napplication, and upon payment of any civil penalties for which the\ndefendant may be liable, the commissioner is authorized to terminate\nsuch order or orders and return the defendant's license or reinstate the\nprivilege of operating a motor vehicle in this state. However, the\ncommissioner shall not issue any new license nor restore any license\nwhere said issuance or restoration is prohibited by subdivision two of\nsection eleven hundred ninety-three of this article.\n