§ 1289 — Operation of an electric scooter while under the influence of alcohol or drugs

§ 1289. Operation of an electric scooter while under the influence of\nalcohol or drugs. 1. Offenses; criminal penalties. (a) Operating an\nelectric scooter while ability impaired. No person shall operate an\nelectric scooter while the person's ability to operate such electric\nscooter is impaired by the consumption of alcohol.\n (i) A violation of this paragraph shall be a traffic infraction and\nshall be punishable by a fine of not more than three hundred dollars, or\nby imprisonment in a penitentiary or county jail for not more than\nfifteen days, or by both such fine and imprisonment.\n (ii) A person who operates an electric scooter in violation of this\nparagraph after having been convicted of a violation of any paragraph of\nthis subdivision within the preceding five years shall be punished by a\nfine of not more than seven hundred fifty dollars, or by imprisonment of\nnot more than thirty days in a penitentiary or county jail or by both\nsuch fine and imprisonment.\n (iii) A person who operates an electric scooter in violation of this\nparagraph after being convicted two or more times of a violation of any\nparagraph of this subdivision within the preceding ten years shall be\nguilty of a misdemeanor, and shall be punished by a fine of not more\nthan one thousand dollars, or by imprisonment of not more than one\nhundred eighty days in a penitentiary or county jail or by both such\nfine and imprisonment.\n (b) Operating an electric scooter while intoxicated; per se. No person\nshall operate an electric scooter while such person has .08 of one per\ncentum or more by weight of alcohol in the person's blood as shown by\nchemical analysis of such person's blood, breath, urine or saliva, made\npursuant to the provisions of subdivision five of this section.\n (c) Operating an electric scooter while intoxicated. No person shall\noperate an electric scooter while in an intoxicated condition.\n (d) Operating an electric scooter while ability impaired by drugs. No\nperson shall operate an electric scooter while the person's ability to\noperate such electric scooter is impaired by the use of a drug as\ndefined in this chapter.\n (e) Operating an electric scooter while ability impaired by the\ncombined influence of drugs or of alcohol and any drug or drugs. No\nperson shall operate an electric scooter while the person's ability to\noperate such electric scooter is impaired by the combined influence of\ndrugs or of alcohol and any drug or drugs.\n (f) Penalty. (i) A violation of paragraph (b), (c), (d) or (e) of this\nsubdivision shall be a misdemeanor and shall be punishable by a fine of\nnot more than five hundred dollars, or by imprisonment in a penitentiary\nor county jail for not more than one year, or by both such fine and\nimprisonment.\n (ii) A person who operates an electric scooter in violation of\nparagraph (b), (c), (d) or (e) of this subdivision after having been\nconvicted of a violation of paragraph (b), (c), (d) or (e) of this\nsubdivision within the preceding ten years shall be guilty of a class E\nfelony, and shall be punished by a fine of not more than one thousand\ndollars or by a period of imprisonment as provided in the penal law, or\nby both such fine and imprisonment.\n (iii) A person who operates an electric scooter in violation of\nparagraph (b), (c), (d) or (e) of this subdivision after having been\nconvicted of a violation of paragraph (b), (c), (d) or (e) of this\nsubdivision two or more times within the preceding ten years shall be\nguilty of a class E felony, and shall be punished by a fine of not more\nthan four thousand dollars or by a period of imprisonment as provided in\nthe penal law, or by both such fine and imprisonment.\n 2. Certain sentences prohibited. Notwithstanding any provisions of the\npenal law, no judge or magistrate shall impose a sentence of\nunconditional discharge for a violation of paragraph (b), (c), (d) or\n(e) of subdivision one of this section.\n 3. Sentencing: previous convictions. When sentencing a person for a\nviolation of paragraph (b), (c), (d) or (e) of subdivision one of this\nsection pursuant to subparagraph (ii) of paragraph (f) of subdivision\none of this section, the court shall consider any prior convictions the\nperson may have for a violation of subdivision two, two-a, three, four,\nor four-a of section eleven hundred ninety-two of this title within the\npreceding ten years. When sentencing a person for a violation of\nparagraph (b), (c), (d) or (e) of subdivision one of this section\npursuant to subparagraph (iii) of paragraph (f) of subdivision one of\nthis section, the court shall consider any prior convictions the person\nmay have for a violation of subdivision two, two-a, three, four, or\nfour-a of section eleven hundred ninety-two of this title within the\npreceding ten years. When sentencing a person for a violation of\nsubparagraph (ii) of paragraph (a) of subdivision one of this section,\nthe court shall consider any prior convictions the person may have for a\nviolation of any subdivision of section eleven hundred ninety-two of\nthis title within the preceding five years. When sentencing a person for\na violation of subparagraph (iii) of paragraph (a) of subdivision one of\nthis section, the court shall consider any prior convictions the person\nmay have for a violation of any subdivision of section eleven hundred\nninety-two of this title within the preceding ten years.\n 4. Arrest and field testing. (a) Arrest. Notwithstanding the\nprovisions of section 140.10 of the criminal procedure law, a police\nofficer may, without a warrant, arrest a person, in case of a violation\nof any paragraph of subdivision one of this section, if such violation\nis coupled with an accident or collision in which such person is\ninvolved, which in fact had been committed, though not in the police\nofficer's presence, when the officer has reasonable cause to believe\nthat the violation was committed by such person. For the purposes of\nthis subdivision, police officer shall also include a peace officer\nauthorized to enforce this chapter when the alleged violation\nconstitutes a crime.\n (b) Field testing. Every person operating an electric scooter which\nhas been involved in an accident 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 five of this section.\n 5. Chemical tests; when authorized. A police officer may request any\nperson who operates an electric scooter in this state to 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 such person's blood, provided that such test is administered 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: (a) having reasonable grounds to believe\nsuch person to have been operating in violation of paragraph (a), (b),\n(c), (d) or (e) of subdivision one of this section and within two hours\nafter such person has been placed under arrest for any such violation;\nor (b) within two hours after a breath test, as provided in paragraph\n(b) of subdivision four 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 6. Testing procedures. (a) Persons authorized to withdraw blood;\nimmunity; testimony. (i) At the request of a police officer, the\nfollowing persons may withdraw blood for the purpose of determining the\nalcoholic or drug content therein: (A) 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 (B) 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 (ii) 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 (iii) 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 (ii) of this paragraph, may maintain such action\nagainst the state if any person entitled to withdraw blood pursuant to\nthis paragraph acted at the request of a police officer employed by the\nstate, or against the appropriate political subdivision of the state if\nsuch person acted at the request of a police officer employed by a\npolitical 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 (iv) Notwithstanding subparagraphs (i), (ii) and (iii) of this\nparagraph an action may be maintained by the state or a political\nsubdivision thereof against a person entitled to withdraw blood pursuant\nto subparagraph (i) of this paragraph or hospital employing such person\nfor whose act or omission the state or the political subdivision has\nbeen held liable under this paragraph to recover damages, not exceeding\nthe amount awarded to the claimant, that may have been sustained by the\nstate or the political subdivision by reason of gross negligence or bad\nfaith on the part of such person.\n (v) The testimony of any person other than a physician, entitled to\nwithdraw blood pursuant to subparagraph (i) 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 (vi) The provisions of subparagraphs (ii), (iii) and (iv) 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 this\nsection.\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 7. Chemical test evidence. (a) Admissibility. Upon the trial of any\nsuch action or proceeding arising out of actions alleged to have been\ncommitted by any person arrested for a violation of any paragraph of\nsubdivision one of this section, the court shall admit evidence of the\namount of alcohol or drugs in the defendant's blood as shown by a test\nadministered pursuant to the provisions of subdivision five of this\nsection.\n (b) Probative value. The following effect shall be given to evidence\nof blood-alcohol content, as determined by such tests, of a person\narrested for a violation of subdivision one of this section:\n (i) evidence that there was .05 of one per centum or less by weight of\nalcohol in such person's blood shall be prima facie evidence that the\nability of such person to operate an electric scooter was not impaired\nby the consumption of alcohol, and that such person was not in an\nintoxicated condition;\n (ii) evidence that there was more than .05 of one per centum but less\nthan .07 of one per centum by weight of alcohol in such person's blood\nshall be prima facie evidence that such person was not in an intoxicated\ncondition, but such evidence shall be relevant evidence, but shall not\nbe given prima facie effect, in determining whether the ability of such\nperson to operate an electric scooter was impaired by the consumption of\nalcohol; and\n (iii) evidence that there was .07 of one per centum or more but less\nthan .08 of one per centum by weight of alcohol in such person's blood\nshall be prima facie evidence that such person was not in an intoxicated\ncondition, but such evidence shall be given prima facie effect in\ndetermining whether the ability of such person to operate an electric\nscooter was impaired by the consumption of alcohol.\n 8. Where applicable. The provisions of this section shall apply upon\npublic highways, private roads open to motor vehicle traffic, any other\nparking lot, and sidewalks. For the purposes of this section "parking\nlot" shall mean any area or areas of private property, including a\ndriveway, near or contiguous to and provided in connection with premises\nand used as a means of access to and egress from a public highway to\nsuch premises and having a capacity for the parking of four or more\nmotor vehicles. The provisions of this section shall not apply to any\narea or areas of private property comprising all or part of property on\nwhich is situated a one or two family residence.\n 9. Enforcement upon crash. Notwithstanding any provision of this\nsection, no part of this section may be enforced unless in conjunction\nwith a crash involving an operator of an electric scooter. For the\npurposes of this subdivision, "crash" shall mean colliding with a\nvehicle, person, building or other object.\n