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Alcohol, Drugs & DWI |
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Contents as of November 2006
(Only highlighted sections of the V&T Law are available on this page.)
| Article 31 |
Alcohol and Drug-Related Offenses and Procedures Applicable Thereto |
| Section 1192. |
Operating a motor vehicle while under the influence of alcohol or drugs. |
| Section 1192-a. |
Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se. |
| Section 1193. |
Sanctions. |
| Section 1194. |
Arrest and testing. |
| Section 1194-a. |
Driving after having consumed alcohol; under twenty-one; procedure. |
| Section 1195. |
Chemical test evidence. |
| Section 1196. |
Alcohol and drug rehabilitation program. |
| Section 1197. |
Special traffic options program for driving while intoxicated. [STOP-DWI] |
| Section 1198. |
Ignition interlock device program. |
| Article 33 |
Miscellaneous rules |
| Section 1227. |
Consumption or possession of alcoholic beverages in certain motor vehicles. |
§ 1192. Operating a motor vehicle while under the influence of alcohol or drugs.
1. Driving while ability impaired. No person shall operate a motor vehicle while
the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
2-a. Aggravated driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .18 grams or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.
4-a. Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.
5. Commercial motor vehicles: per se - level I. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a chemical analysis of such person's blood, breath, urine, or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article, indicates that such operator has .02 of one per centum or more but less than .04 of one per centum by weight of alcohol in such operator's blood.
6. Commercial motor vehicles; per se - level II. Notwithstanding the
provisions of section eleven hundred ninety-five of this article, no person
shall operate a commercial motor vehicle while such person has more than .06 of
one per centum but less than .08 of one per centum by weight of alcohol in the
person's blood as shown by chemical analysis of such person's blood, breath,
urine or saliva, made pursuant to the provisions of section eleven hundred
ninety-four of this article; provided, however, nothing contained in this
subdivision shall prohibit the imposition of a charge of a violation of
subdivision one of this section.
7. Where applicable. The provisions of this section shall apply upon public
highways, private roads open to motor vehicle traffic and any other parking lot.
For the purposes of this section "parking lot" shall mean any area or
areas of private property, including a driveway, near or contiguous to and
provided in connection with premises and used as a means of access to and egress
from a public highway to such premises and having a capacity for the parking of
four or more motor vehicles. The provisions of this section shall not apply to
any area or areas of private property comprising all or part of property on
which is situated a one or two family residence.
8. Effect of prior out-of-state conviction. A prior out-of-state conviction
for operating a motor vehicle while under the influence of alcohol or drugs
shall be deemed to be a prior conviction of a violation of this section for
purposes of determining penalties imposed under this section or for purposes of
any administrative action required to be taken pursuant to subdivision two of
section eleven hundred ninety-three of this article; provided, however, that
such conduct, had it occurred in this state, would have constituted a
misdemeanor or felony violation of any of the provisions of this section.
Provided, however, that if such conduct, had it occurred in this state, would
have constituted a violation of any provisions of this section which are not
misdemeanor or felony offenses, then such conduct shall be deemed to be a prior
conviction of a violation of subdivision one of this section for purposes of
determining penalties imposed under this section or for purposes of any
administrative action required to be taken pursuant to subdivision two of
section eleven hundred ninety-three of this article.
8-a. Effect of prior finding of having consumed alcohol. A prior finding that
a person under the age of twenty-one has operated a motor vehicle after having
consumed alcohol pursuant to section eleven hundred ninety-four-a of this
article shall have the same effect as a prior conviction of a violation of
subdivision one of this section solely for the purpose of determining the length
of any license suspension or revocation required to be imposed under any
provision of this article, provided that the subsequent offense is committed
prior to the expiration of the retention period for such prior offense or
offenses set forth in paragraph (k) of subdivision one of section two hundred
one of this chapter.
9. Conviction of a different charge. A driver may be convicted of a violation
of subdivision one, two or three of this section, notwithstanding that the
charge laid before the court alleged a violation of subdivision two or three of
this section, and regardless of whether or not such conviction is based on a
plea of guilty.
10. Plea bargain limitations. (a) (i) In any case wherein the charge laid
before the court alleges a violation of subdivision two, three, four or four-a
of this section, any plea of guilty thereafter entered in satisfaction of such
charge must include at least a plea of guilty to the violation of the provisions
of one of the subdivisions of this section, other than subdivision five or six,
and no other disposition by plea of guilty to any other charge in satisfaction
of such charge shall be authorized; provided, however, if the district attorney,
upon reviewing the available evidence, determines that the charge of a violation
of this section is not warranted, such district attorney may consent, and the
court may allow a disposition by plea of guilty to another charge in
satisfaction of such charge; provided, however, in all such cases, the court
shall set forth upon the record the basis for such disposition. (ii) In any case
wherein the charge laid before the court alleges a violation of subdivision two,
three, four or four-a of this section, no plea of guilty to subdivision one of
this section shall be accepted by the court unless such plea includes as a
condition thereof the requirement that the defendant attend and complete the
alcohol and drug rehabilitation program established pursuant to section eleven
hundred ninety-six of this article, including any assessment and treatment
required thereby; provided, however, that such requirement may be waived by the
court upon application of the district attorney or the defendant demonstrating
that the defendant, as a condition of the plea, has been required to enter into
and complete an alcohol or drug treatment program prescribed pursuant to an
alcohol or substance abuse screening or assessment conducted pursuant to section
eleven hundred ninety-eight-a of this article or for other good cause shown. The
provisions of this subparagraph shall apply, notwithstanding any bars to
participation in the alcohol and drug rehabilitation program set forth in
section eleven hundred ninety-six of this article; provided, however, that
nothing in this paragraph shall authorize the issuance of a conditional license
unless otherwise authorized by law. (iii) In any case wherein the charge laid
before the court alleges a violation of subdivision one of this section and the
operator was under the age of twenty-one at the time of such violation, any plea
of guilty thereafter entered in satisfaction of such charge must include at
least a plea of guilty to the violation of such subdivision; provided, however,
such charge may instead be satisfied as provided in paragraph (c) of this
subdivision, and, provided further that, if the district attorney, upon
reviewing the available evidence, determines that the charge of a violation of
subdivision one of this section is not warranted, such district attorney may
consent, and the court may allow a disposition by plea of guilty to another
charge in satisfaction of such charge; provided, however, in all such cases, the
court shall set forth upon the record the basis for such disposition.
(b) In any case wherein the charge laid before the court alleges a violation of subdivision
one or six of this section while operating a commercial motor vehicle, any plea
of guilty thereafter entered in satisfaction of such charge must include at
least a plea of guilty to the violation of the provisions of one of the
subdivisions of this section and no other disposition by plea of guilty to any
other charge in satisfaction of such charge shall be authorized; provided,
however, if the district attorney upon reviewing the available evidence
determines that the charge of a violation of this section is not warranted, he
may consent, and the court may allow, a disposition by plea of guilty to another
charge is satisfaction of such charge.
(c) Except as provided in paragraph (b) of this subdivision, in any case wherein the charge laid before the court alleges a violation of subdivision one of this section by a person who was under
the age of twenty-one at the time of commission of the offense, the court, with
the consent of both parties, may allow the satisfaction of such charge by the
defendant's agreement to be subject to action by the commissioner pursuant to
section eleven hundred ninety-four-a of this article. In any such case, the
defendant shall waive the right to a hearing under section eleven hundred
ninety-four-a of this article and such waiver shall have the same force and
effect as a finding of a violation of section eleven hundred ninety-two-a of
this article entered after a hearing conducted pursuant to such section eleven
hundred ninety-four-a. The defendant shall execute such waiver in open court,
and, if represented by counsel, in the presence of his attorney, on a form to be
provided by the commissioner, which shall be forwarded by the court to the
commissioner within ninety-six hours. To be valid, such form shall, at a
minimum, contain clear and conspicuous language advising the defendant that a
duly executed waiver: (i) has the same force and effect as a guilty finding
following a hearing pursuant to section eleven hundred ninety-four-a of this
article; (ii) shall subject the defendant to the imposition of sanctions
pursuant to such section eleven hundred ninety-four-a; and (iii) may subject the
defendant to increased sanctions upon a subsequent violation of this section or
section eleven hundred ninety-two-a of this article. Upon receipt of a duly
executed waiver pursuant to this paragraph, the commissioner shall take such administrative action and impose such sanctions as may be required by section eleven hundred ninety-four-a of this article. (d) In any case wherein the charge laid before the court alleges a violation of subdivision two-a of this section, any plea of guilty thereafter entered in satisfaction of
such charge must include at least a plea of guilty to the violation of the
provisions of subdivision two, two-a or three of this section, and no other
disposition by plea of guilty to any other charge in satisfaction of such charge
shall be authorized; provided, however, if the district attorney, upon reviewing
the available evidence, determines that the charge of a violation of this
section is not warranted, such district attorney may consent and the court may
allow a disposition by plea of guilty to another charge in satisfaction of such
charge, provided, however, in all such cases, the court shall set forth upon the
record the basis for such disposition. Provided, further, however, that no such
plea shall be accepted by the court unless such plea includes as a condition
thereof the requirement that the defendant attend and complete the alcohol and
drug rehabilitation program established pursuant to section eleven hundred
ninety-six of this article, including any assessment and treatment required
thereby; provided, however, that such requirement may be waived by the court
upon application of the district attorney or the defendant demonstrating that
the defendant, as a condition of the plea, has been required to enter into and
complete an alcohol or drug treatment program prescribed pursuant to an alcohol
or substance abuse screening or assessment conducted pursuant to section eleven
hundred ninety-eight-a of this article or for other good cause shown. The
provisions of this paragraph shall apply, notwithstanding any bars to
participation in the alcohol and drug rehabilitation program set forth in
section eleven hundred ninety-six of this article; provided, however, that
nothing in this paragraph shall authorize the issuance of a conditional license
unless otherwise authorized by law.
11. No person other than an operator of a commercial motor
vehicle may be charged with or convicted of a violation of subdivision five or
six of this section.
12. Driving while intoxicated or while ability impaired by
drugs--serious physical injury or death. In every case where a person is charged
with a violation of subdivision two, two-a, three, four or four-a of this
section, the law enforcement officer alleging such charge shall make a clear
notation in the "Description of Violation" section of a simplified
traffic information if, arising out of the same incident, someone other than the
person charged was killed or suffered serious physical injury as defined in
section 10.00 of the penal law; such notation shall be in the form of a
"D" if someone other than the person charged was killed and such
notation shall be in the form of a "S.P.I." if someone other than the
person charged suffered serious physical injury; provided, however, that the
failure to make such notation shall in no way affect a charge for a violation of
subdivision two, two-a, three, four or four-a of this section.
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§ 1192-a. Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se.
No person under the age of twenty-one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety-two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety-four-a of this article. Except as otherwise provided in subdivision five of section eleven hundred ninety-two of this article, this section shall not apply to a person who operates a commercial motor vehicle. Notwithstanding any provision of law to the contrary, a finding that a person under the age of twenty-one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense.
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§ 1193. Sanctions.
1. Criminal penalties.
(a) Driving while ability impaired. A violation of
subdivision one of section eleven hundred ninety-two of this article shall be a
traffic infraction and shall be punishable by a fine of not less than three
hundred dollars nor more than five hundred dollars or by imprisonment in a
penitentiary or county jail for not more than fifteen days, or by both such fine
and imprisonment. A person who operates a vehicle in violation of such
subdivision after having been convicted of a violation of any subdivision of
section eleven hundred ninety-two of this article within the preceding five
years shall be punished by a fine of not less than five hundred dollars nor more
than seven hundred fifty dollars, or by imprisonment of not more than thirty
days in a penitentiary or county jail or by both such fine and imprisonment. A
person who operates a vehicle in violation of such subdivision after having been
convicted two or more times of a violation of any subdivision of section eleven
hundred ninety-two of this article within the preceding ten years shall be
guilty of a misdemeanor, and shall be punished by a fine of not less than seven
hundred fifty dollars nor more than fifteen hundred dollars, or by imprisonment
of not more than one hundred eighty days in a penitentiary or county jail or by
both such fine and imprisonment.
(b) Driving while intoxicated or while ability impaired by drugs or while
ability impaired by the combined influence of drugs or of alcohol and any drug
or drugs; aggravated driving while intoxicated; misdemeanor offenses. A
violation of subdivision two, three, four or four-a of section eleven hundred
ninety-two of this article shall be a misdemeanor and shall be punishable by a
fine of not less than five hundred dollars nor more than one thousand dollars,
or by imprisonment in a penitentiary or county jail for not more than one year,
or by both such fine and imprisonment. A violation of subdivision two-a of
section eleven hundred ninety-two of this article shall be a misdemeanor and
shall be punishable by a fine of not less than one thousand dollars nor more
than two thousand five hundred dollars or by imprisonment in a penitentiary or
county jail for not more than one year, or by both such fine and imprisonment.
In addition to the imposition of any fine or period of imprisonment set forth in
this paragraph, the court shall require that any person who has been convicted
of a violation of subdivision two-a of section eleven hundred ninety-two of this
article and who is sentenced to a period of probation, to install and maintain,
as a condition of such probation, a functioning ignition interlock device during
the term of such probation; provided, however, the court may not authorize the
operation of a motor vehicle by any person whose license or privilege to operate
a motor vehicle has been revoked pursuant to the provisions of this section.
(c) Felony offenses. (i) A person who operates a vehicle in violation of subdivision
two, two-a, three, four or four-a of section eleven hundred ninety-two of this
article after having been convicted of a violation of subdivision two, two-a,
three, four or four-a of such section or of vehicular assault in the second or
first degree, as defined, respectively, in sections 120.03 and 120.04 of the
penal law or of vehicular manslaughter in the second or first degree, as
defined, respectively, in sections 125.12 and 125.13 of such law, within the
preceding ten years, shall be guilty of a class E felony, and shall be punished
by a fine of not less than one thousand dollars nor more than five thousand
dollars or by a period of imprisonment as provided in the penal law, or by both
such fine and imprisonment. (ii) A person who operates a vehicle in violation of
subdivision two, two-a, three, four or four-a of section eleven hundred
ninety-two of this article after having been convicted of a violation of
subdivision two, two-a, three, four or four-a of such section or of vehicular
assault in the second or first degree, as defined, respectively, in sections
120.03 and 120.04 of the penal law or of vehicular manslaughter in the second or
first degree, as defined, respectively, in sections 125.12 and 125.13 of such
law, twice within the preceding ten years, shall be guilty of a class D felony,
and shall be punished by a fine of not less than two thousand dollars nor more
than ten thousand dollars or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment.
(continued...)
(7)(f) Where the court imposes a sentence for a violation of section eleven
hundred ninety-two of this article, the court may require the defendant, as a
part of or as a condition of such sentence, to attend a single session conducted
by a victims impact program. For purposes of this section, "victims impact
program" means a program operated by a county, a city with a population of
one million or more, by a not-for-profit organization authorized by any such
county or city, or a combination thereof, in which presentations are made
concerning the impact of operating a motor vehicle while under the influence of
alcohol or drugs to one or more persons who have been convicted of such
offenses. A description of any such program shall be filed with the commissioner
and with the coordinator of the special traffic options program for driving
while intoxicated established pursuant to section eleven hundred ninety-seven of
this article, and shall be made available to the court upon request. Nothing
contained herein shall be construed to require any governmental entity to create
such a victim impact program.
2. License sanctions. (a) Suspensions. Except as otherwise
provided in this subdivision, a license shall be suspended and a registration
may be suspended for the following periods:
(1) Driving while ability impaired. Ninety days, where the
holder is convicted of a violation of subdivision one of section eleven hundred
ninety-two of this article;
(2) Persons under the age of twenty-one; driving after having consumed alcohol. Six months, where the holder has been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety-two-a of this article where such person was under the age of twenty-one at the time of commission of such violation.
(b) Revocations. A license shall be revoked and a registration may be revoked for the following minimum periods:
(1) Driving while ability impaired; prior offense. Six
months, where the holder is convicted of a violation of subdivision one of
section eleven hundred ninety-two of this article committed within five years of
a conviction for a violation of any subdivision of section eleven hundred
ninety-two of this article.
(1-a) Driving while ability impaired; misdemeanor offense.
Six months, where the holder is convicted of a violation of subdivision one of
section eleven hundred ninety-two of this article committed within ten years of
two previous convictions for a violation of any subdivision of section eleven
hundred ninety-two of this article.
(2) Driving while intoxicated or while ability impaired by drugs or while
ability impaired by the combined influence of drugs or of alcohol and any drug
or drugs; aggravated driving while intoxicated. Six months, where the holder is
convicted of a violation of subdivision two, three, four or four-a of section
eleven hundred ninety-two of this article. One year where the holder is
convicted of a violation of subdivision two-a of section eleven hundred
ninety-two of this article.
(3) Driving while intoxicated or while ability
impaired by drugs or while ability impaired by the combined influence of drugs
or of alcohol and any drug or drugs; aggravated driving while intoxicated; prior
offense. One year, where the holder is convicted of a violation of subdivision
two, three, four or four-a of section eleven hundred ninety-two of this article
committed within ten years of a conviction for a violation of subdivision two,
three, four or four-a of section eleven hundred ninety-two of this article.
Eighteen months, where the holder is convicted of a violation of subdivision
two-a of section eleven hundred ninety-two of this article committed within ten
years of a conviction for a violation of subdivision two, two-a, three, four or
four-a of section eleven hundred ninety-two of this article; or where the holder
is convicted of a violation of subdivision two, three, four or four-a of section
eleven hundred ninety-two of this article committed within ten years of a
conviction for a violation of subdivision two-a of section eleven hundred
ninety-two of this article.
(continued...)
(6) Persons under the age of twenty-one. One year, where
the holder is convicted of or adjudicated a youthful offender for a violation of
any subdivision of section eleven hundred ninety-two of this article, or is
convicted of or receives a youthful offender or other juvenile adjudication for
an offense consisting of operating a motor vehicle under the influence of
intoxicating liquor where the conviction, or youthful offender or other juvenile
adjudication was had outside this state, where such person was under the age of
twenty-one at the time of commission of such violation.
(7) Persons under the age of twenty-one; prior offense or finding. One year or until the holder reaches the age of twenty-one, whichever is the
greater period of time, where the holder has been found to have operated a motor
vehicle after having consumed alcohol in violation of section eleven hundred
ninety-two-a of this article, or is convicted of, or adjudicated a youthful
offender for, a violation of any subdivision of section eleven hundred
ninety-two of this article, or is convicted of or receives a youthful offender
or juvenile adjudication for an offense consisting of operating a motor vehicle
under the influence of intoxicating liquor where the conviction, or youthful
offender or other juvenile adjudication was had outside this state, where such
person was under the age of twenty-one at the time of commission of such
violation and has previously been found to have operated a motor vehicle after
having consumed alcohol in violation of section eleven hundred ninety-two-a of
this article, or has previously been convicted of, or adjudicated a youthful
offender for, any violation of section eleven hundred ninety-two of this article
not arising out of the same incident, or has previously been convicted of or
received a youthful offender or juvenile adjudication for an offense consisting
of operating a motor vehicle under the influence of intoxicating liquor when the
conviction, or youthful offender or other juvenile adjudication was had outside
this state and not arising out of the same.
(8) Out-of-state offenses. Except as provided in
subparagraph six or seven of this paragraph: (i) ninety days, where the holder
is convicted of an offense consisting of operating a motor vehicle under the
influence of intoxicating liquor where the conviction was had outside this state
and (ii) six months, where the holder is convicted of, or receives a youthful
offender or other juvenile adjudication, which would have been a misdemeanor or
felony if committed by an adult, in connection with, an offense consisting of
operating a motor vehicle under the influence of or while impaired by the use of
drugs where the conviction or youthful offender or other juvenile adjudication
was had outside this state.
(continued...)
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Sec. 1227. Consumption or possession of alcoholic beverages in certain motor vehicles.
1. The drinking of alcoholic beverages, or the possession of an open
container containing an alcoholic beverage, in a motor vehicle located upon the
public highways or right-of-way public highway is prohibited. Any operator or
passenger violating this section shall be guilty of a traffic infraction. The
provisions of this section shall not be deemed to prohibit the drinking of
alcoholic beverages or the possession of an open container containing an
alcoholic beverage by passengers in passenger vehicles operated pursuant to a
certificate or permit issued by the department of transportation or the United
States department of transportation. Furthermore, the provisions of this section
shall not be deemed to prohibit the possession of wine which is: (a) resealed in
accordance with the provisions of subdivision four of section eighty-one of the
alcoholic beverage control law; and (b) is transported in the vehicle's trunk or
is transported behind the last upright seat or in an area not normally occupied
by the driver or passenger in a motor vehicle that is not equipped with a
trunk.
2. For the purposes of this section, a passenger vehicle shall mean a vehicle designed to carry ten or more passengers and used to carry passengers for profit or hire.
