Bill Text: NY A02803 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the general municipal law, in relation to reimbursement of municipal cost and expense incurred by motor vehicle drivers under the influence of alcohol and/or controlled substances
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced - Dead) 2010-05-11 - held for consideration in alcoholism and drug abuse [A02803 Detail]
Download: New_York-2009-A02803-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 2803 2009-2010 Regular Sessions I N A S S E M B L Y January 21, 2009 ___________ Introduced by M. of A. KOLB, WALKER, McKEVITT, ERRIGO -- Multi-Sponsored by -- M. of A. CORWIN, QUINN -- read once and referred to the Commit- tee on Alcoholism and Drug Abuse AN ACT to amend the general municipal law, in relation to reimbursement of municipal cost and expense incurred by motor vehicle drivers under the influence of alcohol and/or controlled substances THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The general municipal law is amended by adding a new arti- 2 cle 17-A to read as follows: 3 ARTICLE 17-A 4 REIMBURSEMENT OF MUNICIPAL EXPENSE BY DRIVERS 5 OF MOTOR VEHICLES UNDER THE INFLUENCE OF 6 ALCOHOL AND/OR A CONTROLLED SUBSTANCE 7 SECTION 725. SHORT TITLE; PURPOSE OF ARTICLE. 8 726. DEFINITIONS. 9 727. LOCAL LAWS AND ORDINANCES. 10 728. STANDARD OF IMPAIRMENT; TESTING METHODS. 11 729. PRESUMPTION WITH RESPECT TO CAUSAL CONNECTION. 12 730. ADDITIONAL PRESUMPTION OF IMPAIRMENT. 13 731. DAMAGES. 14 732. ATTORNEY'S FEES, COURT COSTS AND EXPENSES; RECOVERY. 15 733. SEVERABILITY. 16 S 725. SHORT TITLE; PURPOSE OF ARTICLE. THIS ARTICLE SHALL BE KNOWN 17 AND MAY BE CITED AS THE "ALCOHOL AND CONTROLLED SUBSTANCE EXPENSE RECOV- 18 ERY ACT". THE LEGISLATURE HEREBY DECLARES THAT A HIGH PERCENTAGE OF 19 AUTOMOBILE ACCIDENTS ARE RELATED TO THE USE OF ALCOHOL AND CONTROLLED 20 SUBSTANCES AND, IN ADDITION TO THE TERRIBLE LOSSES SUFFERED BY THE FAMI- 21 LIES AND LOVED ONES OF INJURED PARTIES, THE COMMUNITY ITSELF SUFFERS 22 SERIOUS FINANCIAL BURDENS BY BEING OBLIGED TO RESPOND TO THE SCENES OF 23 SUCH ACCIDENTS. SINCE THERE WOULD APPEAR TO BE NO REASON WHY THOSE CAUS- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05050-01-9 A. 2803 2 1 ING OR CONTRIBUTING TO SUCH ACCIDENTS WHEN USING ALCOHOLIC BEVERAGES OR 2 CONTROLLED SUBSTANCES SHOULD NOT SUFFER THE ECONOMIC BURDEN CREATED BY 3 ANY SUCH ACCIDENT AND THE ADDITIONAL ECONOMIC BURDEN OF RECOVERING THE 4 COSTS AND EXPENSES INCIDENT THERETO, IT IS THE DETERMINATION OF THIS 5 LEGISLATURE THAT THE PASSAGE OF THIS ARTICLE IS REQUIRED IN ORDER TO 6 ALLOW THE MORE EQUITABLE DISTRIBUTION OF THE COST AND EXPENSE IMPOSED BY 7 SUCH ANTISOCIAL CONDUCT. 8 S 726. DEFINITIONS. THE FOLLOWING TERMS SHALL HAVE THE MEANINGS HERE- 9 INAFTER SET FORTH, RESPECTIVELY: 10 1. "CONTROLLED SUBSTANCES" SHALL MEAN AND INCLUDE ANY SUBSTANCE NAMED 11 OR DESCRIBED AS SUCH IN TITLE ONE OF ARTICLE THIRTY-THREE OF THE PUBLIC 12 HEALTH LAW. 13 2. "COSTS AND EXPENSES OF EMERGENCY RESPONSES" SHALL MEAN AND INCLUDE, 14 BUT NOT BE LIMITED TO, ALL COSTS OF LABOR, MEDICAL MATERIALS, MEDICAL 15 EQUIPMENT, POLICE EQUIPMENT, FIRE EQUIPMENT, AND ADMINISTRATIVE EXPENSES 16 ASSOCIATED THEREWITH, WHICH SHALL BE EXPENDED, USED, ASSOCIATED WITH, 17 OCCASIONED BY OR CONNECTED WITH ANY EMERGENCY MEDICAL, FIRE OR POLICE 18 RESPONSE AND, FOR THE PURPOSES HEREOF, THE COSTS OF EMERGENCY MEDICAL, 19 FIRE AND POLICE MANPOWER SERVICES SHALL BE AS SET FORTH ON SUCH SCHED- 20 ULES AS A MUNICIPALITY MAY ADOPT, FROM TIME TO TIME, BY RESOLUTION 21 PURSUANT TO THIS ARTICLE. 22 S 727. LOCAL LAWS AND ORDINANCES. NOTWITHSTANDING ANY OTHER PROVISION 23 OF LAW TO THE CONTRARY AND SUBJECT TO THE PROVISIONS OF THIS ARTICLE, 24 ANY CITY, COUNTY, TOWN OR VILLAGE IN THIS STATE, ACTING THROUGH ITS 25 LOCAL LEGISLATIVE BODY, IS HEREBY AUTHORIZED AND EMPOWERED TO ADOPT AND 26 AMEND EITHER A LOCAL LAW OR AN ORDINANCE PROVIDING FOR THE RECOVERY BY 27 SUCH MUNICIPALITY OF ANY COST OR EXPENSE INCURRED OR EXPENDED BY IT AS 28 THE RESULT OF THE OPERATION OF A MOTOR VEHICLE WITHIN SUCH MUNICIPALITY 29 BY AN INDIVIDUAL WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR 30 CONTROLLED SUBSTANCES OR A COMBINATION OF ALCOHOLIC BEVERAGES AND 31 CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES ARE 32 IMPAIRED OR TO THE EXTENT THAT HE OR SHE IS DEPRIVED OF FULL POSSESSION 33 OF HIS OR HER NORMAL FACULTIES AND, IF SUCH PERSON SHALL PROXIMATELY 34 CAUSE AN ACCIDENT OR IS A SUBSTANTIAL CAUSATIVE FACTOR OF AN ACCIDENT 35 RESULTING IN THE NEED FOR SUCH MUNICIPALITY TO PROVIDE EMERGENCY 36 MEDICAL, FIRE OR POLICE RESPONSES OR SERVICES, SUCH PERSON SHALL BE 37 LIABLE TO SUCH MUNICIPALITY FOR ALL COSTS AND EXPENSES OF SUCH EMERGENCY 38 RESPONSES AND SERVICES. 39 S 728. STANDARD OF IMPAIRMENT; TESTING METHODS. 1. IN ANY TRIAL OF 40 ANY CIVIL ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT OF ANY 41 LOCAL LAW OR ORDINANCE PASSED PURSUANT HERETO ALLEGING THAT ANY PERSON 42 IS LIABLE TO SUCH MUNICIPALITY BECAUSE SUCH PERSON WAS THE CAUSE OF OR 43 WAS A SUBSTANTIAL CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING EMERGENCY 44 MEDICAL, FIRE OR POLICE RESPONSES WHILE SUCH PERSON WAS DRIVING OR IN 45 ACTUAL PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE OF ALCO- 46 HOLIC BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC 47 BEVERAGES AND CONTROLLED SUBSTANCES, TO THE EXTENT THAT HIS OR HER 48 NORMAL FACULTIES WERE IMPAIRED, OR TO THE EXTENT THAT HE OR SHE WAS 49 DEPRIVED OF FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, THE RESULTS 50 OF ANY TEST ADMINISTERED IN ACCORDANCE WITH ARTICLE THIRTY-ONE OF THE 51 VEHICLE AND TRAFFIC LAW SHALL BE ADMISSIBLE INTO EVIDENCE WHEN OTHERWISE 52 ADMISSIBLE, AND THE AMOUNT OF ALCOHOL OR CONTROLLED SUBSTANCE IN THE 53 PERSON'S BLOOD AT THE TIME ALLEGED, AS SHOWN BY CHEMICAL ANALYSIS OF THE 54 PERSON'S BLOOD OR BREATH OR URINE, SHALL GIVE RISE TO THE FOLLOWING 55 PRESUMPTIONS: A. 2803 3 1 A. IF THERE WAS, AT THE TIME, 0.05 PERCENT OR LESS BY WEIGHT OF ALCO- 2 HOL IN THE PERSON'S BLOOD, AND IF THERE WAS NO EVIDENCE OF A CONTROLLED 3 SUBSTANCE IN SUCH PERSON'S BLOOD, IT SHALL BE PRESUMED THAT THE PERSON 4 WAS NOT UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR CONTROLLED 5 SUBSTANCES OR ANY COMBINATION THEREOF TO THE EXTENT THAT HIS OR HER 6 NORMAL FACULTIES WERE IMPAIRED. 7 B. IF THERE WAS, AT THE TIME, IN EXCESS OF 0.05 PERCENT BUT LESS THAN 8 0.08 PERCENT BY WEIGHT OF ALCOHOL IN THE PERSON'S BLOOD SUCH FACTS SHALL 9 NOT GIVE RISE TO ANY PRESUMPTION THAT THE PERSON WAS OR WAS NOT UNDER 10 THE INFLUENCE OF ALCOHOLIC BEVERAGES OR CONTROLLED SUBSTANCES OR A 11 COMBINATION THEREOF TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES WERE 12 IMPAIRED, BUT SUCH FACT MAY BE CONSIDERED WITH OTHER COMPETENT EVIDENCE 13 IN DETERMINING WHETHER THE PERSON WAS UNDER THE INFLUENCE OF ALCOHOLIC 14 BEVERAGES OR CONTROLLED SUBSTANCES OR ANY COMBINATION THEREOF TO THE 15 EXTENT THAT HIS OR HER NORMAL FACULTIES WERE IMPAIRED. 16 C. IF THERE WAS, AT THE TIME, 0.08 PERCENT OR MORE BY WEIGHT OF ALCO- 17 HOL IN THE PERSON'S BLOOD, EVEN IF THERE WAS NO EVIDENCE OF A CONTROLLED 18 SUBSTANCE IN SUCH PERSON'S BLOOD, SUCH FACT SHALL BE PRIMA FACIE 19 EVIDENCE THAT THE PERSON WAS UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES 20 TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES WERE IMPAIRED. 21 D. IF THERE WAS, AT THE TIME, IN EXCESS OF 0.05 PERCENT BY WEIGHT OF 22 ALCOHOL IN THE PERSON'S BLOOD AND EVIDENCE OF A CONTROLLED SUBSTANCE IN 23 THE PERSON'S BLOOD, SUCH FACTS SHALL BE PRIMA FACIE EVIDENCE THAT THE 24 PERSON WAS UNDER THE INFLUENCE OF A COMBINATION OF ALCOHOLIC BEVERAGES 25 AND CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES 26 WERE IMPAIRED. 27 2. THE PERCENT BY WEIGHT OF ALCOHOL IN THE BLOOD SHALL BE BASED UPON 28 GRAMS OF ALCOHOL PER 100 MILLILITERS OF BLOOD. 29 3. THE FOREGOING PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED AS 30 LIMITING THE INTRODUCTION OF OTHER COMPETENT EVIDENCE BEARING UPON THE 31 QUESTION OF WHETHER THE PERSON WAS UNDER THE INFLUENCE OF ALCOHOLIC 32 BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC BEVER- 33 AGES AND CONTROLLED SUBSTANCES, EITHER TO THE EXTENT THAT HIS OR HER 34 NORMAL FACULTIES WERE IMPAIRED OR TO THE EXTENT THAT HE OR SHE WAS 35 DEPRIVED OF FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, OR THAT SUCH 36 IMPAIRMENT WAS THE PROXIMATE CAUSE OR SUBSTANTIALLY CAUSATIVE OF THE 37 ACCIDENT GIVING RISE TO THE NEED FOR EMERGENCY MEDICAL, POLICE OR FIRE 38 SERVICES. 39 4. A CHEMICAL ANALYSIS OF A PERSON'S BLOOD TO DETERMINE ALCOHOLIC 40 CONTENT, A CHEMICAL ANALYSIS OF A PERSON'S BREATH OR A CHEMICAL ANALYSIS 41 OF A PERSON'S URINE, IN ORDER TO BE CONSIDERED VALID UNDER THE 42 PROVISIONS OF THIS SECTION, MUST HAVE BEEN PERFORMED SUBSTANTIALLY IN 43 ACCORDANCE WITH THE METHOD SET FORTH IN ARTICLE THIRTY-ONE OF THE VEHI- 44 CLE AND TRAFFIC LAW. ANY INSUBSTANTIAL DIFFERENCES BETWEEN APPROVED 45 TECHNIQUES AND ACTUAL TESTING PROCEDURES IN ANY INDIVIDUAL CASE SHALL 46 NOT RENDER THE TEST OR TEST RESULTS INVALID. ANY TECHNIQUE OR METHOD 47 APPROVED BY THE DEPARTMENT OF HEALTH WITH RESPECT TO SUCH ANALYSIS SHALL 48 BE DEEMED ACCEPTABLE. ANY PERSON WHO SHALL BE DEEMED QUALIFIED AND 49 COMPETENT TO CONDUCT SUCH ANALYSIS BY THE DEPARTMENT OF HEALTH SHALL BE 50 DEEMED COMPETENT TO CONDUCT SUCH ANALYSIS. 51 S 729. PRESUMPTION WITH RESPECT TO CAUSAL CONNECTION. IN ANY TRIAL OF 52 ANY CIVIL ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT HEREOF 53 ALLEGING THAT ANY PERSON IS LIABLE HEREUNDER BECAUSE SUCH PERSON WAS THE 54 CAUSE OF OR WAS A SUBSTANTIAL CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING 55 EMERGENCY MEDICAL, FIRE OR POLICE RESPONSES WHILE SUCH PERSON WAS DRIV- 56 ING OR IN ACTUAL PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE A. 2803 4 1 OF ALCOHOLIC BEVERAGES OR CONTROLLED SUBSTANCES, OR A COMBINATION OF 2 ALCOHOLIC BEVERAGES AND CONTROLLED SUBSTANCES, TO THE EXTENT THAT HIS OR 3 HER NORMAL FACULTIES WERE IMPAIRED OR THAT HE OR SHE WAS DEPRIVED OF 4 FULL POSSESSION OF HIS OR HER NORMAL FACULTIES, IT SHALL BE PRESUMED 5 THAT A PERSON UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES AND/OR 6 CONTROLLED SUBSTANCES TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES 7 WERE IMPAIRED, OR TO THE EXTENT THAT HE OR SHE WAS DEPRIVED OF FULL 8 POSSESSION OF HIS OR HER NORMAL FACULTIES, WAS THE PROXIMATE CAUSE OR 9 WAS A SUBSTANTIAL CAUSATIVE FACTOR OF THE ACCIDENT GIVING RISE TO THE 10 NEED FOR EMERGENCY MEDICAL, POLICE AND FIRE SERVICES. 11 S 730. ADDITIONAL PRESUMPTION OF IMPAIRMENT. IN ANY TRIAL OF ANY CIVIL 12 ACTION OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT OF ANY LOCAL LAW OR 13 ORDINANCE PASSED PURSUANT HERETO ALLEGING THAT ANY PERSON IS LIABLE TO 14 SUCH MUNICIPALITY BECAUSE SUCH PERSON WAS THE CAUSE OF OR WAS A SUBSTAN- 15 TIAL CAUSATIVE FACTOR OF AN ACCIDENT REQUIRING EMERGENCY MEDICAL, FIRE 16 OR POLICE RESPONSES WHILE SUCH PERSON WAS DRIVING OR IN ACTUAL PHYSICAL 17 CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR 18 CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC BEVERAGES AND 19 CONTROLLED SUBSTANCES, TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES 20 WERE IMPAIRED OR THAT HE OR SHE WAS DEPRIVED OF FULL POSSESSION OF HIS 21 OR HER NORMAL FACULTIES, IT SHALL BE PRESUMED THAT SUCH PERSON'S NORMAL 22 FACULTIES WERE IMPAIRED OR THAT SUCH PERSON WAS DEPRIVED OF FULL 23 POSSESSION OF HIS OR HER NORMAL FACULTIES IF SUCH PERSON SHALL PLEAD 24 GUILTY TO OR SHALL HAVE BEEN FOUND GUILTY AFTER TRIAL OF A VIOLATION OF 25 SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW OR IF 26 SUCH PERSON REFUSES AN OFFICER'S REQUEST TO SUBMIT TO ANY BREATH, BLOOD 27 OR URINE TEST PROVIDED IN SECTION ELEVEN HUNDRED NINETY-FOUR OF THE 28 VEHICLE AND TRAFFIC LAW AND SUCH OFFICER SHALL HAVE SUBMITTED A SWORN 29 STATEMENT THAT HE HAD REASONABLE CAUSE TO BELIEVE THE PERSON HAD BEEN 30 DRIVING OR HAD BEEN IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE WITHIN 31 SUCH MUNICIPALITY WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES OR 32 CONTROLLED SUBSTANCES, OR A COMBINATION OF ALCOHOLIC BEVERAGES AND 33 CONTROLLED SUBSTANCES, AND THAT SUCH PERSON HAD REFUSED TO SUBMIT TO THE 34 TEST OR TESTS AFTER BEING REQUESTED TO DO SO BY THE OFFICER. 35 S 731. DAMAGES. EVERY MUNICIPALITY ADOPTING A LOCAL LAW OR ORDINANCE 36 PURSUANT TO THIS ARTICLE SHALL DEVELOP AND KEEP CURRENT A SCHEDULE OF 37 SUCH EMERGENCY COSTS AND EXPENSES LIKELY TO BE INCURRED OR EXPENDED AS A 38 RESULT OF SUCH AN ALCOHOL OR CONTROLLED SUBSTANCE RELATED ACCIDENT 39 SETTING FORTH THE COST AND VALUE OF TIME AND SERVICES, AS WELL AS MATE- 40 RIALS, PROVIDED IN EMERGENCY SITUATIONS AS CONTEMPLATED BY THIS ARTICLE. 41 S 732. ATTORNEY'S FEES, COURT COSTS AND EXPENSES; RECOVERY. IN ANY 42 TRIAL OR ANY CIVIL ACTION OR PROCEEDING ARISING IN THE ENFORCEMENT OF 43 ANY LOCAL LAW OR ORDINANCE PASSED PURSUANT HERETO, THE MUNICIPALITY 44 INVOLVED SHALL BE ENTITLED TO RECOVER ALL COURT COSTS, EXPENSES AND 45 ATTORNEY'S FEES INCURRED BY SUCH MUNICIPALITY IN SUCH DISPUTE AND SUCH 46 RIGHT SHALL INCLUDE ALL OF SUCH COSTS, EXPENSES AND ATTORNEY'S FEES 47 THROUGH ALL APPEALS OR OTHER ACTIONS. 48 S 733. SEVERABILITY. IF ANY SECTION, SUBDIVISION, PARAGRAPH, SENTENCE, 49 CLAUSE, PHRASE OR PORTION OF THIS ARTICLE IS FOR ANY REASON HELD INVALID 50 OR UNCONSTITUTIONAL BY ANY COURT OF COMPETENT JURISDICTION, SUCH PORTION 51 SHALL BE DEEMED A SEPARATE, DISTINCT AND INDEPENDENT PROVISION AND SUCH 52 HOLDING SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS 53 ARTICLE. 54 S 2. This act shall take effect immediately.