S T A T E O F N E W Y O R K ________________________________________________________________________ 6490 2013-2014 Regular Sessions I N A S S E M B L Y April 4, 2013 ___________ Introduced by M. of A. CUSICK -- read once and referred to the Committee on Transportation AN ACT to amend the vehicle and traffic law and the penal law, in relation to driving while intoxicated THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraph (c) of subdivision 1 of section 1193 of the vehi- 2 cle and traffic law is amended by adding a new subparagraph (iv) to read 3 as follows: 4 (IV) IN CALCULATING THE TEN YEAR PERIOD UNDER ITEM (I) OF CLAUSE B OF 5 SUBPARAGRAPH THREE OF PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION, 6 ANY PERIOD OF TIME DURING WHICH THE PERSON WAS INCARCERATED FOR ANY 7 REASON BETWEEN THE TIME OF COMMISSION OF THE PREVIOUS VIOLATION OF 8 SUBDIVISION TWO, TWO-A, THREE, FOUR OR FOUR-A OF SECTION ELEVEN HUNDRED 9 NINETY-TWO OF THIS ARTICLE OR OF VEHICULAR ASSAULT IN THE SECOND OR 10 FIRST DEGREE, AS DEFINED, RESPECTIVELY, IN SECTIONS 120.03 AND 120.04 11 AND AGGRAVATED VEHICULAR ASSAULT AS DEFINED IN SECTION 120.04-A OF THE 12 PENAL LAW OR OF VEHICULAR MANSLAUGHTER IN THE SECOND OR FIRST DEGREE, AS 13 DEFINED, RESPECTIVELY, IN SECTIONS 125.12 AND 125.13 AND AGGRAVATED 14 VEHICULAR HOMICIDE AS DEFINED IN SECTION 125.14 OF SUCH LAW, AND THE 15 TIME OF COMMISSION OF THE PRESENT OFFENSE SHALL BE EXCLUDED AND SUCH TEN 16 YEAR PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME 17 SERVED UNDER SUCH INCARCERATION. 18 S 2. Subdivision 1-a of section 1193 of the vehicle and traffic law, 19 as added by chapter 691 of the laws of 2002, paragraph (c) as amended by 20 chapter 669 of the laws of 2007, paragraph (d) as added by chapter 732 21 of the laws of 2006, is amended to read as follows: 22 1-a. Additional penalties. (a) Except as provided for in [paragraph] 23 PARAGRAPHS (A-1), (b) AND (B-1) of this subdivision, a person who oper- 24 ates a vehicle in violation of subdivision two [or], TWO-A, three, FOUR 25 OR FOUR-A of section eleven hundred ninety-two of this article after EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01331-01-3 A. 6490 2 1 having been convicted of a violation of subdivision two [or], TWO-A, 2 three, FOUR OR FOUR-A of such section within the preceding [five] TEN 3 years shall, in addition to any other penalties which may be imposed 4 pursuant to subdivision one of this section, be sentenced to a term of 5 imprisonment of [five] NOT LESS THAN THIRTY days [or, as an alternative 6 to such imprisonment, be required to perform thirty days of service for 7 a public or not-for-profit corporation, association, institution or 8 agency as set forth in paragraph (h) of subdivision two of section 65.10 9 of the penal law as a condition of sentencing for such violation]. 10 Notwithstanding the provisions of this paragraph, a sentence of a term 11 of imprisonment of [five] THIRTY days or more pursuant to the provisions 12 of subdivision one of this section shall be deemed to be in compliance 13 with this subdivision. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE 14 CONSTRUED TO LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDI- 15 TIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR REVOCATION OR SCREENING 16 OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. 17 (A-1) A PERSON WHO OPERATES A VEHICLE IN VIOLATION OF SUBDIVISION 18 TWO-A OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AFTER HAVING 19 BEEN CONVICTED OF A VIOLATION OF SUCH SUBDIVISION WITHIN THE PRECEDING 20 TEN YEARS SHALL, IN ADDITION TO ANY PENALTIES WHICH MAY BE IMPOSED 21 PURSUANT TO SUBDIVISION ONE OF THIS SECTION, BE SENTENCED TO A TERM OF 22 IMPRISONMENT OF NOT LESS THAN ONE HUNDRED EIGHTY DAYS. NOTHING 23 CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT OR PROHIBIT A 24 COURT FROM IMPOSING ANY OTHER ADDITIONAL PENALTY, CONDITION, LICENSE 25 SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY 26 KIND REQUIRED OR PERMITTED BY LAW. 27 (b) [A] EXCEPT AS PROVIDED IN PARAGRAPH (B-1) OF THIS SUBDIVISION, A 28 person who operates a vehicle in violation of subdivision two [or], 29 TWO-A, three, FOUR OR FOUR-A of section eleven hundred ninety-two of 30 this article after having been convicted on two or more occasions of a 31 violation of [any of such subdivisions] SUBDIVISION TWO, TWO-A, THREE, 32 FOUR OR FOUR-A OF SUCH SECTION within the preceding [five] TEN years 33 shall, in addition to any other penalties which may be imposed pursuant 34 to subdivision one of this section, be sentenced to a term of imprison- 35 ment of [ten] NOT LESS THAN NINETY days [or, as an alternative to such 36 imprisonment, be required to perform sixty days of service for a public 37 or not-for-profit corporation, association, institution or agency as set 38 forth in paragraph (h) of subdivision two of section 65.10 of the penal 39 law as a condition of sentencing for such violation]. Notwithstanding 40 the provisions of this paragraph, a sentence of a term of imprisonment 41 of [ten] NINETY days or more pursuant to the provisions of subdivision 42 one of this section shall be deemed to be in compliance with this subdi- 43 vision. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT 44 OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDITIONAL PENALTY, CONDI- 45 TION, LICENSE SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT OF 46 SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. 47 (B-1) A PERSON WHO OPERATES A VEHICLE IN VIOLATION OF SUBDIVISION 48 TWO-A OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AFTER HAVING 49 BEEN CONVICTED OF TWO OR MORE VIOLATIONS OF SUCH SUBDIVISION WITHIN THE 50 PRECEDING TEN YEARS SHALL, IN ADDITION TO ANY PENALTIES WHICH MAY BE 51 IMPOSED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, BE SENTENCED TO A 52 TERM OF IMPRISONMENT OF NOT LESS THAN ONE YEAR. NOTHING CONTAINED IN 53 THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT OR PROHIBIT A COURT FROM 54 IMPOSING ANY OTHER ADDITIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR 55 REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED 56 OR PERMITTED BY LAW. A. 6490 3 1 (c) A court sentencing a person WHO HAS BEEN CONVICTED OF OPERATING A 2 VEHICLE IN VIOLATION OF SUBDIVISION TWO, TWO-A, THREE OR AN ALCOHOL-RE- 3 LATED VIOLATION OF SUBDIVISION FOUR-A OF SECTION ELEVEN HUNDRED NINETY- 4 TWO OF THIS ARTICLE pursuant to paragraph (a) [or], (A-1), (b) OR (B-1) 5 of this subdivision shall: (i) order the installation of an ignition 6 interlock device approved pursuant to section eleven hundred ninety- 7 eight of this article in any motor vehicle owned or operated by the 8 person so sentenced. Such devices shall remain installed during any 9 period of license revocation required to be imposed pursuant to para- 10 graph (b) of subdivision two of this section, and, upon the termination 11 of such revocation period, for an additional period as determined by the 12 court; and (ii) order that such person receive an assessment of the 13 degree of their alcohol or substance abuse and dependency pursuant to 14 the provisions of section eleven hundred ninety-eight-a of this article. 15 Where such assessment indicates the need for treatment, such court is 16 authorized to impose treatment as a condition of such sentence except 17 that such court shall impose treatment as a condition of a sentence of 18 probation or conditional discharge pursuant to the provisions of subdi- 19 vision three of section eleven hundred ninety-eight-a of this article. 20 Any person ordered to install an ignition interlock device pursuant to 21 this paragraph shall be subject to the provisions of subdivisions four, 22 five, seven, eight and nine of section eleven hundred ninety-eight of 23 this article. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO 24 LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDITIONAL PENALTY, 25 CONDITION, LICENSE SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT 26 OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. 27 (d) Confidentiality of records. The provisions of subdivision six of 28 section eleven hundred ninety-eight-a of this article shall apply to the 29 records and content of all assessments and treatment conducted pursuant 30 to this subdivision. 31 (E) IN CALCULATING THE TEN YEAR PERIOD UNDER PARAGRAPHS (A), (A-1), 32 (B) AND (B-1) OF THIS SUBDIVISION, ANY PERIOD OF TIME DURING WHICH THE 33 PERSON WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF 34 THE PREVIOUS VIOLATION OF SUBDIVISION TWO, TWO-A, THREE, FOUR OR FOUR-A 35 OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AND THE TIME OF 36 COMMISSION OF THE PRESENT OFFENSE SHALL BE EXCLUDED AND SUCH TEN YEAR 37 PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED 38 UNDER SUCH INCARCERATION. 39 S 3. Paragraph (a) of subdivision 1 of section 70.06 of the penal law, 40 as amended by chapter 410 of the laws of 1979, is amended to read as 41 follows: 42 (a) A second felony offender is a person, other than a second violent 43 felony offender as defined in section 70.04, who stands convicted of a 44 felony [defined in this chapter], other than a class A-I felony, after 45 having previously been subjected to one or more predicate felony 46 convictions as defined in paragraph (b) of this subdivision. 47 S 4. This act shall take effect on the first of November next succeed- 48 ing the date on which it shall have become a law.