Bill Text: NY A07072 | 2023-2024 | General Assembly | Introduced

---

Bill Title: Amends provisions involving the arrest, prosecution, sentencing and penalties for offenses involving vehicular assault, manslaughter and homicide; removes certain barriers to prosecution for operating a vehicle under the influence of drugs or alcohol.

Spectrum: Moderate Partisan Bill (Republican 15-3)

Status: (Introduced) 2024-01-03 - referred to codes [A07072 Detail]

Download: New_York-2023-A07072-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          7072

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      May 10, 2023
                                       ___________

        Introduced  by  M.  of  A. J. A. GIGLIO -- read once and referred to the
          Committee on Codes

        AN ACT to amend the penal law, the vehicle and traffic law and the crim-
          inal procedure law, in relation to arrest, prosecution, sentencing and
          penalties for offenses involving vehicular assault,  manslaughter  and
          homicide and operating a vehicle under the influence of drugs or alco-
          hol

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. This act shall be known and may be cited as "Andrew's law".
     2    § 2. Subdivision 1 of section 70.02 of the penal  law,  as  separately
     3  amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
     4  amended by chapter 189 of the laws of 2018, paragraph (b) as amended  by
     5  chapter  94 of the laws of 2020, paragraph (c) as amended by chapter 134
     6  of the laws of 2019, and paragraph (d) as amended by chapter  7  of  the
     7  laws of 2007, is amended to read as follows:
     8    1. Definition of a violent felony offense. A violent felony offense is
     9  a  class  B  violent felony offense, a class C violent felony offense, a
    10  class D violent felony offense, or a class  E  violent  felony  offense,
    11  defined as follows:
    12    (a)  Class  B  violent felony offenses: an attempt to commit the class
    13  A-I felonies of murder in  the  second  degree  as  defined  in  section
    14  125.25, kidnapping in the first degree as defined in section 135.25, and
    15  arson  in  the  first  degree  as  defined in section 150.20; aggravated
    16  vehicular homicide as defined in section  125.14,  manslaughter  in  the
    17  first  degree  as  defined in section 125.20, aggravated manslaughter in
    18  the first degree as defined in section 125.22, rape in the first  degree
    19  as defined in section 130.35, criminal sexual act in the first degree as
    20  defined  in  section 130.50, aggravated sexual abuse in the first degree
    21  as defined in section 130.70, course of sexual conduct against  a  child
    22  in  the  first degree as defined in section 130.75; assault in the first

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11071-01-3
        A. 7072                             2

     1  degree as defined in section 120.10, kidnapping in the second degree  as
     2  defined  in  section  135.20, burglary in the first degree as defined in
     3  section 140.30, arson in the second degree as defined in section 150.15,
     4  robbery  in the first degree as defined in section 160.15, sex traffick-
     5  ing as defined in paragraphs (a) and (b) of subdivision five of  section
     6  230.34,  sex  trafficking  of  a  child  as defined in section 230.34-a,
     7  incest in the first  degree  as  defined  in  section  255.27,  criminal
     8  possession of a weapon in the first degree as defined in section 265.04,
     9  criminal  use  of  a  firearm  in the first degree as defined in section
    10  265.09, criminal sale of a firearm in the first  degree  as  defined  in
    11  section  265.13,  aggravated  assault  upon  a police officer or a peace
    12  officer as defined in section 120.11, gang assault in the  first  degree
    13  as  defined  in  section 120.07, intimidating a victim or witness in the
    14  first degree as defined in  section  215.17,  hindering  prosecution  of
    15  terrorism  in  the  first  degree as defined in section 490.35, criminal
    16  possession of a chemical weapon  or  biological  weapon  in  the  second
    17  degree  as  defined  in  section  490.40, and criminal use of a chemical
    18  weapon or biological weapon in the third degree as  defined  in  section
    19  490.47.
    20    (b)  Class  C violent felony offenses: an attempt to commit any of the
    21  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
    22  vated criminally negligent homicide as defined in section 125.11, vehic-
    23  ular  manslaughter  in  the  first  degree as defined in section 125.13,
    24  aggravated manslaughter in the  second  degree  as  defined  in  section
    25  125.21,  aggravated  sexual  abuse  in  the  second degree as defined in
    26  section 130.67, aggravated  vehicular  assault  as  defined  in  section
    27  120.04-a,  assault  on  a  peace officer, police officer, firefighter or
    28  emergency medical services professional as defined  in  section  120.08,
    29  assault  on  a  judge  as defined in section 120.09, gang assault in the
    30  second degree as defined in section 120.06, strangulation in  the  first
    31  degree as defined in section 121.13, aggravated strangulation as defined
    32  in section 121.13-a, burglary in the second degree as defined in section
    33  140.25, robbery in the second degree as defined in section 160.10, crim-
    34  inal  possession  of a weapon in the second degree as defined in section
    35  265.03, criminal use of a firearm in the second  degree  as  defined  in
    36  section  265.08,  criminal  sale  of  a  firearm in the second degree as
    37  defined in section 265.12, criminal sale of a firearm with the aid of  a
    38  minor  as defined in section 265.14, aggravated criminal possession of a
    39  weapon as defined in section 265.19, soliciting or providing support for
    40  an act of terrorism in the first degree as defined  in  section  490.15,
    41  hindering  prosecution  of  terrorism in the second degree as defined in
    42  section 490.30, and criminal possession of a chemical weapon or  biolog-
    43  ical weapon in the third degree as defined in section 490.37.
    44    (c)  Class  D violent felony offenses: an attempt to commit any of the
    45  class C felonies set forth in paragraph (b) of this  subdivision;  reck-
    46  less  assault of a child as defined in section 120.02, vehicular assault
    47  in the first degree as defined in section 120.04, assault in the  second
    48  degree  as defined in section 120.05, menacing a police officer or peace
    49  officer as defined in section 120.18, stalking in the first degree[,] as
    50  defined in subdivision one  of  section  120.60,  strangulation  in  the
    51  second  degree  as  defined in section 121.12, vehicular manslaughter in
    52  the second degree as defined in  section  125.12,  rape  in  the  second
    53  degree  as  defined in section 130.30, criminal sexual act in the second
    54  degree as defined in section 130.45, sexual abuse in the first degree as
    55  defined in section 130.65, course of sexual conduct against a  child  in
    56  the  second degree as defined in section 130.80, aggravated sexual abuse
        A. 7072                             3

     1  in the third degree as defined in section  130.66,  facilitating  a  sex
     2  offense  with a controlled substance as defined in section 130.90, labor
     3  trafficking as defined in paragraphs (a) and (b) of subdivision three of
     4  section  135.35,  criminal possession of a weapon in the third degree as
     5  defined in subdivision five, six, seven, eight, nine or ten  of  section
     6  265.02,  criminal  sale  of  a firearm in the third degree as defined in
     7  section 265.11, intimidating a victim or witness in the second degree as
     8  defined in section 215.16, soliciting or providing support for an act of
     9  terrorism in the second degree as defined in section 490.10, and  making
    10  a  terroristic threat as defined in section 490.20, falsely reporting an
    11  incident in the first degree as defined in  section  240.60,  placing  a
    12  false  bomb  or  hazardous  substance  in the first degree as defined in
    13  section 240.62, placing a false bomb or hazardous substance in a  sports
    14  stadium or arena, mass transportation facility or enclosed shopping mall
    15  as defined in section 240.63, aggravated unpermitted use of indoor pyro-
    16  technics  in the first degree as defined in section 405.18, and criminal
    17  manufacture, sale, or transport of an  undetectable  firearm,  rifle  or
    18  shotgun as defined in section 265.50.
    19    (d)  Class  E violent felony offenses: an attempt to commit any of the
    20  felonies of criminal possession of a  weapon  in  the  third  degree  as
    21  defined  in subdivision five, six, seven or eight of section 265.02 as a
    22  lesser included offense of that section as defined in section 220.20  of
    23  the  criminal  procedure  law, vehicular assault in the second degree as
    24  defined in section 120.03, persistent sexual abuse as defined in section
    25  130.53, aggravated sexual abuse in  the  fourth  degree  as  defined  in
    26  section  130.65-a, falsely reporting an incident in the second degree as
    27  defined in  section  240.55  and  placing  a  false  bomb  or  hazardous
    28  substance in the second degree as defined in section 240.61.
    29    §  3.  Subdivision 2 of section 70.25 of the penal law, as  amended by
    30  chapter 56 of the laws of 1984, is amended to read as follows:
    31    2. (a) When more than one sentence of imprisonment  is  imposed  on  a
    32  person  for two or more offenses committed through a single act or omis-
    33  sion, or through an act or omission which in itself constituted  one  of
    34  the  offenses  and  also  was  a  material  element  of  the  other, the
    35  sentences, except if one or more of such sentences is for a violation of
    36  section 270.20 of this chapter, must run concurrently.
    37    (b) Notwithstanding paragraph (a) of this subdivision, the  court  may
    38  impose consecutive sentences where: (i) more than one sentence of impri-
    39  sonment is imposed on a person for two or more counts of section 120.03,
    40  120.04, 120.04-a, subdivisions three and four of section 120.05, 120.10,
    41  120.11,  125.10, 125.11, 125.12, 125.13, 125.14, 125.15, 125.20, 125.21,
    42  125.22, 125.25; and (ii) such multiple counts were  charged  based  upon
    43  multiple  victims  suffering physical injury, serious physical injury or
    44  death as a result of a single act or omission of the defendant.
    45    § 4. Paragraph (a) of subdivision 2 of section 1194 of the vehicle and
    46  traffic law, as amended by chapter 196 of the laws of 1996,  is  amended
    47  to read as follows:
    48    (a)  When  authorized. Any person who operates a motor vehicle in this
    49  state shall be deemed to have given consent to a chemical test of one or
    50  more of the following: breath, blood, urine, or saliva, for the  purpose
    51  of  determining  the alcoholic and/or drug content of the blood provided
    52  that such test is administered by or at the direction of a police  offi-
    53  cer  with respect to a chemical test of breath, urine or saliva or, with
    54  respect to a chemical test of blood, at the direction of a police  offi-
    55  cer:
        A. 7072                             4

     1    (1)  having  reasonable  grounds  to  believe such person to have been
     2  operating in violation of any  subdivision  of  section  eleven  hundred
     3  ninety-two  of  this  article and within two hours after such person has
     4  been placed under arrest for any such violation;  or  having  reasonable
     5  grounds  to  believe  such person to have been operating in violation of
     6  section eleven hundred ninety-two-a of this article and within two hours
     7  after the stop of such person for any such violation[,];
     8    (2) [within two hours after a breath test, as  provided  in  paragraph
     9  (b)  of subdivision one of this section, indicates that alcohol has been
    10  consumed by such person and in accordance with the rules and regulations
    11  established by the police force of which the officer is a member;
    12    (3)] for the purposes  of  this  paragraph,  "reasonable  grounds"  to
    13  believe  that  a  person has been operating a motor vehicle after having
    14  consumed alcohol in violation of section eleven hundred ninety-two-a  of
    15  this  article  shall  be  determined  by viewing the totality of circum-
    16  stances surrounding the incident which, when  taken  together,  indicate
    17  that  the  operator  was  driving in violation of such subdivision. Such
    18  circumstances may include any visible or behavioral indication of  alco-
    19  hol  consumption  by  the  operator,  the existence of an open container
    20  containing or having contained an alcoholic beverage in  or  around  the
    21  vehicle  driven  by  the operator, or any other evidence surrounding the
    22  circumstances of the incident which indicates that the operator has been
    23  operating a motor vehicle after having consumed alcohol at the  time  of
    24  the incident; or
    25    [(4)]  (3) notwithstanding any other provision of law to the contrary,
    26  no person under the age of twenty-one shall be arrested for  an  alleged
    27  violation  of  section  eleven  hundred  ninety-two-a  of  this article.
    28  However, a person under the age of twenty-one for whom a  chemical  test
    29  is  authorized pursuant to this paragraph may be temporarily detained by
    30  the police solely for the purpose of requesting  or  administering  such
    31  chemical  test  whenever  arrest  without  a warrant for a petty offense
    32  would be authorized in accordance with the provisions of section  140.10
    33  of  the  criminal  procedure  law or paragraph (a) of subdivision one of
    34  this section.
    35    § 5. Paragraph (b) of subdivision 3 of section 1194 of the vehicle and
    36  traffic law, as added by chapter 47 of the laws of 1988, is  amended  to
    37  read as follows:
    38    (b)  When authorized. Upon refusal by any person to submit to a chemi-
    39  cal test or any portion thereof as described above, the test  shall  not
    40  be  given  unless a police officer or a district attorney, as defined in
    41  subdivision thirty-two of section 1.20 of the  criminal  procedure  law,
    42  requests  and  obtains  a  court order to compel a person to submit to a
    43  chemical test to determine the alcoholic or drug content of the person's
    44  blood upon a finding of reasonable cause to believe that:
    45    (1) such person was the operator of a motor vehicle and in the  course
    46  of  such  operation  a  person  other  than  the  operator was killed or
    47  suffered serious physical injury as defined  in  section  10.00  of  the
    48  penal law; and
    49    (2)  a.  either  such  person operated the vehicle in violation of any
    50  subdivision of section eleven hundred ninety-two of this article, or
    51    b. a breath test administered by a police officer in  accordance  with
    52  paragraph  (b) of subdivision one of this section indicates that alcohol
    53  has been consumed by such person; and
    54    (3) [such person has been placed under lawful arrest; and
    55    (4)] such person has refused to submit to a  chemical  test  or  field
    56  test or any portion thereof, requested in accordance with the provisions
        A. 7072                             5

     1  of paragraph (a) of subdivision two of this section or is unable to give
     2  consent to such a test.
     3    § 6. Paragraph (a) of subdivision 1 of section 70.06 of the penal law,
     4  as  amended  by  chapter  410 of the laws of 1979, is amended to read as
     5  follows:
     6    (a) A second felony offender is a person, other than a second  violent
     7  felony  offender as defined in section 70.04 of this article, who stands
     8  convicted of a felony defined in this chapter  or  in  the  vehicle  and
     9  traffic law, other than a class A-I felony, after having previously been
    10  subjected  to  one  or  more  predicate felony convictions as defined in
    11  paragraph (b) of this subdivision.
    12    § 7. Paragraph (b) of subdivision 1 of section 160.10 of the  criminal
    13  procedure law, as amended by chapter 762 of the laws of 1971, is amended
    14  to read as follows:
    15    (b)  A misdemeanor defined in the penal law or the vehicle and traffic
    16  law; or
    17    § 8. Section 114-a of the vehicle and traffic law, as amended by chap-
    18  ter 92 of the laws of 2021, is amended to read as follows:
    19    § 114-a. Drug. The term "drug" when used in this chapter,  means  [and
    20  includes]  any  substance  that impairs the physical or mental abilities
    21  necessary to operate a motor vehicle as a reasonable and prudent driver,
    22  including but not limited to, any substance listed  in  section  thirty-
    23  three hundred six of the public health law and cannabis and concentrated
    24  cannabis as defined in section 222.00 of the penal law.
    25    § 9. Paragraph (e) of subdivision 2 of section 1193 of the vehicle and
    26  traffic  law  is  amended  by  adding  a  new  subparagraph 8 to read as
    27  follows:
    28    (8)  Suspension  pending  prosecution;  drug  impairment.  Except   as
    29  provided  in clause a-1 of subparagraph seven of this paragraph, a court
    30  shall suspend a driver's license, pending  prosecution,  of  any  person
    31  charged with a violation of subdivision four or four-a of section eleven
    32  hundred  ninety-two  of  this  article  who,  at  the time of arrest, is
    33  alleged to have been driving while ability impaired by drugs.
    34    § 10. Paragraph (a) of subdivision 3 of section 30.30 of the  criminal
    35  procedure  law, as amended by section 1 of part KKK of chapter 59 of the
    36  laws of 2019, is amended to read as follows:
    37    (a) Subdivisions one and two of this section do not apply to a  crimi-
    38  nal  action  wherein  the  defendant is accused of an offense defined in
    39  sections 125.10, 125.12, 125.13, 125.14, 125.15, 125.20, 125.25,  125.26
    40  and 125.27 of the penal law.
    41    §  11.  Paragraph c of subdivision 2 of section 600 of the vehicle and
    42  traffic law, as amended by chapter 497 of the laws of 2022,  is  amended
    43  to read as follows:
    44    c.  A  violation  of the provisions of paragraph a of this subdivision
    45  resulting solely from the failure of an operator to exhibit his  or  her
    46  license  and  insurance  identification card for the vehicle or exchange
    47  the information required in such paragraph shall constitute  a  class  B
    48  misdemeanor  punishable by a fine of not less than two hundred fifty nor
    49  more than five hundred  dollars  in  addition  to  any  other  penalties
    50  provided  by law. Any subsequent such violation shall constitute a class
    51  A misdemeanor punishable by a fine of not less  than  five  hundred  nor
    52  more  than  one  thousand  dollars  in  addition  to any other penalties
    53  provided by law. Any violation of the provisions of paragraph a of  this
    54  subdivision,  other  than for the mere failure of an operator to exhibit
    55  his or her license and insurance identification card for such vehicle or
    56  exchange the information required in such paragraph, shall constitute  a
        A. 7072                             6

     1  class A misdemeanor, punishable by a fine of not less than seven hundred
     2  fifty  dollars  nor  more  than  one thousand dollars in addition to any
     3  other penalties provided by law.  Any  such  violation  committed  by  a
     4  person  after  such  person  has  previously  been  convicted  of such a
     5  violation shall constitute a class E felony, punishable by a fine of not
     6  less than one thousand nor more than three thousand dollars in  addition
     7  to  any other penalties provided by law. Any violation of the provisions
     8  of paragraph a of this subdivision, other than for the mere  failure  of
     9  an  operator  to exhibit his or her license and insurance identification
    10  card for such vehicle or exchange the information required in such para-
    11  graph, where the personal injury involved (i) results in  serious  phys-
    12  ical injury, as defined in section 10.00 of the penal law, shall consti-
    13  tute  a  class  [E]  D felony, punishable by a fine of not less than one
    14  thousand nor more than five thousand dollars in addition  to  any  other
    15  penalties  provided  by law, or (ii) results in death shall constitute a
    16  class [D] C felony punishable by a fine of not less  than  two  thousand
    17  nor  more  than five thousand dollars in addition to any other penalties
    18  provided by law.
    19    § 12. This act shall take effect on  the  one  hundred  twentieth  day
    20  after it shall have become a law.