Bill Text: NY S00775 | 2023-2024 | General Assembly | Amended

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Bill Title: Describes the role of the ignition interlock monitor as well as requirements of people charged with violations that require the installation of an ignition interlock device to comply with court orders.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Engrossed) 2024-01-03 - REFERRED TO TRANSPORTATION [S00775 Detail]

Download: New_York-2023-S00775-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         775--A

                               2023-2024 Regular Sessions

                    IN SENATE

                                     January 6, 2023
                                       ___________

        Introduced  by  Sen.  COONEY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Transportation -- reported
          favorably from said  committee  and  committed  to  the  Committee  on
          Finance  --  committee  discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee

        AN ACT to amend the vehicle and  traffic  law  and  the  penal  law,  in
          relation to the ignition interlock program

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

     1    Section 1. Legislative findings.  The  legislature  hereby  finds  and
     2  declares:
     3    1.  In  2009, New York adopted "Leandra's Law" to require, as a condi-
     4  tion of sentence, that all individuals convicted of the crime of driving
     5  while intoxicated install an ignition interlock device (IID) for a spec-
     6  ified time in any vehicle they own or operate.    Fifteen  years  later,
     7  despite  the  mandate,  only  three in ten offenders actually install an
     8  IID.
     9    2. In addition, although the  penalty  model  based  predominantly  on
    10  license  revocation  persists,  far too many offenders continue to drive
    11  even after losing their  license privilege, and a significant number  of
    12  them    continue to drive under the influence of alcohol.  The consensus
    13  among highway safety experts is that well over  fifty  percent,  and  as
    14  many as eighty percent, of revoked drivers continue to drive while unli-
    15  censed.
    16    3.  IIDs  are  designed  to  do  two things: (1) protect the public by
    17  preventing drunk driving events; and (2) alter driver behavior to reduce
    18  recidivism. Numerous studies have shown IIDs to be overwhelmingly effec-
    19  tive on both counts:
    20    (a) Public safety. Between December 1, 2006 and December 31, 2020, IID
    21  installation stopped 3.8 million drivers nationally from  attempting  to
    22  drive  while  legally  intoxicated  (.08+) and foiled an additional 25.4

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02546-04-3
        S. 775--A                           2

     1  million drivers from attempting to drive after consuming enough  alcohol
     2  to trigger the IID's set point.  Over the same time period in New York -
     3  even despite the poor compliance rate - IIDs prevented more than 111,000
     4  legally  drunk  drivers  and  foiled  an  additional 439,427 attempts by
     5  convicted drunk drivers who attempted to start a vehicle after consuming
     6  alcohol.
     7    (b) Reduced recidivism. A 2016 University of Pennsylvania study  found
     8  that  alcohol-related fatalities decreased by 15% in states with all-of-
     9  fender interlock laws. Similarly, a 2016 California study concluded that
    10  ignition interlock devices are seventy-four percent  more  effective  in
    11  reducing  DWI  recidivism than license suspension alone during the first
    12  six months after conviction and forty-five percent more  effective  over
    13  the course of a year.
    14    4. Given the empirical data that favors the use of the IID as a condi-
    15  tion of sentence, either in conjunction with or instead of license revo-
    16  cation,  the  legislature  finds  that New York has fallen significantly
    17  behind other states that utilize  IIDs  to  promote  public  safety  and
    18  support  rehabilitative efforts.   Accordingly, the legislature declares
    19  that to further advance public safety, New York must  adopt  best  prac-
    20  tices  consistent  with the data for model use of the ignition interlock
    21  device as a proven method for saving lives and promoting rehabilitation.
    22    § 2.  Paragraph (c) of subdivision 1 of section 1193  of  the  vehicle
    23  and  traffic  law,  as  amended  by chapter 169 of the laws of 2013, and
    24  subparagraph (ii-a) as added by chapter 191 of  the  laws  of  2014,  is
    25  amended to read as follows:
    26    (c)  Felony  offenses.  (i)  A  person  who  operates a vehicle (A) in
    27  violation of subdivision two, two-a, three, four or  four-a  of  section
    28  eleven hundred ninety-two of this article after having been convicted of
    29  a  violation  of  subdivision  two, two-a, three, four or four-a of such
    30  section or of vehicular assault  in  the  second  or  first  degree,  as
    31  defined,  respectively,  in  sections  120.03  and 120.04 and aggravated
    32  vehicular assault as defined in section 120.04-a of the penal law or  of
    33  vehicular  manslaughter  in  the  second  or  first  degree, as defined,
    34  respectively, in sections 125.12 and  125.13  and  aggravated  vehicular
    35  homicide  as defined in section 125.14 of such law, within the preceding
    36  ten years, or (B) in violation of paragraph (b) of subdivision two-a  of
    37  section  eleven  hundred ninety-two of this article shall be guilty of a
    38  class E felony, and shall be punished by a fine of  not  less  than  one
    39  thousand  dollars  nor more than five thousand dollars or by a period of
    40  imprisonment as provided in the penal law, or  by  both  such  fine  and
    41  imprisonment.
    42    (ii)  A person who operates a vehicle in violation of subdivision two,
    43  two-a, three, four or four-a of section  eleven  hundred  ninety-two  of
    44  this  article  after having been convicted of a violation of subdivision
    45  two, two-a, three, four or  four-a  of  such  section  or  of  vehicular
    46  assault  in  the  second  or  first degree, as defined, respectively, in
    47  sections 120.03 and 120.04 and aggravated vehicular assault  as  defined
    48  in section 120.04-a of the penal law or of vehicular manslaughter in the
    49  second or first degree, as defined, respectively, in sections 125.12 and
    50  125.13 and aggravated vehicular homicide as defined in section 125.14 of
    51  such  law,  twice  within  the preceding ten years, shall be guilty of a
    52  class D felony, and shall be punished by a fine of  not  less  than  two
    53  thousand  dollars  nor  more than ten thousand dollars or by a period of
    54  imprisonment as provided in the penal law, or  by  both  such  fine  and
    55  imprisonment.
        S. 775--A                           3

     1    (ii-a)  A  person  who  operates a vehicle in violation of subdivision
     2  two, two-a, three, four or four-a of section eleven  hundred  ninety-two
     3  of  this  article after having been convicted of a violation of subdivi-
     4  sion two, two-a, three, four or four-a of such section or  of  vehicular
     5  assault  in  the  second  or  first degree, as defined, respectively, in
     6  sections 120.03 and 120.04 and aggravated vehicular assault  as  defined
     7  in section 120.04-a of the penal law or of vehicular manslaughter in the
     8  second or first degree, as defined, respectively, in sections 125.12 and
     9  125.13 and aggravated vehicular homicide as defined in section 125.14 of
    10  such  law, three or more times within the preceding fifteen years, shall
    11  be guilty of a class D felony, and shall be punished by a  fine  of  not
    12  less  than two thousand dollars nor more than ten thousand dollars or by
    13  a period of imprisonment as provided in the penal law, or by  both  such
    14  fine and imprisonment.
    15    [(iii)  In  addition to the imposition of any fine or period of impri-
    16  sonment set forth in this paragraph, the court shall also sentence  such
    17  person convicted of, or adjudicated a youthful offender for, a violation
    18  of  subdivision two, two-a or three of section eleven hundred ninety-two
    19  of this article to a period of probation or conditional discharge, as  a
    20  condition  of  which it shall order such person to install and maintain,
    21  in accordance with the provisions of section eleven hundred ninety-eight
    22  of this article, an ignition interlock device in any motor vehicle owned
    23  or operated by such person during the term of such probation  or  condi-
    24  tional  discharge  imposed  for such violation of section eleven hundred
    25  ninety-two of this article and in no event for a  period  of  less  than
    26  twelve   months;  provided,  however,  that  such  period  of  interlock
    27  restriction shall terminate upon submission of proof  that  such  person
    28  installed  and  maintained an ignition interlock device for at least six
    29  months, unless the court ordered such person to install and  maintain  a
    30  ignition  interlock  device  for  a  longer period as authorized by this
    31  subparagraph and specified  in  such  order.  The  period  of  interlock
    32  restriction  shall  commence from the earlier of the date of sentencing,
    33  or the date that an ignition interlock device was installed  in  advance
    34  of sentencing. Provided, however, the court may not authorize the opera-
    35  tion  of  a  motor  vehicle  by any person whose license or privilege to
    36  operate a motor vehicle has been revoked pursuant to the  provisions  of
    37  this section.]
    38    § 3. Paragraph (g) of subdivision 1 of section 1193 of the vehicle and
    39  traffic  law,  as  amended  by section 57 of part A of chapter 56 of the
    40  laws of 2010, is amended to read as follows:
    41    (g) Condition of probation and conditional discharge; ignition  inter-
    42  lock  device  requirements;  alternative sentence authorized.  (1) Defi-
    43  nitions. For the purposes of paragraphs (g) through (m) of this subdivi-
    44  sion, the terms defined in subdivision one-a of section  eleven  hundred
    45  ninety-eight of this article shall be applicable.
    46    (2)  Ignition  interlock device; sentence.  In addition to the imposi-
    47  tion of any fine or period of imprisonment as set forth in this subdivi-
    48  sion and to any license sanction imposed pursuant to subdivision two  of
    49  this  section,  the  court  shall  sentence such person convicted of, or
    50  adjudicated a youthful offender for, a  violation  of  subdivision  two,
    51  two-a,  three  or  four-a  of  section eleven hundred ninety-two of this
    52  article to a period of probation or conditional  discharge,  the  condi-
    53  tions of which shall include the following:
    54    (i) an express prohibition on the operation of any motor vehicle with-
    55  out a functioning ignition interlock device from a qualified manufactur-
    56  er for a period of twelve months or longer, pursuant to the requirements
        S. 775--A                           4

     1  of  this  paragraph  and  paragraph  (c)  of  subdivision  one-a of this
     2  section, and which shall run concurrently with  any  period  of  license
     3  sanction; and
     4    (ii)  such  person  shall  install and maintain in accordance with the
     5  provisions of section eleven hundred ninety-eight of  this  article,  an
     6  ignition  interlock  device in any motor vehicle operated by such person
     7  for a period of twelve months or longer as  set  forth  in  subparagraph
     8  four  of  this  paragraph, including the one hundred eighty days after a
     9  license  has  been  restored;  provided,  however,  a   certificate   of
    10  completion  certifying  that such person has operated such motor vehicle
    11  free of any events as set forth in paragraph (j) of this subdivision for
    12  a period of one hundred twenty consecutive days after the restoration of
    13  the operator's license, shall be deemed to have satisfied the conditions
    14  of probation or conditional discharge relating to the ignition interlock
    15  requirements set forth  in  this  paragraph.  The  period  of  interlock
    16  restriction  shall  commence  on  the  date that such ignition interlock
    17  device shall have been installed.
    18    (3) Ignition interlock device; alternative sentence.   Notwithstanding
    19  the provisions of subparagraph two of this paragraph and subdivision two
    20  of  this section relating to license sanctions, a court may, upon motion
    21  of the defendant,  impose  an  alternative  sentence  upon  such  person
    22  convicted  of,  or  adjudicated  a youthful offender for, a violation of
    23  subdivision two, two-a, three or four-a of section eleven hundred  nine-
    24  ty-two  of this article, a period of probation or conditional discharge,
    25  the conditions of which shall include the following:
    26    (i) a conditional waiver of the license sanction provisions of  subdi-
    27  vision two of this section;
    28    (ii) an express prohibition from operating any vehicle without a func-
    29  tioning ignition interlock device for a period of twelve months or long-
    30  er  pursuant  to the requirements of this paragraph and paragraph (c) of
    31  subdivision one-a of this section; and
    32    (iii) an order that such person install and  maintain,  in  accordance
    33  with the provisions of section eleven hundred ninety-eight of this arti-
    34  cle, an ignition interlock device in any motor vehicle owned or operated
    35  by  such person for a period of twelve months or longer, as set forth in
    36  subparagraph four of this paragraph; provided, however, a certificate of
    37  completion certifying that such person has operated  the  motor  vehicle
    38  free of any events as set forth in paragraph (j) of this subdivision for
    39  a  period  of  three  hundred  consecutive  days shall be deemed to have
    40  satisfied the conditions of probation or conditional discharge  relating
    41  to  the  ignition interlock requirements as set forth in this paragraph.
    42  The period of interlock restriction shall commence on the date that such
    43  ignition interlock device shall have  been  installed.  The  alternative
    44  sentence  set  forth  herein may be revoked by the court for cause. This
    45  sentence not be imposed on any offender who is subject to the additional
    46  penalties set forth in paragraph (a) or (b) of subdivision one-a of this
    47  section or who shall have also been convicted  of  a  violation  of  any
    48  provision  of  article  one hundred twenty or one hundred twenty-five of
    49  the penal law involving the operation of a motor vehicle.
    50    (4) License restoration.   When a  sentence  is  imposed  pursuant  to
    51  subparagraph  two  or  three  of  this  paragraph, in no event shall the
    52  commissioner restore the license of any such person  until  the  commis-
    53  sioner  receives a certificate of completion certifying that such person
    54  has operated the motor vehicle free of any events set forth in paragraph
    55  (j) of this subdivision for the applicable time periods imposed pursuant
    56  to subparagraphs two and three of this  paragraph.  Non-compliance  with
        S. 775--A                           5

     1  the  ignition  interlock requirements set forth in paragraph (j) of this
     2  subdivision shall cause the respective period of operation to reset from
     3  the date of any such violation.
     4    (h)  Driving  while  ability  impaired  by alcohol; ignition interlock
     5  device requirement.  Notwithstanding any other provision of law  to  the
     6  contrary,  when a person is charged with a violation of subdivision two,
     7  two-a, three, or four-a of section eleven  hundred  ninety-two  of  this
     8  article  and a plea of guilty shall have been entered in satisfaction of
     9  such charge to a violation of subdivision one of section eleven  hundred
    10  ninety-two  of  this article, and the person has either: (1) had a prior
    11  conviction for a violation of any provision of  section  eleven  hundred
    12  ninety-two of this article within the previous ten years; (2) registered
    13  a  BAC  of  .13 or more; (3) has refused to submit to a chemical test of
    14  his or her blood, breath, urine or saliva pursuant to the provisions  of
    15  section  eleven hundred ninety-four of this article, or (4) the underly-
    16  ing charge involved the combined use of drugs and  alcohol,  the  condi-
    17  tions of such plea shall include an express prohibition on the operation
    18  of any motor vehicle without a functioning ignition interlock device for
    19  a period of six months, and which shall run concurrently with any period
    20  of  license sanction, and that such person shall install and maintain an
    21  ignition interlock device for a period of not less than  six  months  on
    22  any  motor  vehicle  owned  or  operated  by such person.   If the court
    23  accepts the plea to the reduced charge, the court  shall  sentence  such
    24  person  to  a conditional discharge which shall include such requirement
    25  in addition to any fine required by this article and any other condition
    26  authorized by law or otherwise imposed by the court.   A certificate  of
    27  completion  certifying  that  such person has operated the motor vehicle
    28  free of any events as set forth in paragraph (j) of this subdivision for
    29  a period of ninety consecutive days  after  the  date  of  installation,
    30  shall  be  deemed to have satisfied the conditions of such plea relating
    31  to the ignition interlock requirements set forth in this paragraph.  The
    32  period  of  interlock  restriction  shall be deemed to commence from the
    33  date such ignition interlock device shall have been installed.  If  such
    34  person  is  found to have violated the terms of the use of such ignition
    35  interlock device as set forth in paragraph (j) of this subdivision, such
    36  ninety day period shall reset from the date of any such violation.
    37    (i) Permanent revocation; ignition  interlock  requirement.  A  person
    38  subject  to  a  permanent  license revocation pursuant to a provision of
    39  this chapter or any rule promulgated pursuant to this chapter, when  the
    40  underlying  basis  for  the  permanent revocation relates to two or more
    41  violations of section eleven hundred ninety-two of this  article  and/or
    42  refusal  to submit to a chemical test pursuant to section eleven hundred
    43  ninety-four of this article, such person shall be entitled to  apply  to
    44  the commissioner for a post-revocation conditional license provided that
    45  the person has not within the past twenty-five years been convicted of a
    46  violation  of  article one hundred twenty or article one hundred twenty-
    47  five of the penal law related to the operation of a motor  vehicle,  and
    48  the  person  has  been subject to a license revocation for not less than
    49  five years and  has  not,  during  that  period,  been  convicted  of  a
    50  violation  of  this  chapter regarding the operation of a motor vehicle.
    51  Upon application, the commissioner shall provide such applicant  with  a
    52  post-revocation conditional license subject to the following conditions:
    53    (1)  submission of proof that all sanctions imposed as a result of the
    54  previous convictions have been satisfied, including but not limited  to,
    55  completion  of  the impaired driving program and/or proof of rehabilita-
    56  tive effort, where either or both are required, payment of all fines and
        S. 775--A                           6

     1  mandatory surcharges, and payment  of  any  restitution  required  as  a
     2  result of such convictions;
     3    (2) an express prohibition on the operation of any motor vehicle with-
     4  out  a functioning ignition interlock device for a period of twenty-four
     5  months as set forth in this paragraph; and
     6    (3) such person shall install and  maintain  in  accordance  with  the
     7  provisions  of  section  eleven hundred ninety-eight of this article, an
     8  ignition interlock device in any motor vehicle owned or operated by such
     9  person, for a period of twenty-four months.  Where all other  conditions
    10  or the sentence have been satisfied pursuant to subparagraph one of this
    11  paragraph, there shall be a rebuttable presumption of rehabilitation for
    12  the purpose of petitioning the commissioner for restoration of the oper-
    13  ator's  license  to  operate  a  motor  vehicle  upon  a  certificate of
    14  completion certifying that such person has operated such  motor  vehicle
    15  free  of any violations of this chapter, excepting violations related to
    16  standing, stopping or parking, and has been free of any events set forth
    17  in paragraph (j) of this subdivision during the  post-revocation  condi-
    18  tional  license  period.  A  violation of section five hundred eleven of
    19  this chapter, any provision of section eleven hundred ninety-two of this
    20  article, or refusal to submit to a chemical  test  pursuant  to  section
    21  eleven  hundred  ninety-four  of this article during the post-revocation
    22  conditional license period will result in immediate revocation  of  such
    23  license  subject  to the rules of the commissioner. The period of inter-
    24  lock restriction shall commence on the date that such ignition interlock
    25  device shall have been installed.
    26    (j) Non-compliance with ignition interlock requirements. For  purposes
    27  of paragraphs (g), (h) and (i) of this subdivision, the following events
    28  shall  be  deemed to be non-compliant with the ignition interlock device
    29  requirements:
    30    (1) any violation of the provisions set forth in subdivision  nine  of
    31  section  eleven  hundred  ninety-eight of this article regarding circum-
    32  venting or tampering with an ignition interlock device  or  operating  a
    33  vehicle without a functioning interlock device, regardless of the under-
    34  lying basis for the ignition interlock requirement; or
    35    (2) a certified violation on a form provided by the division of crimi-
    36  nal justice services that such person has:
    37    (i)  attempted  to  start  his  or  her vehicle when the start-up test
    38  resulted in a blood alcohol concentration level of at or above  the  set
    39  point  of  .025,  unless  a subsequent test performed within ten minutes
    40  thereafter registers a blood alcohol concentration level lower than  the
    41  set  point  and the digital image provided confirms that the same person
    42  provided both samples;
    43    (ii) missed any random test, unless a  review  of  the  digital  image
    44  confirms that such vehicle was not occupied by the driver at the time of
    45  the missed test;
    46    (iii)  failed  any  random  test  or re-test, unless a subsequent test
    47  performed within ten minutes registers  a  blood  alcohol  concentration
    48  level  below  the set point of .025, and the digital image confirms that
    49  the same person provided both samples; or
    50    (iv) failed to appear at the installation/service provider for instal-
    51  lation or for a service visit when  required  for  maintenance,  repair,
    52  calibration, monitoring, inspection, or replacement of such device. When
    53  applicable,  a  certificate  of non-compliance shall be accompanied by a
    54  contemporaneous digital image verifying the identity of the violator.
    55    (k) Duration of ignition interlock requirement. In any case set  forth
    56  in  this subdivision where the period of the ignition interlock require-
        S. 775--A                           7

     1  ment exceeds the period of probation or conditional discharge,  and  the
     2  court  has  not  otherwise extended its jurisdiction over the matter, it
     3  shall remain in full force and  effect  subject  to  the  administrative
     4  jurisdiction of the commissioner and any rule promulgated by the commis-
     5  sioner to effectuate the provisions of this subdivision.
     6    (l)  Ignition  interlock  device  requirements; terms of imprisonment.
     7  When a sentence imposed pursuant to this subdivision includes a term  of
     8  imprisonment,  the  satisfaction  of such term of imprisonment shall not
     9  reduce or otherwise limit the requirements set forth in paragraph (g) of
    10  this subdivision.
    11    (m) A person who has successfully  satisfied  the  ignition  interlock
    12  requirements set forth in paragraph (g) or (h) of this subdivision shall
    13  no  longer  be subject to the provisions of section eleven hundred nine-
    14  ty-nine of this article relating to the driver responsibility assessment
    15  and any fee paid by such  person  pursuant  to  such  section  shall  be
    16  returned by the commissioner upon satisfactory proof of compliance.
    17    (n) The office of probation and correctional alternatives shall recom-
    18  mend  to  the  commissioner of the division of criminal justice services
    19  regulations governing the monitoring of compliance by persons ordered to
    20  install and maintain ignition interlock devices to provide standards for
    21  monitoring by departments of probation, and options  for  monitoring  of
    22  compliance by such persons, that counties may adopt as an alternative to
    23  monitoring by a department of probation.
    24    §  4.  Paragraph (c) of subdivision 1-a of section 1193 of the vehicle
    25  and traffic law, as amended by chapter 669  of  the  laws  of  2007,  is
    26  amended to read as follows:
    27    (c)  A  court  sentencing a person pursuant to paragraph (a) or (b) of
    28  this subdivision shall: (i) order, as a condition of such sentence,  the
    29  installation  of  an  ignition  interlock  device  approved  pursuant to
    30  section eleven hundred ninety-eight of this article in any motor vehicle
    31  owned or operated by the person so sentenced. Such devices shall  remain
    32  installed during any period of license revocation required to be imposed
    33  pursuant  to paragraph (b) of subdivision two of this section, and, upon
    34  the termination of such revocation period, for an additional  period  as
    35  determined  by  the  court  or as otherwise provided in paragraph (g) of
    36  subdivision one of this section; and (ii) order that such person receive
    37  an assessment of the degree of their  alcohol  or  substance  abuse  and
    38  dependency  pursuant to the provisions of section eleven hundred ninety-
    39  eight-a of this article.  Where such assessment indicates the  need  for
    40  treatment,  such  court is authorized to impose treatment as a condition
    41  of such sentence except that such court  shall  impose  treatment  as  a
    42  condition  of  a sentence of probation or conditional discharge pursuant
    43  to the provisions of subdivision three of section eleven  hundred  nine-
    44  ty-eight-a  of  this  article. Any person ordered to install an ignition
    45  interlock device pursuant to this paragraph shall be  subject  to  para-
    46  graph  (g)  of  subdivision  one  of  this section and the provisions of
    47  subdivisions four, five, seven, eight and nine of section eleven hundred
    48  ninety-eight of this article.
    49    § 5. Subdivisions 1, 2, 3, 4 and 5 of section 1198 of the vehicle  and
    50  traffic  law, subdivisions 1, 2, 3, 4 and paragraph (a) of subdivision 5
    51  as amended by chapter 496 of the laws of 2009, paragraph (a) of subdivi-
    52  sion 4 as amended by chapter 169 of the laws of 2013, and subdivision  5
    53  as  amended  by  chapter  669 of the laws of 2007, are amended and a new
    54  subdivision 1-a is added to read as follows:
    55    1. Applicability. The provisions of this section shall apply  through-
    56  out the state to each person required or otherwise ordered by a court as
        S. 775--A                           8

     1  a condition of sentence, plea, probation or conditional discharge, which
     2  shall  prohibit  the  operation of a motor vehicle without a functioning
     3  ignition interlock device and requires such person to install and [oper-
     4  ate]  maintain  an ignition interlock device in any vehicle [which he or
     5  she owns or operates] owned or operated by such person.
     6    1-a. Definitions. For the purposes of this section and subdivision one
     7  of section  eleven hundred ninety-three of this article,  the  following
     8  terms shall have the following meanings:
     9    (a)    The  term "blood alcohol concentration" or "BAC" shall mean the
    10  weight amount of alcohol contained in a unit volume of  blood,  measured
    11  as  grams  ethanol/one  hundred  milliliters blood, and expressed as   %
    12  BAC.
    13    (b) The term "certificate of completion" shall mean a document  issued
    14  by the monitor after the conclusion of the ignition interlock period set
    15  by  the  criminal  court, including any extensions  or modifications  as
    16  may  have  subsequently  occurred  which   shows   either   satisfactory
    17  completion of the  ignition interlock condition or a change by the court
    18  in a pre-sentence order no longer requiring the need for a device, or  a
    19  change    in    the  conditions of probation or conditional discharge no
    20  longer requiring the need for a device after completion of the  ignition
    21  interlock  period as set forth in section eleven hundred ninety-three of
    22  this article.
    23    (c)  The  term  "circumvent" shall mean to request, solicit  or  allow
    24  any  other person to blow into an ignition interlock device or  to start
    25  a motor vehicle equipped with the device, for the purpose  of  providing
    26  the operator whose  driving  privileges  is  so restricted with an oper-
    27  able  motor  vehicle,  or  to  blow into an ignition interlock device or
    28  start  a motor  vehicle  equipped with the device  for  the  purpose  of
    29  providing an operable motor vehicle  to  a  person  whose  driving priv-
    30  ilege  is so restricted or to tamper with an operable ignition interlock
    31  device.
    32    (d) The term "county" shall mean every county outside of the  city  of
    33  New York, and the city of New York as a whole.
    34    (e)  The  term  "division" shall mean   the   division   of   criminal
    35  justice services.
    36    (f)  The  term  "drinking driver program" or "impaired driver program"
    37  shall mean an alcohol and drug rehabilitation program established pursu-
    38  ant to section  eleven hundred ninety-six of this article.
    39    (g) The term "failed tests" shall mean a  start-up  re-test  or  roll-
    40  ing re-test at or above the set point, or a missed rolling re-test.
    41    (h)    The  term "ignition interlock monitor"  or "monitor" shall mean
    42  the local probation  department where the   operator  is  under  interim
    43  probation supervision or probation or any person or entity designated in
    44  the  county's ignition   interlock program plan for any operator granted
    45  conditional discharge or  otherwise  required  to  install  an  ignition
    46  interlock  device  who  monitors  compliance with the provisions of this
    47  section  and the concurrent regulations related thereto.
    48    (i) The term "installation/service  provider" shall  mean   an  entity
    49  located in the state approved by a qualified manufacturer that installs,
    50  services, and/or removes an ignition interlock device.
    51    (j)  The term "operator" shall mean a person who is subject to instal-
    52  lation of  an  ignition  interlock  device  arising  from  a  charge  or
    53  conviction  under  this  article or the  penal law, where a violation of
    54  this article is an essential element thereof,  or arising from a  youth-
    55  ful adjudication of any such offense.
        S. 775--A                           9

     1    (k) The term "owned or operated" shall refer to a vehicle owned by the
     2  person  required by a court to install an ignition interlock device as a
     3  condition of probation or conditional discharge or,  alternatively,  the
     4  vehicle  most  regularly operated by such person regardless of registra-
     5  tion or title.
     6    (l)    The  term "qualified manufacturer" shall mean a manufacturer or
     7  distributor of an ignition interlock device certified by   the   depart-
     8  ment of health which has satisfied the specific operational requirements
     9  herein  and  has  been approved as an eligible vendor by the division in
    10  the designated region where the county is located.
    11    (m) The term "random test" shall include a start-up re-test, a rolling
    12  test, or rolling re-test as those terms are defined herein.
    13    (n) The term "start-up test" shall mean a breath  test  taken  by  the
    14  operator  to measure  the  operator's  blood alcohol concentration prior
    15  to starting the vehicle's ignition.
    16    (o) The term "start-up re-test" shall mean a breath test taken by  the
    17  operator  to measure the operator's blood alcohol concentration required
    18  within five to fifteen minutes of a failed start-up test.
    19    (p) The term "rolling test" shall mean a breath  test, administered at
    20  random intervals, taken by the operator while the vehicle is running.
    21    (q) The  term "rolling re-test" shall mean a breath test, taken by the
    22  operator while the vehicle is running, within one to three minutes after
    23  a failed or missed rolling test.
    24    (r) The term "failed rolling re-test" shall mean a rolling re-test  in
    25  which the operator's BAC is at or above the set point.
    26    (s)  The  term "missed rolling re-test" shall mean failure to take the
    27  rolling re-test within the time period allotted to do so.
    28    (t) The term "service visit" shall mean a visit  by  the  operator  or
    29  another   driver   of      the   subject   vehicle  to  or     with  the
    30  installation/service provider for purposes of having the ignition inter-
    31  lock device inspected for repair, defect,  and  detection  of  tampering
    32  and/or circumvention, downloaded, recalibrated, or maintained.
    33    (u)  The  term  "set point" shall mean a pre-set or pre-determined BAC
    34  setting at which, or above, the device will prevent the ignition of    a
    35  motor  vehicle  from  operating.    For the purposes of this section and
    36  subdivision one of section eleven hundred ninety-three of this  article,
    37  the set point shall be a BAC of .025.
    38    (v)  The  term  "tamper"  shall  mean to alter, disconnect, physically
    39  disable, remove, deface, or destroy an ignition interlock device or  any
    40  of its component seals.
    41    2.  Requirements. (a) In addition to any other penalties prescribed by
    42  law, the court shall require that any person who has been convicted [of]
    43  or adjudicated a youthful offender for a violation of  subdivision  two,
    44  two-a [or], three or four-a of section eleven hundred ninety-two of this
    45  article,  or any crime defined by this chapter or the penal law of which
    46  an alcohol-related violation of any provision of section eleven  hundred
    47  ninety-two of this article is an essential element, [to] shall not oper-
    48  ate  a motor vehicle without a functioning ignition interlock device and
    49  shall install and maintain, as a condition of plea, sentence,  probation
    50  or  conditional  discharge,  a  functioning ignition interlock device in
    51  accordance with the provisions of this section and,  as  applicable,  in
    52  accordance  with the provisions of subdivisions one and one-a of section
    53  eleven hundred ninety-three of  this  article;  provided,  however,  the
    54  court  may  not authorize the operation of a motor vehicle by any person
    55  whose license or privilege to operate a motor vehicle has  been  revoked
    56  except as provided herein. For any such individual subject to a sentence
        S. 775--A                          10

     1  of  probation,  installation  and maintenance of such ignition interlock
     2  device shall be a condition of probation.
     3    (b)  Nothing  contained  in  this section shall prohibit a court, upon
     4  application by a probation department, from modifying the conditions  of
     5  probation  of  any  person convicted of any violation set forth in para-
     6  graph (a) of this subdivision  prior  to  the  effective  date  of  this
     7  section,  to  require  the installation and maintenance of a functioning
     8  ignition interlock device, and such person shall thereafter  be  subject
     9  to the provisions of this section.
    10    [(c)  Nothing  contained  in  this  section shall authorize a court to
    11  sentence any person to a period of probation  or  conditional  discharge
    12  for  the  purpose  of  subjecting  such person to the provisions of this
    13  section, unless such person would have otherwise been so eligible for  a
    14  sentence of probation or conditional discharge.]
    15    3. Conditions. (a) [Notwithstanding any other provision of law] Except
    16  as otherwise provided for sentences imposed pursuant to paragraph (g) of
    17  subdivision  one of section eleven hundred ninety-three of this article,
    18  the commissioner may grant a post-revocation conditional license, as set
    19  forth in paragraph (b) of this subdivision, to a  person  who  has  been
    20  convicted of a violation of subdivision two, two-a [or], three or four-a
    21  of  section  eleven  hundred ninety-two of this article and who has been
    22  sentenced to a period of probation or  conditional  discharge,  provided
    23  the person has satisfied the minimum period of license revocation estab-
    24  lished  by  law  and the commissioner has been notified that such person
    25  may operate only a motor vehicle equipped with  a  functioning  ignition
    26  interlock  device.    No  such  request  shall  be made nor shall such a
    27  license be granted, however, if such person has been found by a court to
    28  have committed a violation of section five hundred eleven of this  chap-
    29  ter  during  the  license revocation period or deemed by a court to have
    30  violated any condition of probation or conditional discharge  set  forth
    31  by  the  court  relating  to  the  operation  of  a motor vehicle or the
    32  consumption of alcohol. In exercising discretion relating to  the  issu-
    33  ance  of a post-revocation conditional license pursuant to this subdivi-
    34  sion, the commissioner shall not deny such issuance  based  solely  upon
    35  the  number  of convictions for violations of any subdivision of section
    36  eleven hundred ninety-two of this article committed by such person with-
    37  in the ten years prior to application for such license. Upon the  termi-
    38  nation  of  the  period of probation or conditional discharge set by the
    39  court, the person may apply to the commissioner  for  restoration  of  a
    40  license  or privilege to operate a motor vehicle in accordance with this
    41  chapter.
    42    (b) Notwithstanding any inconsistent  provision  of  this  chapter,  a
    43  post-revocation conditional license granted pursuant to paragraph (a) of
    44  this  subdivision shall be valid only for use by the holder thereof, (1)
    45  [enroute] en route to and from the holder's place of employment, (2)  if
    46  the  holder's  employment requires the operation of a motor vehicle then
    47  during the hours thereof, (3) [enroute] en route to and from a class  or
    48  course  at  an  accredited  school,  college or university or at a state
    49  approved institution of vocational or technical  training,  (4)  to  and
    50  from court ordered probation activities, (5) to and from a motor vehicle
    51  office for the transaction of business relating to such license, (6) for
    52  a  three hour consecutive daytime period, chosen by the department, on a
    53  day during which the participant is not engaged in usual  employment  or
    54  vocation,  (7)  [enroute]  en route to and from a medical examination or
    55  treatment as part of a necessary medical treatment for such  participant
    56  or  member  of  the  participant's  household, as evidenced by a written
        S. 775--A                          11

     1  statement to that effect  from  a  licensed  medical  practitioner,  (8)
     2  [enroute]  en  route  to  and  from  a  class or an activity which is an
     3  authorized part of the alcohol and drug rehabilitation  program  and  at
     4  which  participant's  attendance is required, and (9) [enroute] en route
     5  to and from a place, including a school, at which a child or children of
     6  the participant are cared for on a regular basis and which is  necessary
     7  for the participant to maintain such participant's employment or enroll-
     8  ment  at  an  accredited  school,  college  or  university or at a state
     9  approved institution of vocational or technical training.
    10    (c) The post-revocation conditional license described in this subdivi-
    11  sion may be revoked by the commissioner for sufficient  cause  including
    12  but not limited to, failure to comply with the terms of the condition of
    13  probation or conditional discharge set forth by the court, conviction of
    14  any traffic offense other than one involving parking, stopping or stand-
    15  ing [or], conviction of any alcohol or drug related offense, misdemeanor
    16  or  felony,  any  violation  of this article with respect to operating a
    17  motor vehicle without  a  functioning  ignition  interlock  device  when
    18  required  to  do  so,  or failure to install or maintain a court ordered
    19  ignition interlock device.
    20    (d) Nothing contained herein shall prohibit the court from  requiring,
    21  as  a  condition of probation or conditional discharge, the installation
    22  of a functioning ignition interlock device in any vehicle owned or oper-
    23  ated by a person sentenced for a violation of  subdivision  two,  two-a,
    24  [or] three or four-a of section eleven hundred ninety-two of this [chap-
    25  ter]  article,  or any crime defined by this chapter or the penal law of
    26  which an alcohol-related violation of any provision  of  section  eleven
    27  hundred ninety-two of this [chapter] article is an essential element, if
    28  the  court in its discretion, determines that such a condition is neces-
    29  sary to ensure the public safety. Imposition of  an  ignition  interlock
    30  condition  shall  in  no  way  limit the effect of any period of license
    31  suspension or revocation set forth by the commissioner or the court.
    32    (e) Nothing contained herein shall prevent the court from applying any
    33  other conditions of probation or conditional discharge allowed  by  law,
    34  including treatment for alcohol or drug abuse, restitution and community
    35  service.
    36    (f) The commissioner shall note on the operator's record of any person
    37  restricted  pursuant  to  this  section  that,  in addition to any other
    38  restrictions, conditions or limitations, such person may operate only  a
    39  motor vehicle equipped with an ignition interlock device.
    40    4.  Proof  of  compliance  and recording of condition.   (a) Following
    41  imposition by the court of the use of an ignition interlock device as  a
    42  condition plea, sentence, of probation or conditional discharge it shall
    43  require  the  person to provide proof of compliance with this section to
    44  the court and the probation  department  or  other  monitor  where  such
    45  person is under probation or conditional discharge supervision.  A claim
    46  by  such  person  that  he  or  she has good cause for not installing an
    47  ignition interlock device shall be  made  to  the  court  at  or  before
    48  sentencing,  in  writing in the form of a sworn affidavit signed by such
    49  person asserting under oath that: (1) he or she is not the registered or
    50  titled owner of any motor vehicle and will not operate any motor vehicle
    51  during the period of restriction; and (2) that such person does not have
    52  access to the vehicle operated  by  such  person  at  the  time  of  the
    53  violation  of section eleven hundred ninety-two of this article; and (c)
    54  that the registered owner of that vehicle or any vehicle  registered  to
    55  such person's household will not give consent for the installation of an
    56  interlock  device  on  his or her vehicle. The affidavit shall include a
        S. 775--A                          12

     1  statement regarding whether such person owned any motor vehicle  on  the
     2  date of the underlying violation of section eleven hundred ninety-two of
     3  this  article  and  whether  ownership of any of those vehicles has been
     4  transferred  to another party by sale, gift or any other means since the
     5  date of said violation. The affidavit shall  also  include  a  statement
     6  from  such person that he or she has not and will not transfer ownership
     7  of any vehicle to evade installation of an  ignition  interlock  device,
     8  the  address  of  such  person's employment, if applicable, and how such
     9  person  intends  to  travel  to  that  location  during  the  period  of
    10  restriction.  The  person  also  may include any other facts and circum-
    11  stances he or she believes to be relevant to the claim  of  good  cause.
    12  The  court  shall make a finding whether good cause exists on the record
    13  and, if good cause shall be found, issue such finding in writing  to  be
    14  filed  by  such  person  with  the  probation department or the ignition
    15  interlock monitor, as appropriate. In the event the  court  denies  such
    16  person's  claim  of  good cause on the basis of the affidavit filed with
    17  the court, such persons shall be given an opportunity to be heard.  Such
    18  person  shall also be permitted to waive the opportunity to be heard, if
    19  he or she chooses to do so. If  [the]  a  person  shall  be  ordered  to
    20  install and maintain an ignition interlock device, and such person fails
    21  to provide for such proof of installation, absent a finding by the court
    22  of good cause for that failure which is entered in the record, the court
    23  may  revoke,  modify, or terminate the person's sentence of probation or
    24  conditional discharge as provided under law.  [Good cause may include  a
    25  finding  that  the  person  is  not the owner of a motor vehicle if such
    26  person asserts under oath that such person is not the owner of any motor
    27  vehicle and that he or she will not operate any motor vehicle during the
    28  period of interlock restriction except as may  be  otherwise  authorized
    29  pursuant  to  law.]  "Owner"  shall have the same meaning as provided in
    30  section one hundred twenty-eight of this chapter.
    31    (b) When a court imposes the condition specified in subdivision one of
    32  this section, the court shall notify the commissioner in such manner  as
    33  the  commissioner  may  prescribe,  and the commissioner shall note such
    34  condition on the operating record of the person subject to  such  condi-
    35  tions.
    36    5. Cost, installation and maintenance.  (a) The cost of installing and
    37  maintaining  the  ignition interlock device shall be borne by the person
    38  subject to such condition unless the court  determines  such  person  is
    39  financially  unable  to  afford  such  cost  whereupon  such cost may be
    40  imposed pursuant to a payment plan or waived.   In  the  event  of  such
    41  waiver,  the  cost of the device shall be borne in accordance with regu-
    42  lations issued under paragraph (g) of subdivision one of section  eleven
    43  hundred ninety-three of this article or pursuant to such other agreement
    44  as  may  be entered into for provision of the device. Such cost shall be
    45  considered a fine for the purposes of subdivision five of section 420.10
    46  of the criminal procedure law. Such cost shall not  replace,  but  shall
    47  instead be in addition to, any fines, surcharges, or other costs imposed
    48  pursuant to this chapter or other applicable laws.
    49    (b)  The  installation  and  service  provider  of the device shall be
    50  responsible for the installation, calibration, and maintenance  of  such
    51  device.
    52    (c)  Failure  to  install such device, failure to appear for a service
    53  visit or failure to comply with service instructions or circumvention of
    54  or tampering with the device, in violation of regulations promulgated by
    55  the division of criminal justice services, shall constitute a  violation
        S. 775--A                          13

     1  of  the  conditions  of  a  person's  sentence, probation or conditional
     2  discharge.
     3    §  6.  Paragraph  (k-1) of subdivision 2 of section 65.10 of the penal
     4  law, as amended by chapter 669 of the laws of 2007, is amended  to  read
     5  as follows:
     6    (k-1) Install and maintain a functioning ignition interlock device, as
     7  that  term  is  defined in section one hundred nineteen-a of the vehicle
     8  and traffic law, in any vehicle owned or operated by the  defendant  [if
     9  the  court  in its discretion determines that such a condition is neces-
    10  sary to ensure the public safety. The court may require  such  condition
    11  only  where  a  person  has been convicted of a violation of subdivision
    12  two, two-a or three of section eleven hundred ninety-two of the  vehicle
    13  and  traffic law, or any crime defined by the vehicle and traffic law or
    14  this chapter of which an alcohol-related violation of any  provision  of
    15  section  eleven  hundred ninety-two of the vehicle and traffic law is an
    16  essential element. The offender shall be required], provided  the  court
    17  shall  require  the defendant to install and operate the ignition inter-
    18  lock device [only] in accordance with the provisions of paragraphs  (g),
    19  (h),  (j)  and  (l) of subdivision one of section eleven hundred ninety-
    20  three and section eleven hundred ninety-eight of the vehicle and traffic
    21  law.
    22    § 7. The division of  criminal  justice  services  is  authorized  and
    23  directed  to compile and publish annually a report on its website of the
    24  total number of repeat convictions with respect to violations of section
    25  1192 of the vehicle and traffic law for the five  years  succeeding  the
    26  effective  date  of this act, and shall also include the total number of
    27  repeat convictions for the five years preceding the  effective  date  in
    28  such  report. The division is authorized and directed to coordinate with
    29  any other agency, authority, department, division, bureau, or  political
    30  subdivision  to  compile  this information, including without limitation
    31  the governor's highway traffic safety committee.
    32    § 8. The commissioner of the division of criminal justice services, in
    33  consultation with the commissioner of the department of motor  vehicles,
    34  shall  promulgate  any  rules or regulations necessary to effectuate the
    35  provisions of this act.
    36    § 9. This act shall take effect on the first of November next succeed-
    37  ing the date on which it shall have become  a  law,  provided,  however,
    38  that  the amendments to section 1198 of the vehicle and traffic law made
    39  by section five of this act shall not affect the repeal of such  section
    40  and shall be deemed repealed therewith.