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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

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-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                           775

                               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

        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. Paragraph (c) of subdivision 1 of section 1193 of the vehi-
     2  cle and traffic law, as amended by chapter 169 of the laws of 2013,  and
     3  subparagraph  (ii-a)  as  added  by  chapter 191 of the laws of 2014, is
     4  amended to read as follows:
     5    (c) Felony offenses. (i) A  person  who  operates  a  vehicle  (A)  in
     6  violation  of  subdivision  two, two-a, three, four or four-a of section
     7  eleven hundred ninety-two of this article after having been convicted of
     8  a violation of subdivision two, two-a, three, four  or  four-a  of  such
     9  section  or  of  vehicular  assault  in  the  second or first degree, as
    10  defined, respectively, in sections  120.03  and  120.04  and  aggravated
    11  vehicular  assault as defined in section 120.04-a of the penal law or of
    12  vehicular manslaughter in  the  second  or  first  degree,  as  defined,
    13  respectively,  in  sections  125.12  and 125.13 and aggravated vehicular
    14  homicide as defined in section 125.14 of such law, within the  preceding
    15  ten  years, or (B) in violation of paragraph (b) of subdivision two-a of
    16  section eleven hundred ninety-two of this article shall be guilty  of  a
    17  class  E  felony,  and  shall be punished by a fine of not less than one
    18  thousand dollars nor more than five thousand dollars or by a  period  of
    19  imprisonment  as  provided  in  the  penal law, or by both such fine and
    20  imprisonment.
    21    (ii) A person who operates a vehicle in violation of subdivision  two,
    22  two-a,  three,  four  or  four-a of section eleven hundred ninety-two of
    23  this article after having been convicted of a violation  of  subdivision
    24  two,  two-a,  three,  four  or  four-a  of  such section or of vehicular
    25  assault in the second or first  degree,  as  defined,  respectively,  in

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02546-01-3
        S. 775                              2

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

     1  thereto,  by participants in the ignition interlock program as set forth
     2  in section eleven hundred ninety-eight of this article.
     3    (2)  In  addition to the imposition of any fine or period of imprison-
     4  ment as set forth in  this  subdivision  and  to  any  license  sanction
     5  imposed  pursuant  to  subdivision  two of this section, the court shall
     6  sentence such person convicted of, or adjudicated  a  youthful  offender
     7  for,  a  violation of subdivision two, two-a, three or four-a of section
     8  eleven hundred ninety-two of this article to a period  of  probation  or
     9  conditional discharge, the conditions of which shall include the follow-
    10  ing:
    11    (i) an express prohibition on the operation of any motor vehicle with-
    12  out  a  functioning  ignition  interlock  device  for a period of twelve
    13  months or longer, pursuant to the requirements  of  this  paragraph  and
    14  paragraph (c) of subdivision one-a of this section; and
    15    (ii)  such  person  shall  install and maintain in accordance with the
    16  provisions of section eleven hundred ninety-eight of  this  article,  an
    17  ignition  interlock  device in any motor vehicle operated by such person
    18  for a period of twelve months or longer as  set  forth  in  subparagraph
    19  four  of  this  paragraph, including the one hundred eighty days after a
    20  license has been restored; provided, however,  a  declaration  from  the
    21  ignition  interlock  monitor  on  a  form  provided by the commissioner,
    22  certifying that such person has operated such motor vehicle free of  any
    23  violations as set forth in paragraph (j) of this subdivision for a peri-
    24  od  of  one hundred twenty consecutive days after the restoration of the
    25  operator's license, shall be deemed to have satisfied the conditions  of
    26  probation  or  conditional  discharge relating to the ignition interlock
    27  requirements set forth  in  this  paragraph.  The  period  of  interlock
    28  restriction  shall  commence  on  the  date that such ignition interlock
    29  device shall have been installed.
    30    (3) Notwithstanding the provisions of subparagraph two of  this  para-
    31  graph and subdivision two of this section relating to license sanctions,
    32  a court may, in its discretion, impose an alternative sentence upon such
    33  person convicted of, or adjudicated a youthful offender for, a violation
    34  of  subdivision  two,  two-a,  three or four-a of section eleven hundred
    35  ninety-two of  this  article,  a  period  of  probation  or  conditional
    36  discharge, the conditions of which shall include the following:
    37    (i)  an express prohibition from operating any vehicle without a func-
    38  tioning ignition interlock device for a period of twelve months or long-
    39  er pursuant to the requirements of this paragraph and paragraph  (c)  of
    40  subdivision one-a of this section; and
    41    (ii)  an  order  that  such person install and maintain, in accordance
    42  with the provisions of section eleven hundred ninety-eight of this arti-
    43  cle, an ignition interlock device in any motor vehicle operated by  such
    44  person for a period of twelve months or longer, as set forth in subpara-
    45  graph  four of this paragraph; provided, however, a declaration from the
    46  ignition interlock monitor on  a  form  provided  by  the  commissioner,
    47  certifying  that  such person has operated the motor vehicle free of any
    48  violations as set forth in paragraph (j) of this subdivision for a peri-
    49  od of three hundred consecutive days shall be deemed to  have  satisfied
    50  the  conditions  of  probation  or conditional discharge relating to the
    51  ignition interlock requirements as set  forth  in  this  paragraph.  The
    52  period  of  interlock  restriction  shall commence on the date that such
    53  ignition interlock device shall have  been  installed.  The  alternative
    54  sentence  set  forth herein shall not be imposed on any offender subject
    55  to the additional penalties set forth in paragraph (a) or (b) of  subdi-
    56  vision  one-a of this section or who shall have also been convicted of a
        S. 775                              4

     1  violation of any provision of article one hundred twenty or one  hundred
     2  twenty-five of the penal law involving the operation of a motor vehicle.
     3    (4)  When  a sentence is imposed pursuant to subparagraph two or three
     4  of this paragraph, in  no  event  shall  the  commissioner  restore  the
     5  license of any such person until the commissioner receives certification
     6  by  the  ignition interlock monitor that such person shall have operated
     7  the motor vehicle substantially free of  any  violations  set  forth  in
     8  paragraph  (j)  of  this  subdivision  for  the  applicable time periods
     9  imposed pursuant to subparagraphs two and three  of  this  paragraph.  A
    10  violation  of any of the provisions of paragraph (j) of this subdivision
    11  shall cause the respective period of operation to reset from the date of
    12  any such violation.
    13    (h) Driving while ability  impaired  by  alcohol;  ignition  interlock
    14  device  requirement.   Notwithstanding any other provision of law to the
    15  contrary, when a person is charged with a violation of subdivision  two,
    16  two-a,  three,  or  four-a  of section eleven hundred ninety-two of this
    17  article and a plea of guilty shall have been entered in satisfaction  of
    18  such  charge to a violation of subdivision one of section eleven hundred
    19  ninety-two of this article, the conditions of such plea shall include an
    20  express prohibition on the operation of  any  motor  vehicle  without  a
    21  functioning  ignition  interlock  device for a period of six months, and
    22  that such person shall install and maintain an ignition interlock device
    23  for a period of not less than six months on any motor  vehicle  operated
    24  by  such  person.   If the court accepts the plea to the reduced charge,
    25  the court shall sentence such person to a  conditional  discharge  which
    26  shall  include such requirement in addition to any fine required by this
    27  article and any other condition authorized by law.   A declaration  from
    28  the  ignition  interlock monitor on a form provided by the commissioner,
    29  certifying that such person has operated the motor vehicle free  of  any
    30  violations as set forth in paragraph (j) of this subdivision for a peri-
    31  od  of  ninety consecutive days after the date of installation, shall be
    32  deemed to have satisfied the conditions of such  plea  relating  to  the
    33  ignition  interlock requirements set forth in this paragraph. The period
    34  of interlock restriction shall be deemed to commence from the date  such
    35  ignition  interlock  device shall have been installed. If such person is
    36  found to have violated the terms of the use of such  ignition  interlock
    37  device  as  set  forth in paragraph (j) of this subdivision, such ninety
    38  day period shall reset from the date of any such violation.
    39    (i) Permanent revocation; ignition  interlock  requirement.  A  person
    40  subject  to  a  permanent  license revocation pursuant to a provision of
    41  this chapter or any rule promulgated pursuant to this chapter, when  the
    42  underlying  basis for the permanent revocation relates to two or more of
    43  violations of section eleven hundred ninety-two of this  article  and/or
    44  refusal  to submit to a chemical test pursuant to section eleven hundred
    45  ninety-four of this article, such person shall be entitled to a post-re-
    46  vocation conditional license provided that the person has not within the
    47  past twenty-five years been convicted of  a  violation  of  article  one
    48  hundred  twenty  or  article  one  hundred  twenty-five of the penal law
    49  related to the operation of a motor vehicle, and  the  person  has  been
    50  subject  to  a  license  revocation for not less than five years and has
    51  not, during that period, been convicted of a violation of  this  chapter
    52  regarding  the  operation  of  a  motor  vehicle.  Upon application, the
    53  commissioner shall provide such applicant with a post-revocation  condi-
    54  tional license that will include the following conditions:
        S. 775                              5

     1    (1) an express prohibition on the operation of any motor vehicle with-
     2  out  a functioning ignition interlock device for a period of twenty-four
     3  months as set forth in this paragraph; and
     4    (2)  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  twenty-four  months.    There  shall  be  a  rebuttable
     8  presumption of rehabilitation for the purpose of petitioning the commis-
     9  sioner  for  restoration  of  the  operator's license to operate a motor
    10  vehicle upon a declaration from the ignition  interlock  monitor,  on  a
    11  form provided by the commissioner, certifying that such person has oper-
    12  ated  such motor vehicle free of any violations of this chapter, except-
    13  ing violations related to standing, stopping or parking,  and  has  been
    14  substantially  devoid  of  any  violations set forth in paragraph (j) of
    15  this subdivision during the post-revocation conditional license  period.
    16  A  violation  of  section  five  hundred  eleven  of  this  chapter, any
    17  provision of section eleven  hundred  ninety-two  of  this  article,  or
    18  refusal  to submit to a chemical test pursuant to section eleven hundred
    19  ninety-four of  this  article  during  the  post-revocation  conditional
    20  license  period will result in immediate revocation of such license. The
    21  period of interlock restriction shall commence on  the  date  that  such
    22  ignition interlock device shall have been installed.
    23    (j)  Violations  of  ignition  interlock requirements. For purposes of
    24  paragraphs (g) and (h) of  this  subdivision,  the  following  shall  be
    25  deemed a violation of the ignition interlock device requirements:
    26    (1)  any  violation  of  the provisions of subdivision nine of section
    27  eleven hundred ninety-eight of this article; or
    28    (2) a certified violation on a form provided by the commissioner  that
    29  such person has:
    30    (i) attempted to start his or her vehicle with a blood alcohol concen-
    31  tration  level of .04 or more, unless a subsequent test performed within
    32  ten minutes thereafter registers a  blood  alcohol  concentration  level
    33  lower  than  .04  and  the digital image provided confirms that the same
    34  person provided both samples;
    35    (ii) failed to take any random test, unless a review  of  the  digital
    36  image  confirms  that such vehicle was not occupied by the driver at the
    37  time of the missed test;
    38    (iii) failed to pass any random re-test with a blood  alcohol  concen-
    39  tration level of .025 or lower, unless a subsequent test performed with-
    40  in  ten minutes registers a blood alcohol concentration level lower than
    41  .025, and the digital image confirms that the same person provided  both
    42  samples; or
    43    (iv)  failed  to  appear  at the ignition interlock device vendor when
    44  required for maintenance, repair, calibration,  monitoring,  inspection,
    45  or  replacement  of  such  device.  When  applicable,  a  certificate of
    46  violation shall be accompanied by a contemporaneous digital image  veri-
    47  fying the identity of the violator.
    48    (k)  Ignition  interlock  device  requirements; terms of imprisonment.
    49  When a sentence imposed pursuant to this subdivision includes a term  of
    50  imprisonment,  the  satisfaction  of such term of imprisonment shall not
    51  reduce or otherwise limit the requirements set forth in paragraph (g) of
    52  this subdivision.
    53    (l) Demonstration of regular and consistent use. During the period  of
    54  authorized  use  of  a  motor  vehicle with an ignition interlock device
    55  pursuant to the provisions of this subdivision, the person so authorized
        S. 775                              6

     1  shall demonstrate regular and consistent use of the  ignition  interlock
     2  device.
     3    (m)  A  person  who  has successfully satisfied the ignition interlock
     4  requirements set forth in paragraph (g) or (h) of this subdivision shall
     5  no longer be subject to the provisions of section eleven  hundred  nine-
     6  ty-nine of this article relating to the driver responsibility assessment
     7  and  any  fee  paid  by  such  person  pursuant to such section shall be
     8  returned by the commissioner upon satisfactory proof of compliance.
     9    (n) The office of probation and correctional alternatives shall recom-
    10  mend to the commissioner of the division of  criminal  justice  services
    11  regulations governing the monitoring of compliance by persons ordered to
    12  install and maintain ignition interlock devices to provide standards for
    13  monitoring  by  departments  of probation, and options for monitoring of
    14  compliance by such persons, that counties may adopt as an alternative to
    15  monitoring by a department of probation.
    16    § 3. Paragraph (c) of subdivision 1-a of section 1193 of  the  vehicle
    17  and  traffic  law,  as  amended  by  chapter 669 of the laws of 2007, is
    18  amended to read as follows:
    19    (c) A court sentencing a person pursuant to paragraph (a)  or  (b)  of
    20  this  subdivision shall: (i) order, as a condition of such sentence, the
    21  installation of  an  ignition  interlock  device  approved  pursuant  to
    22  section eleven hundred ninety-eight of this article in any motor vehicle
    23  [owned  or]  operated  by  the  person  so sentenced. Such devices shall
    24  remain installed during any period of license revocation required to  be
    25  imposed  pursuant  to  paragraph (b) of subdivision two of this section,
    26  and, upon the termination of such revocation period, for  an  additional
    27  period  as determined by the court or as otherwise provided in paragraph
    28  (g) of subdivision one of this section; and (ii) order that such  person
    29  receive  an assessment of the degree of their alcohol or substance abuse
    30  and dependency pursuant to the  provisions  of  section  eleven  hundred
    31  ninety-eight-a  of  this  article.   Where such assessment indicates the
    32  need for treatment, such court is authorized to impose  treatment  as  a
    33  condition of such sentence except that such court shall impose treatment
    34  as  a  condition  of  a  sentence  of probation or conditional discharge
    35  pursuant to the  provisions  of  subdivision  three  of  section  eleven
    36  hundred ninety-eight-a of this article. Any person ordered to install an
    37  ignition interlock device pursuant to this paragraph shall be subject to
    38  paragraph  (g)  of subdivision one of this section and the provisions of
    39  subdivisions four, five, seven, eight and nine of section eleven hundred
    40  ninety-eight of this article.
    41    § 4. Subdivisions 1, 2, 3, 4 and 5 of section 1198 of the vehicle  and
    42  traffic  law, subdivisions 1, 2, 3, 4 and paragraph (a) of subdivision 5
    43  as amended by chapter 496 of the laws of 2009, paragraph (a) of subdivi-
    44  sion 4 as amended by chapter 169 of the laws of 2013, and subdivision  5
    45  as  amended  by  chapter 669 of the laws of 2007, are amended to read as
    46  follows:
    47    1. Applicability. The provisions of this section shall apply  through-
    48  out the state to each person required or otherwise ordered by a court as
    49  a condition of sentence, plea, probation or conditional discharge, which
    50  shall  prohibit  the  operation of a motor vehicle without a functioning
    51  ignition interlock device and requires such person to install and [oper-
    52  ate] maintain an ignition interlock device in any vehicle [which  he  or
    53  she owns or operates] operated by such person.
    54    2.  Requirements. (a) In addition to any other penalties prescribed by
    55  law, the court shall require that any person who has been convicted [of]
    56  or adjudicated a youthful offender for a violation of  subdivision  two,
        S. 775                              7

     1  two-a [or], three or four-a of section eleven hundred ninety-two of this
     2  article,  or any crime defined by this chapter or the penal law of which
     3  an alcohol-related violation of any provision of section eleven  hundred
     4  ninety-two of this article is an essential element, [to] shall not oper-
     5  ate  a motor vehicle without a functioning ignition interlock device and
     6  shall install and maintain, as a condition of plea, sentence,  probation
     7  or  conditional  discharge,  a  functioning ignition interlock device in
     8  accordance with the provisions of this section and,  as  applicable,  in
     9  accordance  with the provisions of subdivisions one and one-a of section
    10  eleven hundred ninety-three of  this  article;  provided,  however,  the
    11  court  may  not authorize the operation of a motor vehicle by any person
    12  whose license or privilege to operate a motor vehicle has  been  revoked
    13  except as provided herein. For any such individual subject to a sentence
    14  of  probation,  installation  and maintenance of such ignition interlock
    15  device shall be a condition of probation.
    16    (b) Nothing contained in this section shall  prohibit  a  court,  upon
    17  application  by a probation department, from modifying the conditions of
    18  probation of any person convicted of any violation set  forth  in  para-
    19  graph  (a)  of  this  subdivision  prior  to  the effective date of this
    20  section, to require the installation and maintenance  of  a  functioning
    21  ignition  interlock  device, and such person shall thereafter be subject
    22  to the provisions of this section.
    23    [(c) Nothing contained in this section  shall  authorize  a  court  to
    24  sentence  any  person  to a period of probation or conditional discharge
    25  for the purpose of subjecting such person  to  the  provisions  of  this
    26  section,  unless such person would have otherwise been so eligible for a
    27  sentence of probation or conditional discharge.]
    28    3. Conditions. (a) [Notwithstanding any other provision of law] Except
    29  as otherwise provided for sentences imposed pursuant to paragraph (g) of
    30  subdivision one of section eleven hundred ninety-three of this  chapter,
    31  the commissioner may grant a post-revocation conditional license, as set
    32  forth  in  paragraph  (b)  of this subdivision, to a person who has been
    33  convicted of a violation of subdivision two, two-a [or], three or four-a
    34  of section eleven hundred ninety-two of this article and  who  has  been
    35  sentenced  to  a  period of probation or conditional discharge, provided
    36  the person has satisfied the minimum period of license revocation estab-
    37  lished by law and the commissioner has been notified  that  such  person
    38  may  operate  only  a motor vehicle equipped with a functioning ignition
    39  interlock device.   No such request shall  be  made  nor  shall  such  a
    40  license be granted, however, if such person has been found by a court to
    41  have  committed a violation of section five hundred eleven of this chap-
    42  ter during the license revocation period or deemed by a  court  to  have
    43  violated  any  condition of probation or conditional discharge set forth
    44  by the court relating to  the  operation  of  a  motor  vehicle  or  the
    45  consumption  of  alcohol. In exercising discretion relating to the issu-
    46  ance of a post-revocation conditional license pursuant to this  subdivi-
    47  sion,  the  commissioner  shall not deny such issuance based solely upon
    48  the number of convictions for violations of any subdivision  of  section
    49  eleven hundred ninety-two of this article committed by such person with-
    50  in  the ten years prior to application for such license. Upon the termi-
    51  nation of the period of probation or conditional discharge  set  by  the
    52  court,  the  person  may  apply to the commissioner for restoration of a
    53  license or privilege to operate a motor vehicle in accordance with  this
    54  chapter.
    55    (b)  Notwithstanding  any  inconsistent  provision  of this chapter, a
    56  post-revocation conditional license granted pursuant to paragraph (a) of
        S. 775                              8

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

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

     1  as  may  be entered into for provision of the device. Such cost shall be
     2  considered a fine for the purposes of subdivision five of section 420.10
     3  of the criminal procedure law. Such cost shall not  replace,  but  shall
     4  instead be in addition to, any fines, surcharges, or other costs imposed
     5  pursuant to this chapter or other applicable laws.
     6    (b)  The  installation  and  service  provider  of the device shall be
     7  responsible for the installation, calibration, and maintenance  of  such
     8  device.
     9    (c)  Failure  to  install such device, failure to appear for a service
    10  visit or failure to comply with service instructions or circumvention of
    11  or tampering with the device, in violation of regulations promulgated by
    12  the division of criminal justice services, shall constitute a  violation
    13  of  the  conditions  of  a  person's  sentence, probation or conditional
    14  discharge.
    15    § 5. Paragraph (k-1) of subdivision 2 of section 65.10  of  the  penal
    16  law,  as  amended by chapter 669 of the laws of 2007, is amended to read
    17  as follows:
    18    (k-1) Install and maintain a functioning ignition interlock device, as
    19  that term is defined in section one hundred nineteen-a  of  the  vehicle
    20  and traffic law, in any vehicle [owned or] operated by the defendant [if
    21  the  court  in its discretion determines that such a condition is neces-
    22  sary to ensure the public safety. The court may require  such  condition
    23  only  where  a  person  has been convicted of a violation of subdivision
    24  two, two-a or three of section eleven hundred ninety-two of the  vehicle
    25  and  traffic law, or any crime defined by the vehicle and traffic law or
    26  this chapter of which an alcohol-related violation of any  provision  of
    27  section  eleven  hundred ninety-two of the vehicle and traffic law is an
    28  essential element. The offender shall be required], provided  the  court
    29  shall  require  the defendant to install and operate the ignition inter-
    30  lock device [only] in accordance with the provisions of paragraphs  (g),
    31  (h), (j), (k) and (l) of subdivision one of section eleven hundred nine-
    32  ty-three  and  section  eleven  hundred  ninety-eight of the vehicle and
    33  traffic law.
    34    § 6. The division of  criminal  justice  services  is  authorized  and
    35  directed  to compile and publish annually a report on its website of the
    36  total number of repeat convictions with respect to violations of section
    37  1192 of the vehicle and traffic law for the five  years  succeeding  the
    38  effective  date  of this act, and shall also include the total number of
    39  repeat convictions for the five years preceding the  effective  date  in
    40  such  report. The division is authorized and directed to coordinate with
    41  any other agency, authority, department, division, bureau, or  political
    42  subdivision  to  compile  this information, including without limitation
    43  the governor's highway traffic safety committee.
    44    § 7. The commissioner of the division of criminal justice services, in
    45  consultation with the commissioner of the department of motor  vehicles,
    46  shall  promulgate  any  rules or regulations necessary to effectuate the
    47  provisions of this act.
    48    § 8. This act shall take effect on the first of November next succeed-
    49  ing the date on which it shall have become  a  law,  provided,  however,
    50  that  the amendments to section 1198 of the vehicle and traffic law made
    51  by section four of this act shall not affect the repeal of such  section
    52  and shall be deemed repealed therewith.