Bill Text: NY S05671 | 2019-2020 | General Assembly | Amended


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 2-0)

Status: (Engrossed - Dead) 2020-07-21 - referred to transportation [S05671 Detail]

Download: New_York-2019-S05671-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         5671--A
            Cal. No. 1080

                               2019-2020 Regular Sessions

                    IN SENATE

                                      May 10, 2019
                                       ___________

        Introduced  by Sen. MARTINEZ -- read twice and ordered printed, and when
          printed to be committed to the Committee on Transportation -- reported
          favorably from said committee, ordered to  first  and  second  report,
          ordered  to  a third reading, amended and ordered reprinted, retaining
          its place in the order of third reading

        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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11389-02-9

        S. 5671--A                          2

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

        S. 5671--A                          3

     1  eleven  hundred ninety-two of this article shall have occurred who moni-
     2  tors compliance with the provisions of section  eleven  hundred  ninety-
     3  eight of this article and the concurrent regulations related thereto, by
     4  participants in the ignition interlock program.
     5    (2)  In  addition to the imposition of any fine or period of imprison-
     6  ment as set forth in  this  subdivision  and  to  any  license  sanction
     7  imposed  pursuant  to  subdivision  two of this section, the court shall
     8  sentence such person convicted of, or adjudicated  a  youthful  offender
     9  for,  a  violation of subdivision two, two-a, three or four-a of section
    10  eleven hundred ninety-two of this article to a period  of  probation  or
    11  conditional discharge, the conditions of which shall include the follow-
    12  ing:
    13    (i) an express prohibition on the operation of any motor vehicle with-
    14  out  a  functioning  ignition  interlock  device  for a period of twelve
    15  months or longer, as set forth in this paragraph or in paragraph (c)  of
    16  subdivision one-a of this section; and
    17    (ii)  such  person  shall  install and maintain in accordance with the
    18  provisions of section eleven hundred ninety-eight of  this  article,  an
    19  ignition  interlock device in the motor vehicle most frequently operated
    20  by such person for a period of twelve months or longer as set  forth  in
    21  subparagraph  three  of this paragraph, including the one hundred eighty
    22  days after a license has been restored. A declaration from the  ignition
    23  interlock  monitor  on  a  form provided by the commissioner, certifying
    24  that such person has operated such motor vehicle free of any  violations
    25  as  set  forth  in paragraph (i) of this subdivision for a period of one
    26  hundred twenty consecutive days after the restoration of the  operator's
    27  license,  shall  be deemed to have satisfied the conditions of probation
    28  or conditional discharge relating to the ignition interlock requirements
    29  set forth in this paragraph. The period of interlock  restriction  shall
    30  commence on the date that such ignition interlock device shall have been
    31  installed.
    32    (3)  Notwithstanding  the provisions of subparagraph two of this para-
    33  graph and subdivision two of this section relating to license sanctions,
    34  a court may impose an alternative sentence upon  such  person  convicted
    35  of,  or  adjudicated a youthful offender for, a violation of subdivision
    36  two, two-a, three or four-a of section eleven hundred ninety-two of this
    37  article, a period of probation or conditional discharge, the  conditions
    38  of which shall include the following:
    39    (i)  a  prohibition  from  operating any vehicle without a functioning
    40  ignition interlock device for a period of twelve months or longer as set
    41  forth in subparagraph four of this paragraph; and
    42    (ii) an order that such person install  and  maintain,  in  accordance
    43  with the provisions of section eleven hundred ninety-eight of this arti-
    44  cle,  an  ignition  interlock device in the motor vehicle most regularly
    45  operated by such person for a period of twelve months.    A  declaration
    46  from  the  ignition  interlock monitor on a form provided by the commis-
    47  sioner, certifying that such person has operated the motor vehicle  free
    48  of  any violations as set forth in paragraph (i) of this subdivision for
    49  a period of three hundred consecutive  days  shall  be  deemed  to  have
    50  satisfied  the conditions of probation or conditional discharge relating
    51  to the ignition interlock requirements as set forth in  this  paragraph.
    52  The 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 subdivision one-a of this
    56  section or who shall have also been convicted  of  a  violation  of  any

        S. 5671--A                          4

     1  provision  of  article  one hundred twenty or one hundred twenty five of
     2  the penal law involving the operation of a 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 free of any violations set forth in paragraph  (i)  of
     8  this  subdivision for a period of one hundred twenty days for a sentence
     9  imposed pursuant to subparagraph two of this paragraph and for a  period
    10  of  three  hundred  consecutive  days for a sentence imposed pursuant to
    11  subparagraph three  of  this  paragraph.  A  violation  of  any  of  the
    12  provisions  of paragraph (i) of this subdivision shall cause the respec-
    13  tive period of operation to reset from the date of any such violation.
    14    (h) Driving while ability  impaired  by  alcohol;  ignition  interlock
    15  device  requirement.   Notwithstanding any other provision of law to the
    16  contrary, when a person shall be charged with a violation of subdivision
    17  two, two-a, three, or four-a of section  eleven  hundred  ninety-two  of
    18  this  article  and a plea of guilty shall have been entered in satisfac-
    19  tion of such charge to a violation of subdivision one of section  eleven
    20  hundred  ninety-two  of  this article, the conditions of such plea shall
    21  include an express prohibition on the operation  of  any  motor  vehicle
    22  without  a  functioning  ignition  interlock  device for a period of six
    23  months, and such person shall install and maintain an ignition interlock
    24  device for a period of not less than six months  on  the  motor  vehicle
    25  operated most frequently by such person. A declaration from the ignition
    26  interlock  monitor  on  a  form provided by the commissioner, certifying
    27  that such person has operated the motor vehicle free of  any  violations
    28  as set forth in paragraph (i) of this subdivision for a period of ninety
    29  consecutive days after the date of installation, shall be deemed to have
    30  satisfied the conditions of such plea relating to the ignition interlock
    31  requirements  set  forth  in  this  paragraph.  The  period of interlock
    32  restriction shall be deemed to commence  from  the  date  such  ignition
    33  interlock  device  shall have been installed. If such person is found to
    34  have violated the terms of the use of such ignition interlock device  as
    35  set  forth  in paragraph (i) of this subdivision, such ninety day period
    36  shall reset from the date of any such violation.
    37    (i) Violations of ignition interlock  requirements.  For  purposes  of
    38  paragraphs  (g)  and  (h)  of  this  subdivision, the following shall be
    39  deemed a violation of the ignition interlock device requirements:
    40    (1) any violation of the provisions of  subdivision  nine  of  section
    41  eleven hundred ninety-eight of this chapter; or
    42    (2)  a certified violation on a form provided by the commissioner that
    43  such person has:
    44    (i) attempted to start his or her vehicle with a blood alcohol concen-
    45  tration level of .04 or more, unless a subsequent test performed  within
    46  ten  minutes  thereafter  registers  a blood alcohol concentration level
    47  lower than .04 and the digital image provided  confirms  that  the  same
    48  person provided both samples;
    49    (ii)  failed  to  take any random test, unless a review of the digital
    50  image confirms that such vehicle was not occupied by the driver  at  the
    51  time of the missed test;
    52    (iii)  failed  to pass any random re-test with a blood alcohol concen-
    53  tration level of .025 or lower, unless a subsequent test performed with-
    54  in ten minutes registers a blood alcohol concentration level lower  than
    55  .025,  and the digital image confirms that the same person provided both
    56  samples; or

        S. 5671--A                          5

     1    (iv) failed to appear at the ignition  interlock  device  vendor  when
     2  required  for  maintenance, repair, calibration, monitoring, inspection,
     3  or replacement of such device.  A  certificate  of  violation  shall  be
     4  accompanied by a contemporaneous digital image verifying the identity of
     5  the violator.
     6    (j)  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    (k) Demonstration of regular and consistent use. During the period  of
    12  authorized  use  of  a  motor  vehicle with an ignition interlock device
    13  pursuant to the provisions of this subdivision, the person so authorized
    14  shall demonstrate regular and consistent use of the  ignition  interlock
    15  device.
    16    (l) The office of probation and correctional alternatives shall recom-
    17  mend  to  the  commissioner of the division of criminal justice services
    18  regulations governing the monitoring of compliance by persons ordered to
    19  install and maintain ignition interlock devices to provide standards for
    20  monitoring by departments of probation, and options  for  monitoring  of
    21  compliance by such persons, that counties may adopt as an alternative to
    22  monitoring by a department of probation.
    23    §  3.  Paragraph (c) of subdivision 1-a of section 1193 of the vehicle
    24  and traffic law, as amended by chapter 669  of  the  laws  of  2007,  is
    25  amended to read as follows:
    26    (c)  A  court  sentencing a person pursuant to paragraph (a) or (b) of
    27  this subdivision shall: (i) order, as a condition of such sentence,  the
    28  installation  of  an  ignition  interlock  device  approved  pursuant to
    29  section eleven hundred ninety-eight of this article in [any]  the  motor
    30  vehicle  [owned or] most frequently operated by the person so sentenced.
    31  Such devices shall remain installed during any period of license revoca-
    32  tion required to be imposed pursuant to paragraph (b) of subdivision two
    33  of this section, and, upon the termination of  such  revocation  period,
    34  for  an  additional  period  as determined by the court, but in no event
    35  less than twelve months; and (ii) order  that  such  person  receive  an
    36  assessment of the degree of their alcohol or substance abuse and depend-
    37  ency pursuant to the provisions of section eleven hundred ninety-eight-a
    38  of  this  article.   Where such assessment indicates the need for treat-
    39  ment, such court is authorized to impose treatment  as  a  condition  of
    40  such  sentence except that such court shall impose treatment as a condi-
    41  tion of a sentence of probation or conditional discharge pursuant to the
    42  provisions of subdivision three of section eleven hundred ninety-eight-a
    43  of this article. Any person ordered to  install  an  ignition  interlock
    44  device  pursuant  to this paragraph shall be subject to paragraph (j) of
    45  subdivision one of this section and the provisions of subdivisions four,
    46  five, seven, eight and nine of section eleven  hundred  ninety-eight  of
    47  this article.
    48    §  4. Subdivisions 1, 2, 3, 4 and 5 of section 1198 of the vehicle and
    49  traffic law, subdivisions 1, 2, 3, 4 and paragraph (a) of subdivision  5
    50  as amended by chapter 496 of the laws of 2009, paragraph (a) of subdivi-
    51  sion  4 as amended by chapter 169 of the laws of 2013, and subdivision 5
    52  as amended by chapter 669 of the laws of 2007, are amended  to  read  as
    53  follows:
    54    1.  Applicability. The provisions of this section shall apply through-
    55  out the state to each person required or otherwise ordered by a court as
    56  a condition of sentence, plea, probation or conditional discharge, which

        S. 5671--A                          6

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

        S. 5671--A                          7

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

        S. 5671--A                          8

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

        S. 5671--A                          9

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