NEW YORK VEHICLE & TRAFFIC LAW
Section 1192. Operating a motor vehicle while under the influence of alcohol or drugs.
1. Driving while ability impaired. No person
shall operate a motor vehicle while the person`s ability to operate such
motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person
shall operate a motor vehicle while such person has .10 of one per centum
or more by weight of alcohol in the person`s blood as shown by chemical
analysis of such person`s blood, breath, urine or saliva, made pursuant
to the provisions of section eleven
hundred ninety-four of this article.
3. Driving while intoxicated. No person shall
operate a motor vehicle while in an intoxicated condition.
4. Driving
while ability impaired by drugs. No person shall operate a motor vehicle
while the person`s ability to operate such a motor vehicle is impaired
by the use of a drug as defined in this chapter.
5. Commercial motor vehicles: per se - level I.
Notwithstanding the provisions of section eleven hundred ninety-five of
this article, no person shall operate a commercial motor vehicle
while such person has .04 of one per centum or more but not more than .07
of one per centum by weight of alcohol in the person`s blood as shown by
chemical analysis of such person`s blood, breath, urine or saliva, made
pursuant to the provisions of section eleven
hundred ninety-four of this article; provided, however, nothing contained
in this subdivision shall prohibit the imposition of a charge of a violation
of subdivision one of this section, or of section eleven hundred ninety-two-a
of this article where a person under the age of twenty-one operates a commercial
motor vehicle where a chemical analysis of such person`s blood, breath,
urine, or saliva, made pursuant to the provisions of section eleven
hundred ninety-four of this article, indicates that such operator has
.02 of one per centum or more but less than .04 of one per centum by weight
of alcohol in such operator`s blood.
6. Commercial motor vehicles; per se - level
II. Notwithstanding the provisions of section eleven hundred ninety-five
of this article, no person shall operate a commercial motor vehicle while
such person has more than .07 of one per centum but less than .10 of one
per centum by weight of alcohol in the person`s blood as shown by chemical
analysis of such person`s blood, breath, urine or saliva, made pursuant
to the provisions of section eleven
hundred ninety-four of this article; provided, however, nothing contained
in this subdivision shall prohibit the imposition of a charge of a violation
of subdivision one of this section.
7. Where applicable. The provisions
of this section shall apply upon public highways, private roads open to
motor vehicle traffic and any other parking lot. For the purposes of this
section "parking lot" shall mean any area or areas of private property,
including a driveway, near or contiguous to and provided in connection
with premises and used as a means of access to and egress from a public
highway to such premises and having a capacity for the parking of four
or more motor vehicles. The provisions of this section shall not
apply to any area or areas of private property comprising all or part of
property on which is situated a one or two family residence.
8. Effect of prior out-of-state conviction.
A prior out-of-state conviction for operating a motor vehicle while under
the influence of alcohol or drugs shall be deemed to be a prior conviction
of a violation of subdivision one of this section for purposes of determining
penalties imposed under this section or for purposes of any administrative
action required to be taken pursuant to subdivision two of section
eleven hundred ninety-three of this article; provided, however, that
such conduct, had it occurred in this state, would have constituted a violation
of any of the provisions of this section. This subdivision shall
only apply to convictions occurring on or after November twenty-ninth,
nineteen hundred eighty-five.
8-a. Effect of prior finding of having consumed alcohol.
A prior finding that a person under the age of twenty-one has operated
a motor vehicle after having consumed alcohol pursuant to section eleven
hundred ninety-four-a of this article shall have the same effect as
a prior conviction of a violation of subdivision one of this section solely
for the purpose of determining the length of any license suspension or
revocation required to be imposed under any provision of this article,
provided that the subsequent offense is committed prior to the expiration
of the retention period for such prior offense or offenses set forth in
paragraph (k) of subdivision one of section two hundred one of this chapter.
9. Conviction of a different charge. A driver
may be convicted of a violation of subdivision one, two or three of this
section, notwithstanding that the charge laid before the court alleged
a violation of subdivision two or three of this section, and regardless
of whether or not such conviction is based on a plea of guilty.
10. Plea bargain limitations. (a) In any case
wherein the charge laid before the court alleges a violation of subdivision
two, three or four of this section, any plea of guilty thereafter entered
in satisfaction of such charge must include at least a plea of guilty to
the violation of the provisions of one of the subdivisions of this section,
other than subdivision five or six, and no other disposition by plea of
guilty to any other charge in satisfaction of such charge shall be authorized;
provided, however, if the district attorney, upon reviewing the available
evidence, determines that the charge of a violation of this section is
not warranted, such district attorney may consent, and the court may allow
a disposition by plea of guilty to another charge in satisfaction of such
charge; provided, however, in all such cases, the court shall set forth
upon the record the basis for such disposition. In any case wherein
the charge laid before the court alleges a violation of subdivision one
of this section and the operator was under the age of twenty-one at the
time of such violation, any plea of guilty thereafter entered in satisfaction
of such charge must include at least a plea of guilty to the violation
of such subdivision; provided, however, such charge may instead be satisfied
as provided in paragraph (c) of this subdivision, and, provided further
that, if the district attorney, upon reviewing the available evidence,
determines that the charge of a violation of subdivision one of this section
is not warranted, such district attorney may consent, and the court may
allow a disposition by plea of guilty to another charge in satisfaction
of such charge; provided, however, in all such cases, the court shall set
forth upon the record the basis for such disposition.
(b) In any case
wherein the charge laid before the court alleges a violation of subdivision
one or six of this section while operating a commercial motor vehicle,
any plea of guilty thereafter entered in satisfaction of such charge must
include at least a plea of guilty to the violation of the provisions of
one of the subdivisions of this section and no other disposition by plea
of guilty to any other charge in satisfaction of such charge shall be authorized;
provided, however, if the district attorney upon reviewing the available
evidence determines that the charge of a violation of this section is not
warranted, he may consent, and the court may allow, a disposition by plea
of guilty to another charge is satisfaction of such charge.
(c) Except as provided
in paragraph (b) of this subdivision, in any case wherein the charge laid
before the court alleges a violation of subdivision one of this section
by a person who was under the age of twenty-one at the time of commission
of the offense, the court, with the consent of both parties, may allow
the satisfaction of such charge by the defendant`s agreement to be
subject to action by the commissioner pursuant to section eleven
hundred ninety-four-a of this article. In any such case, the defendant
shall waive the right to a hearing under section eleven
hundred ninety-four-a of this article and such waiver shall have the
same force and effect as a finding of a violation of section eleven hundred
ninety-two-a of this article entered after a hearing conducted pursuant
to such section eleven hundred ninety-four-a. The defendant shall execute
such waiver in open court, and, if represented by counsel, in the
presence of his attorney, on a form to be provided by the commissioner,
which shall be forwarded by the court to the commissioner within ninety-six
hours. To be valid, such form shall, at a minimum, contain clear and conspicuous
language advising the defendant that a duly executed waiver: (i) has the
same force and effect as a guilty finding following a hearing pursuant
to section eleven hundred ninety-four-a of this article; (ii) shall subject
the defendant to the imposition of sanctions pursuant to such section eleven
hundred ninety-four-a; and (iii) may subject the defendant to increased
sanctions upon a subsequent violation of this section or section eleven
hundred ninety-two-a of this article. Upon receipt of a duly
executed waiver pursuant to this paragraph, the commissioner shall take
such administrative action and impose such sanctions as may be required
by section eleven hundred ninety-four-a of this article.
11. No person other than an operator of a commercial
motor vehicle may be charged with or convicted of a violation of subdivision
five or six of this section.
12. Driving while intoxicated or while ability impaired
by drugs--serious physical injury or death. In every case where a
person is charged with a violation of subdivision two, three or four of
this section, the law enforcement officer alleging such charge shall make
a clear notation in the "Description of Violation" section of a simplified
traffic information if, arising out of the same incident, someone other
than the person charged was killed or suffered serious physical injury
as defined in section 10.00 of the penal law; such notation shall be in
the form of a "D" if someone other than the person charged was killed and
such notation shall be in the form of a "S.P.I." if someone other than
the person charged suffered serious physical injury; provided, however,
that the failure to make such notation shall in no way affect a charge
for a violation of subdivision two, three or four of this section.
Section 1192-a. Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se.
No person under the age of twenty-one shall operate a motor vehicle
after having consumed alcohol as defined in this section. For purposes
of this section, a person under the age of twenty-one is deemed to have
consumed alcohol only if such person has .02 of one per centum or more
but not more than .07 of one per centum by weight of alcohol in the person`s
blood, as shown by chemical analysis of such person`s blood, breath, urine
or saliva, made pursuant to the provisions of section eleven hundred ninety-four
of this article. Any person who operates a motor vehicle in violation of
this section, and who is not charged with a violation of any subdivision
of section eleven hundred ninety-two of this article
arising out of the same incident shall be referred to the department for
action in accordance with the provisions of section eleven hundred ninety-four-a
of this article. Except as otherwise provided in subdivision five of section
eleven hundred ninety-two of this article, this section shall not apply
to a person who operates a commercial motor vehicle. Notwithstanding any
provision of law to the contrary, a finding that a person under the age
of twenty-one operated a motor vehicle after having consumed alcohol
in violation of this section is not a judgment of conviction for a crime
or any other offense.
1. Criminal penalties. (a) Driving while ability
impaired. A violation of subdivision one of section
eleven hundred ninety-two of this article shall be a traffic infraction
and shall be punishable by a fine of not less than three hundred dollars
nor more than five hundred dollars or by imprisonment in a penitentiary
or county jail for not more than fifteen days, or by both such fine and
imprisonment. A person who operates a vehicle in violation of such
subdivision after having been convicted of a violation of any subdivision
of section eleven hundred ninety-two of this article within the preceding
five years shall be punished by a fine of not less than five hundred dollars
nor more than seven hundred fifty dollars, or by imprisonment of not more
than thirty days in a penitentiary or county jail or by both such fine
and imprisonment. A person who operates a vehicle in violation of
such subdivision after having been convicted two or more times of a violation
of any subdivision of section eleven hundred ninety-two of this article
within the preceding ten years shall be guilty of a misdemeanor, and shall
be punished by a fine of not less than seven hundred fifty
dollars nor more than fifteen hundred dollars, or by imprisonment of not
more than one hundred eighty days in a penitentiary or county jail or by
both such fine and imprisonment.
(b) Driving
while intoxicated or while ability impaired by drugs; misdemeanor
offenses. A violation of subdivision two, three or four
of section eleven hundred ninety-two of this article shall be a misdemeanor
and shall be punishable by a fine of not less than five hundred dollars
nor more than one thousand dollars, or by imprisonment in a penitentiary
or county jail for not more than one year, or by both such fine and imprisonment.
(c) Felony offenses.
(i) A person who operates a vehicle in violation of subdivision
two, three or four of section eleven hundred ninety-two of this article
after having been convicted of a violation of subdivision two, three or
four of such section or of vehicular assault in the second or first degree,
as defined, respectively, in sections 120.03
and 120.04 of the penal law or of vehicular manslaughter in the second
or first degree, as defined, respectively, in sections 125.12
and 125.13 of such law, within the preceding ten years, shall be guilty
of a class
E felony, and shall be punished by a fine of not less than one thousand
dollars nor more than five thousand dollars or by a period of imprisonment
as provided in the penal law, or by both such fine and imprisonment.
(ii) A person who operates a vehicle in violation of subdivision two, three
or four of section eleven hundred ninety-two of this article after having
been convicted of a violation of subdivision two, three or four of such
section or of vehicular assault in the second or first degree, as defined,
respectively, in sections 120.03
and 120.04 of the penal law or of vehicular manslaughter in the second
or first degree, as defined, respectively, in sections 125.12
and 125.13 of such law, twice within the preceding ten years, shall
be guilty of a class D felony, and shall be punished by a fine of not less
than two thousand dollars nor more
than ten thousand dollars or by a period of imprisonment as provided
in the penal law, or by both such fine and imprisonment.
(d) Alcohol or drug related
offenses; special vehicles. (1) Except as provided in subparagraph four
of this paragraph, a violation of subdivision one, two, three or four of
section eleven hundred ninety-two of this article wherein the violator
is operating a taxicab as defined in section one hundred forty-eight-a
of this chapter, or livery as defined in section one hundred twenty-one-e
of this chapter, and such taxicab or livery is carrying a passenger for
compensation, or a truck with a GVWR of more than eighteen thousand pounds
but not more than twenty-six thousand pounds and which is not a commercial
motor vehicle shall be a misdemeanor punishable by a fine of not less than
five hundred dollars nor more than fifteen hundred dollars or by a period
of imprisonment as provided in the penal law, or by both such fine and
imprisonment.
(1-a) A violation of subdivision one of section eleven hundred ninety-two
of this article wherein the violator is operating a school bus as defined
in section one hundred forty-two of this chapter and such school bus is
carrying at least one student passenger shall be a misdemeanor punishable
by a fine of not less than five hundred dollars nor more than fifteen
hundred dollars or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment.
(2) A violation of subdivision five of section eleven hundred ninety-two
of this article shall be a traffic infraction punishable as provided in
paragraph (a) of this subdivision. Except as provided in subparagraph three
or five of this paragraph, a violation of subdivision one, two, three,
four or six of section eleven hundred ninety-two of this article wherein
the violator is operating a commercial motor vehicle, or any motor vehicle
registered or registrable under schedule F of subdivision seven of section
four hundred one of this chapter shall be a misdemeanor. A violation of
subdivision one, two, three or four of section eleven hundred ninety-two
of this article shall be punishable by a fine of not less than five hundred
dollars nor more than fifteen hundred dollars or by a period of imprisonment
as provided in the penal law, or by both such fine and imprisonment. A
violation of subdivision six of section eleven hundred ninety-two of this
article shall be punishable by a fine of not less than five hundred dollars
nor more than fifteen hundred dollars or by a period of imprisonment not
to exceed one hundred eighty days, or by both such fine and imprisonment.
A person who operates any such vehicle in violation of such subdivision
six after having been convicted of a violation of subdivision one, two,
three, four or six of section eleven hundred ninety-two of this article
within the preceding five years shall be punishable by a fine of not less
than five hundred dollars nor more than fifteen hundred dollars or by a
period of imprisonment as provided in the penal law, or by both such fine
and imprisonment.
(3) A violation of subdivision one of section eleven hundred ninety-two
of this article wherein the violator is operating a motor vehicle with
a gross vehicle weight rating of more than eighteen thousand pounds which
contains flammable gas, radioactive materials or explosives shall be a
misdemeanor punishable by a fine of not less than five hundred dollars
nor more than fifteen hundred dollars or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment.
(4) (i) A person who operates a vehicle in violation of subdivision
one, two, three or four of section eleven hundred ninety-two of this article
and which is punishable as provided in subparagraph one, one-a, two or
three of this paragraph after having been convicted of a violation of any
such subdivision of section eleven hundred ninety-two of this article and
penalized under subparagraph one, one-a, two or three of this paragraph
within the preceding ten years, shall be guilty of a class E felony, which
shall be punishable by a fine of not less than one thousand dollars
nor more than five thousand dollars, or by a period of imprisonment as
provided in the penal law, or by both such fine and imprisonment.
A person who operates a vehicle in violation of subdivision six of section
eleven hundred ninety-two of this article after having been convicted of
two or more violations of subdivisions one, two, three, four or six of
section eleven hundred ninety-two of this article within the preceding
five years, any one of which was a misdemeanor, shall be guilty of a class
E felony, which shall be punishable by a fine of not less than one thousand
dollars nor more than five thousand dollars, or by a period of imprisonment
as provided in the penal law, or by both such fine and imprisonment.
In addition, any person sentenced pursuant to this subparagraph shall be
subject to the disqualification provided in subparagraph three of
paragraph (e) of subdivision two of this section.
(ii) A person who operates a vehicle in violation of subdivision one, two,
three or four of section eleven hundred ninety-two of this article and
which is punishable as provided in subparagraph one, one-a, two
or three of this paragraph after having been convicted
of a violation of any such subdivision of section eleven hundred ninety-two
of this article and penalized under subparagraph
one, one-a, two or three of this paragraph twice within the preceding ten
years, shall be guilty of a class D felony, which
shall be punishable by a fine of not less than two thousand dollars
nor more than ten thousand dollars, or by a period of imprisonment as provided
in the penal law, or by both such fine and
imprisonment. A person who operates a vehicle in violation
of subdivision six of section eleven hundred ninety-two of
this article after having been convicted of three
or more violations of subdivisions one, two, three, four or six of section
eleven hundred ninety-two of this
article within the preceding five years, any one of which
was a misdemeanor, shall be guilty of a class D felony, which shall
be punishable by a fine of not less than two thousand dollars
nor more than ten thousand dollars, or by a period of imprisonment as provided
in the penal law, or by both such
fine and imprisonment. In addition, any person sentenced pursuant to this
subparagraph shall be subject to the disqualification provided in subparagraph
three of paragraph (e) of subdivision two of this section.
(4-a) A violation of subdivision two, three or four of section eleven
hundred ninety-two of this article wherein the violator is
operating a school bus as defined in section one hundred forty-two of
this chapter and such school bus is carrying at least one student
passenger shall be a class E felony punishable by a fine of not
less than one thousand dollars nor more than five thousand
dollars, or by a period of imprisonment as provided in
the penal law, or by both such fine and imprison-
ment.
(5) A violation of subdivision two, three or four of section
eleven hundred ninety-two of this article wherein the violator
is operating a motor vehicle with a gross vehicle weight rating of more
than eighteen thousand pounds which contains flammable
gas, radioactive materials or explosives, shall be a class E felony punishable
by a fine of not less than one thousand dollars
and such other penalties as provided for in the penal law; provided, however,
that a conviction for such violation shall not be considered
a predicate felony pursuant to section 70.06 of such law, or a previous
felony conviction pursuant to section 70.10 of such law.
(6) The sentences required to be imposed by subparagraph one,
one-a, two, three, four, four-a or five of paragraph shall be imposed
notwithstanding any contrary provision of this chapter or the penal law.
(7) Nothing contained in this paragraph shall prohibit the imposition
of a charge of any other felony set forth in this or any other provision
of law for any acts arising out of the same incident.
(e) Certain sentences prohibited.
Notwithstanding any provisions of the penal law,
no judge or magistrate shall impose a sentence of unconditional discharge
for a violation of any subdivision of section eleven hundred
ninety-two of this article nor shall a judge
or magistrate impose a sentence of conditional discharge or
probation unless such conditional discharge or
probation is accompanied by a sentence of a fine as provided in this
subdivision.
(f) Where the
court imposes a sentence for a violation of section eleven
hundred ninety-two of this article, the court may require
the defendant, as a part of or as a condition of such sentence, to
attend a single session conducted by a victims impact program. For
purposes of this section, "victims impact
program" means a program operated by a county, a city with a population
of one million or more, by a not-for-profit organization authorized
by any such county or city, or a combination thereof, in which
presentations are made concerning the impact of operating a motor vehicle
while under the influence of alcohol or drugs to one
or more persons who have been convicted of such
offenses. A description of any such program shall be filed with the commissioner
and with the coordinator of the special traffic options program for
driving while intoxicated established pursuant to section eleven
hundred ninety-seven of this article, and shall be made available to the
court upon request. Nothing contained herein
shall be construed to require any governmental entity to create such
a victim impact program
2. License sanctions. (a) Suspensions.
Except as otherwise provided in this subdivision, a license shall
be suspended and a registration may be suspended for the following periods:
(1) Driving while ability impaired. Ninety days, where the
holder is convicted of a violation of subdivision one of section
eleven hundred ninety-two of this article;
(2) Persons under the age of twenty-one; driving after having consumed
alcohol. Six months, where the holder has been found to have operated
a motor vehicle after having consumed alcohol in violation
of section eleven hundred ninety-two-a of this article where
such person was under the age of twenty-one at the time of commission of
such violation.
(b) Revocations. A license
shall be revoked and a registration may be revoked for the following
minimum periods:
(1) Driving while ability impaired; prior offense. Six months,
where the holder is convicted of a violation of subdivision
one of section eleven hundred ninety-two of this article committed
within five years of a conviction for a violation
of any subdivision of section eleven hundred ninety-two of
this article.
(1-a) Driving while ability impaired; misdemeanor
offense. Six months, where the holder is convicted
of a violation of subdivision one of section eleven hundred ninety-two
of this article committed within ten years of two previous
convictions for a violation of any subdivision of section eleven hundred
ninety-two of this article.
(2) Driving while intoxicated or while ability impaired by drugs.
Six months, where the holder is convicted of a violation of subdivision
two, three or four of section eleven hundred ninety-two of this article.
(3) Driving while intoxicated or while ability impaired
by drugs; prior offense. One year, where the holder is convicted
of a violation of subdivision two, three or four of section
eleven hundred ninety-two of this article committed within ten years of
a conviction for a violation of subdivision two, three
or four of section eleven hundred ninety-two of this article.
(4) Special vehicles other than school buses. One year,
where the holder is convicted of a violation of any subdivision
of section eleven hundred ninety-two of this article and is sentenced pursuant
to subparagraph one of paragraph (d) of subdivision one of this section.
(4-a) School buses. (A) One year, where the holder is convicted of
a violation of any subdivision of section eleven
hundred ninety-two of this article, such violation was committed while
the holder was driving a school bus, and the holder is sentenced
pursuant to subparagraph one, one-a or four-a of paragraph (d) of subdivision
one of this section.
(B) Three years where the holder is convicted of a violation
of any subdivision of section eleven hundred ninety-two of this article,
such violation was committed while the holder was driving a
school bus, and the holder is sentenced pursuant to subparagraph four of
paragraph (d) of subdivision one of this section.
(C) Notwithstanding the provisions of the opening paragraph
of this paragraph (b), the commissioner shall not revoke the registration
of a school bus driven in violation of section eleven
hundred ninety-two of this article.
(5) Commercial motor vehicles. (i) Except as otherwise
provided in this subparagraph, one year where the holder is convicted
of a violation of any subdivision of section eleven hundred ninety-two
of this article, such violation was committed while the holder was operating
a commercial motor vehicle and the holder is sentenced pursuant
to subparagraph two of paragraph (d) of subdivision one of this section.
(ii) Three years, where the holder is convicted of a violation of
any subdivision of section eleven hundred ninety-two of this
article, such violation was committed while the holder was
operating a commercial motor vehicle transporting
hazardous materials and the holder is sentenced
pursuant to subparagraph two of paragraph (d) of subdivision
one of this section.
(6) Persons under the age of twenty-one. One year, where the holder is
convicted of or adjudicated a youthful offender for a violation
of any subdivision of section eleven hundred ninety-two of this article
where such person was under the age of twenty-one at the time of commission
of such violation.
(7) Persons under the age of twenty-one; prior offense
or finding. One year or until the holder reaches the age of twenty-one,
whichever is the greater period of time, where the holder has
been found to have operated a motor vehicle
after having consumed alcohol in violation of section eleven hundred ninety-two-a
of this article, or is convicted of, or adjudicated a youthful offender
for, a violation of any subdivision of section eleven
hundred ninety-two of this article and has previously been found to have
operated a motor vehicle after having consumed alcohol in violation
of section eleven hundred ninety-two-a of this article, or has previously
been convicted of, or adjudicated a youthful offender for, any violation
of section eleven hundred ninety-two of this article not arising
out of the same incident.
(8) Out-of-state offenses. (i) Ninety days,
where the holder is convicted of an offense consisting of operating a
motor vehicle under the influence of intoxicating
liquor where the conviction was had outside this state
and (ii) six months, where the holder is convicted of,
or receives a youthful offender or other juvenile
adjudication, which would have been a misdemeanor or felony if committed
by an adult, in connection with, an offense consisting
of operating a motor vehicle under the influence of or while impaired by
the use of drugs where the conviction or youthful
offender or other juvenile adjudication was had outside this state. [repealed
10/01/1991]
[(8) Out-of-state offenses. Ninety days,
where the holder is convicted of an
offense consisting of operating a motor vehicle under the influence of
intoxicating liquor or drugs where the conviction was had outside
this state.] [effective 10/01/1999]
(9) Effect of rehabilitation program. No period of revocation arising
out of subparagraph four, five, six or seven of this paragraph
may be set aside by the commissioner
for the reason that such person was a participant in the alcohol and drug
rehabilitation program set forth in section eleven hundred ninety-six
of this chapter.
(10) Action required by commissioner. Where a court fails to
impose, or incorrectly imposes, a suspension or revocation
required by this subdivision, the commissioner
shall, upon receipt of a certificate of conviction filed pursuant to section
five hundred fourteen of this chapter, impose such mandated suspension
or revocation, which shall supersede any such order which the
court may have imposed.
(11) Limitation of certain mandatory revocations. Where revocation
is mandatory pursuant to subparagraph five
of this paragraph for a conviction of a violation
of subdivision five of section eleven hundred ninety-two of this article,
such revocation shall be issued only by the commissioner and
shall be applicable only to that portion of the holder`s driver`s license
or privilege which permits the operation
of commercial motor vehicles, and the commissioner shall immediately
issue a license, other than a commercial driver`s license,
to such person provided that such person is otherwise
eligible to receive such license and further provided that issuing a license
to such person does not create a substantial traffic
safety hazard.
(c) Reissuance of licenses;
restrictions.
(1) Except as otherwise provided in this paragraph, where a license is
revoked pursuant to paragraph (b) of this subdivision,
no new license shall be issued after the expiration of the minimum period
specified in such paragraph, except in the discretion of the commissioner.
(2) Where a license is revoked pursuant to subparagraph two, three
or eight of paragraph (b) of this subdivision for a violation of
subdivision four of section eleven hundred
ninety-two of this article, and where the individual does not have a driver`s
license or the individual`s license was suspended at
the time of conviction or youthful offender or other juvenile
adjudication, the commissioner shall not issue a new license nor restore
the former license for a period of six months after
such individual would otherwise have become eligible to obtain a
new license or to have the former license restored; provided,
however, that during such delay period the commissioner
may issue a restricted use license pursuant to section five hundred thirty
of this chapter.
(3) In no event shall a new license be issued where a person has
been twice convicted of a violation of subdivision three or
four of section eleven hundred ninety-two of this article or of driving
while intoxicated or of driving while ability is impaired by the use of
a drug where physical injury, as defined
in section 10.00 of the penal law, has resulted from such offense
in each instance. [repealed 10/01/1999]
[(c) Reissuance of licenses;
restrictions. Where a license is revoked pursuant to paragraph (b) of this
subdivision, no new license shall be issued after
the expiration of the minimum period specified in such
paragraph, except in the discretion of the
commissioner; provided, however, that in no event shall
a new license be issued where a person has been twice convicted of a violation
of subdivision three or four of section eleven hundred
ninety-two of this article or of driving while
intoxicated or of driving while ability is impaired by the use of a
drug where physical injury, as defined in section 10.00 of the penal law,
has resulted from such offense in each instance.] [effective 10/01/1999]
(d) Suspension or revocation;
sentencing. (1) Notwithstanding anything to the contrary contained in a
certificate of relief from disabilities issued pursuant
to article twenty-three of the correction law, where a suspension or revocation,
other than a revocation required to be issued by the
commissioner, is mandatory pursuant to paragraph (a) or (b) of this
subdivision, the magistrate, justice or judge shall issue an order
suspending or revoking such license upon sentencing,
and the license holder shall surrender such license to the court.
Except as hereinafter provided, such suspension or revocation shall take
effect immediately.
(2) Except where the license holder has been charged with a violation
of article one hundred twenty or one hundred twenty-five
of the penal law arising out of the same incident or convicted of such
violation or a violation of any subdivision of section eleven
hundred ninety-two of this article within
the preceding five years, the judge, justice or magistrate
may issue an order making said license suspension or revocation
take effect twenty days after the date of sentencing. The license
holder shall be given a copy of said order permitting the continuation
of driving privileges for twenty days after sentencing,
if granted by the court. The court shall forward to the commissioner the
certificates required in sections five hundred thirteen and five
hundred fourteen of this chapter, along with a copy of any order
issued pursuant to this paragraph and the license, within
ninety-six hours of sentencing.
(e) Special provisions.
(1) Suspension pending prosecution; procedure.
a. Without notice, pending any prosecution, the court shall suspend such
license, where the holder has been charged with a violation of subdivision
two, three or four of section eleven hundred ninety-two
of this article and either (i) a violation of a felony under article
one hundred twenty or one hundred twenty-five of the
penal law arising out of the same incident, or (ii) has been convicted
of any violation under section eleven hundred ninety-two of this
article within the preceding five
years.
b. The suspension under the preceding clause shall occur no later than
twenty days after the holder`s first appearance before the court
on the charges or at the conclusion of all
proceedings required for the arraignment. In
order for the court to impose such suspension it must find that the
accusatory instrument conforms to the requirements
of section 100.40 of the criminal procedure law and there exists reasonable
cause to believe that the holder operated a motor vehicle in
violation of subdivision two, three or four of section eleven hundred
ninety-two of this article and either (i)
the person had been convicted of any violation under such section eleven
hundred ninety-two of this article within the preceding
five years; or (ii) that the holder committed a violation of a felony
under article one hundred twenty or one hundred twenty-five
of the penal law. At such time the holder shall be entitled to an opportunity
to make a statement regarding the enumerated issues
and to present evidence tending to rebut the
court`s findings. Where such suspension is imposed upon a pending charge
of a violation of a felony under article
one hundred twenty or one hundred twenty-five of the penal law and the
holder has requested a hearing pursuant to article one hundred eighty of
the criminal procedure law, the court
shall conduct such hearing. If upon completion of the hearing, the court
fails to find that there is reasonable
cause to believe that the holder
committed a felony under article one hundred twenty or one hundred
twenty-five of the penal law and the holder
has not been previously convicted of any violation
of section eleven hundred ninety-two of this article within the preceding
five years the court shall promptly notify the commissioner
and direct restoration of such license to the license holder unless such
license is suspended or revoked pursuant to any other provision of this
chapter.
(2) Bail forfeiture. A license shall be suspended where
the holder forfeits bail upon a charge of a violation of any subdivision
of section eleven hundred ninety-two of this article. Such suspension
shall not be terminated until the holder submits to the jurisdiction of
the court in which the bail was forfeited.
(3) Permanent disqualification from operating certain motor vehicles.
a. Except as otherwise provided herein, in addition to any
revocation set forth in subparagraph four or five of paragraph (b) of this
subdivision, any person sentenced pursuant to subparagraph
three of paragraph (d) of subdivision one of this section shall be permanently
disqualified from operating any vehicle set forth in such paragraph. In
addition, the commissioner shall not issue such person a license valid
for the operation of any vehicle set forth therein by such
person. The commissioner may waive such disqualification and
prohibition hereinbefore provided after a period of five years
has expired from such sentencing provided:
(i) that during such five year period such person has not violated any
of the provisions of section eleven hundred ninety-two of this
article or any alcohol or drug related traffic offense in this state or
in any jurisdiction outside this state;
(ii) that such person provides acceptable documentation to the commissioner
that such person is not in need of alcohol or drug treatment or has
satisfactorily completed a prescribed course of such treatment; and
(iii) after such documentation is accepted, that such person is granted
a certificate of relief from disabilities as provided for in section
seven hundred one of the correction
law by the court in which such person was last penalized pursuant to paragraph
(d) of subdivision one of this section.
b. Any person convicted of a violation of any subdivision of
section eleven hundred ninety-two of this article while operating
a commercial motor vehicle who has had
a prior finding of refusal to submit to a chemical test pursuant to section
eleven hundred ninety-four of this article
while operating a commercial motor vehicle or has had a prior
conviction of any of the following offenses while operating a commercial
motor vehicle: any violation of section eleven hundred
ninety-two of
this article; any violation of subdivision two of section six hundred
of this chapter; or has a prior conviction of any felony involving
the use of a commercial motor vehicle pursuant to paragraph (a) of
subdivision one of section five hundred ten-a of this chapter, shall
be permanently disqualified from operating a commercial motor vehicle.
The commissioner may waive such disqualification and prohibition
hereinbefore provided after a period of ten years has expired from
such sentence provided:
(i) that during such ten year period such person has not been found to
have refused a chemical test pursuant to section eleven hundred ninety-four
of this article while operating a commercial motor vehicle and has
not been convicted of any one of the following offenses while operating
a commercial motor vehicle: any violation of section
eleven hundred ninety-two of this article; any violation of
subdivision two of section six hundred of this chapter; or has a prior
conviction of any felony involving the use
of a commercial motor vehicle pursuant to paragraph (a) of subdivision
one of section five hundred ten-a of this chapter;
(ii) that such person provides acceptable documentation to the commissioner
that such person is not in need of alcohol or drug treatment
or has satisfactorily completed a prescribed course of such treatment;
and
(iii) after such documentation is accepted, that such person is granted
a certificate of relief from disabilities as provided for in section seven
hundred one of the correction law by the court
in which such person was last penalized pursuant
to paragraph (d) of subdivision one of this section.
c. Upon a third finding of refusal and/or conviction of any
of the offenses which require a permanent commercial
driver`s license revocation, such permanent revocation may not be waived
by the commissioner under any circumstances.
(4) Youthful offenders. Where a youth is determined to be a
youthful offender, following a conviction of a
violation of section eleven hundred ninety-two
of this article for which a license suspension or revocation
is mandatory, the court shall impose such suspension or revocation as is
otherwise required upon conviction and, further,
shall notify the commissioner of said suspension or revocation and its
finding that said violator is granted youthful offender
status as is required pursuant to section five hundred thirteen of this
chapter.
(5) Probation. When a license to operate a motor vehicle
has been revoked pursuant to this chapter, and the holder has been
sentenced to a period of probation pursuant to
section 65.00 of the penal law for a violation of any provision of this
chapter, or any other provision of the laws
of this state, and a condition of such probation is that the holder
thereof not operate a motor vehicle or not apply for a license to operate
a motor vehicle during the period of
such condition of
probation, the commissioner may not restore such license until the
period of the condition of probation has expired.
(6) Application for new license. Where a
license has been revoked pursuant to paragraph (b) of this subdivision,
or where the holder is subject to a condition of
probation as provided in subparagraph five of this paragraph, application
for a new license may be made within forty-five days
prior to the expiration of such minimum period of revocation or condition
of probation, whichever expires last.
[(7) Suspension
pending prosecution; excessive blood alcohol content.
a. A court shall suspend a driver`s license, pending prosecution, of any
person charged with a violation of subdivision two or three of
section eleven hundred ninety-two of this article who, at the time of arrest,
is alleged to have had .10 of one percent or more by weight
of alcohol in such driver`s blood as shown by chemical analysis
of blood, breath, urine or saliva, made pursuant
to subdivision two or three of section eleven hundred ninety-four of this
article.
b. The suspension occurring under this subparagraph shall
occur no later than at the conclusion
of all proceedings required for the arraignment; provided,
however, that if the results of any test administered pursuant to section
eleven hundred ninety-four of this article are not available within such
time period, the complainant police officer or other public servant shall
transmit such results to the court at the time
they become available, and the court shall, as soon as practicable
following the receipt of such results and
in compliance with the requirements of this
subparagraph, suspend such license. In order for the court to impose such
suspension it must find that the accusatory instrument
conforms to the requirements of section 100.40 of the criminal procedure
law and there exists reasonable cause to believe that the holder
operated a motor vehicle while such holder had .10 of one percent or
more by weight of alcohol in his or her blood as was shown by chemi-
cal analysis of such person`s blood, breath, urine
or saliva, made pursuant to the provisions of section eleven
hundred ninety-four of this article. At the
time of such license suspension the holder shall be entitled to an opportunity
to make a statement regarding these
two issues and to present evidence tending to rebut the court`s findings.
c. Nothing contained in this subparagraph
shall be construed to prohibit or limit a court from imposing
any other suspension pending prosecution required or
permitted by law.
d. Notwithstanding any contrary provision
of this chapter, if any suspension occurring under this subparagraph has
been in effect for a period of thirty days,
the holder may be issued a conditional license, in accordance with section
eleven hundred ninety-six of this article, provided
the holder of such license is otherwise eligible to receive
such conditional license. The commissioner shall prescribe by regulation
the procedures for the issuance of such conditional license.
e. If the court finds that the suspension imposed
pursuant to this subparagraph will result in extreme hardship, the court
must issue such suspension, but may grant a hardship privilege, which
shall be issued on a form prescribed by the commissioner. For the
purposes of this clause, "extreme hardship" shall mean the inability
to obtain alternative means of travel to or from the licensee`s employment,
or to or from necessary medical treatment for the licensee
or a member of the licensee`s household, or if the licensee is a
matriculating student enrolled in an accredited
school, college or university travel to
or from such licensee`s school, college or university if such
travel is necessary for the completion of the educational degree or certificate.
The burden of proving extreme hardship shall be on the
licensee who may present material and relevant evidence. A finding of extreme
hardship may not be based solely upon
the testimony of the licensee. In no event shall arraignment
be adjourned or otherwise delayed more than three business
days solely for the purpose of allowing the licensee to present evidence
of extreme hardship. The court shall
set forth upon the record, or otherwise set forth in writing, the factual
basis for such finding. The hardship privilege shall
permit the operation of a vehicle only for travel to or from
the licensee`s employment, or to or from necessary
medical treatment for the licensee or a member of the licensee`s
household, or if the licensee is a matriculating student
enrolled in an accredited school, college
or university travel to or from such
licensee`s school, college or university if such travel is necessary for
the completion of the educational degree or certificate.] [repealed 11/01/2000]