N.Y. Vehicle & Traffic Law § 1194: Arrest and testing

§ 1194. Arrest and testing. 1. Arrest and field testing. (a) Arrest.

Notwithstanding the provisions of section 140.10 of the criminal

procedure law, a police officer may, without a warrant, arrest a person,

in case of a violation of subdivision one of section eleven hundred

ninety-two of this article, if such violation is coupled with an

accident or collision in which such person is involved, which in fact

has been committed, though not in the police officer's presence, when

the officer has reasonable cause to believe that the violation was

committed by such person.

(b) Field testing. Every person operating a motor vehicle which has

been involved in an accident or which is operated in violation of any of

the provisions of this chapter shall, at the request of a police

officer, submit to a breath test to be administered by the police

officer. If such test indicates that such operator has consumed alcohol,

the police officer may request such operator to submit to a chemical

test in the manner set forth in subdivision two of this section.

2. Chemical tests. (a) When authorized. Any person who operates a

motor vehicle in this state shall be deemed to have given consent to a

chemical test of one or more of the following: breath, blood, urine, or

saliva, for the purpose of determining the alcoholic and/or drug content

of the blood provided that such test is administered by or at the

direction of a police officer with respect to a chemical test of breath,

urine or saliva or, with respect to a chemical test of blood, at the

direction of a police officer:

(1) having reasonable grounds to believe such person to have been

operating in violation of any subdivision of section eleven hundred

ninety-two of this article and within two hours after such person has

been placed under arrest for any such violation; or having reasonable

grounds to believe such person to have been operating in violation of

section eleven hundred ninety-two-a of this article and within two hours

after the stop of such person for any such violation,

(2) within two hours after a breath test, as provided in paragraph (b)

of subdivision one of this section, indicates that alcohol has been

consumed by such person and in accordance with the rules and regulations

established by the police force of which the officer is a member;

(3) for the purposes of this paragraph, "reasonable grounds" to

believe that a person has been operating a motor vehicle after having

consumed alcohol in violation of section eleven hundred ninety-two-a of

this article shall be determined by viewing the totality of

circumstances surrounding the incident which, when taken together,

indicate that the operator was driving in violation of such subdivision.

Such circumstances may include any visible or behavioral indication of

alcohol consumption by the operator, the existence of an open container

containing or having contained an alcoholic beverage in or around the

vehicle driven by the operator, or any other evidence surrounding the

circumstances of the incident which indicates that the operator has been

operating a motor vehicle after having consumed alcohol at the time of

the incident; or

(4) notwithstanding any other provision of law to the contrary, no

person under the age of twenty-one shall be arrested for an alleged

violation of section eleven hundred ninety-two-a of this article.

However, a person under the age of twenty-one for whom a chemical test

is authorized pursuant to this paragraph may be temporarily detained by

the police solely for the purpose of requesting or administering such

chemical test whenever arrest without a warrant for a petty offense

would be authorized in accordance with the provisions of section 140.10

of the criminal procedure law or paragraph (a) of subdivision one of

this section.

(b) Report of refusal. (1) If: (A) such person having been placed

under arrest; or (B) after a breath test indicates the presence of

alcohol in the person's system; or (C) with regard to a person under the

age of twenty-one, there are reasonable grounds to believe that such

person has been operating a motor vehicle after having consumed alcohol

in violation of section eleven hundred ninety-two-a of this article; and

having thereafter been requested to submit to such chemical test and

having been informed that the person's license or permit to drive and

any non-resident operating privilege shall be immediately suspended and

subsequently revoked, or, for operators under the age of twenty-one for

whom there are reasonable grounds to believe that such operator has been

operating a motor vehicle after having consumed alcohol in violation of

section eleven hundred ninety-two-a of this article, shall be revoked

for refusal to submit to such chemical test or any portion thereof,

whether or not the person is found guilty of the charge for which such

person is arrested or detained, refuses to submit to such chemical test

or any portion thereof, unless a court order has been granted pursuant

to subdivision three of this section, the test shall not be given and a

written report of such refusal shall be immediately made by the police

officer before whom such refusal was made. Such report may be verified

by having the report sworn to, or by affixing to such report a form

notice that false statements made therein are punishable as a class A

misdemeanor pursuant to section 210.45 of the penal law and such form

notice together with the subscription of the deponent shall constitute a

verification of the report.

(2) The report of the police officer shall set forth reasonable

grounds to believe such arrested person or such detained person under

the age of twenty-one had been driving in violation of any subdivision

of section eleven hundred ninety-two or eleven hundred ninety-two-a of

this article, that said person had refused to submit to such chemical

test, and that no chemical test was administered pursuant to the

requirements of subdivision three of this section. The report shall be

presented to the court upon arraignment of an arrested person, provided,

however, in the case of a person under the age of twenty-one, for whom a

test was authorized pursuant to the provisions of subparagraph two or

three of paragraph (a) of this subdivision, and who has not been placed

under arrest for a violation of any of the provisions of section eleven

hundred ninety-two of this article, such report shall be forwarded to

the commissioner within forty-eight hours in a manner to be prescribed

by the commissioner, and all subsequent proceedings with regard to

refusal to submit to such chemical test by such person shall be as set

forth in subdivision three of section eleven hundred ninety-four-a of

this article.

(3) For persons placed under arrest for a violation of any subdivision

of section eleven hundred ninety-two of this article, the license or

permit to drive and any non-resident operating privilege shall, upon the

basis of such written report, be temporarily suspended by the court

without notice pending the determination of a hearing as provided in

paragraph (c) of this subdivision. Copies of such report must be

transmitted by the court to the commissioner and such transmittal may

not be waived even with the consent of all the parties. Such report

shall be forwarded to the commissioner within forty-eight hours of such

arraignment.

(4) The court or the police officer, in the case of a person under the

age of twenty-one alleged to be driving after having consumed alcohol,

shall provide such person with a scheduled hearing date, a waiver form,

and such other information as may be required by the commissioner. If a

hearing, as provided for in paragraph (c) of this subdivision, or

subdivision three of section eleven hundred ninety-four-a of this

article, is waived by such person, the commissioner shall immediately

revoke the license, permit, or non-resident operating privilege, as of

the date of receipt of such waiver in accordance with the provisions of

paragraph (d) of this subdivision.

(c) Hearings. Any person whose license or permit to drive or any

non-resident driving privilege has been suspended pursuant to paragraph

(b) of this subdivision is entitled to a hearing in accordance with a

hearing schedule to be promulgated by the commissioner. If the

department fails to provide for such hearing fifteen days after the date

of the arraignment of the arrested person, the license, permit to drive

or non-resident operating privilege of such person shall be reinstated

pending a hearing pursuant to this section. The hearing shall be limited

to the following issues: (1) did the police officer have reasonable

grounds to believe that such person had been driving in violation of any

subdivision of section eleven hundred ninety-two of this article; (2)

did the police officer make a lawful arrest of such person; (3) was such

person given sufficient warning, in clear or unequivocal language, prior

to such refusal that such refusal to submit to such chemical test or any

portion thereof, would result in the immediate suspension and subsequent

revocation of such person's license or operating privilege whether or

not such person is found guilty of the charge for which the arrest was

made; and (4) did such person refuse to submit to such chemical test or

any portion thereof. If, after such hearing, the hearing officer, acting

on behalf of the commissioner, finds on any one of said issues in the

negative, the hearing officer shall immediately terminate any suspension

arising from such refusal. If, after such hearing, the hearing officer,

acting on behalf of the commissioner finds all of the issues in the

affirmative, such officer shall immediately revoke the license or permit

to drive or any non-resident operating privilege in accordance with the

provisions of paragraph (d) of this subdivision. A person who has had a

license or permit to drive or non-resident operating privilege suspended

or revoked pursuant to this subdivision may appeal the findings of the

hearing officer in accordance with the provisions of article three-A of

this chapter. Any person may waive the right to a hearing under this

section. Failure by such person to appear for the scheduled hearing

shall constitute a waiver of such hearing, provided, however, that such

person may petition the commissioner for a new hearing which shall be

held as soon as practicable.

(d) Sanctions. (1) Revocations. a. Any license which has been revoked

pursuant to paragraph (c) of this subdivision shall not be restored for

at least one year after such revocation, nor thereafter, except in the

discretion of the commissioner. However, no such license shall be

restored for at least eighteen months after such revocation, nor

thereafter except in the discretion of the commissioner, in any case

where the person has had a prior revocation resulting from refusal to

submit to a chemical test, or has been convicted of or found to be in

violation of any subdivision of section eleven hundred ninety-two or

section eleven hundred ninety-two-a of this article not arising out of

the same incident, within the five years immediately preceding the date

of such revocation; provided, however, a prior finding that a person

under the age of twenty-one has refused to submit to a chemical test

pursuant to subdivision three of section eleven hundred ninety-four-a of

this article shall have the same effect as a prior finding of a refusal

pursuant to this subdivision 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 or refusal is committed or occurred prior to the expiration of

the retention period for such prior refusal as set forth in paragraph

(k) of subdivision one of section two hundred one of this chapter.

b. Any license which has been revoked pursuant to paragraph (c) of

this subdivision or pursuant to subdivision three of section eleven

hundred ninety-four-a of this article, where the holder was under the

age of twenty-one years at the time of such refusal, shall not be

restored for at least one year, nor thereafter, except in the discretion

of the commissioner. Where such person under the age of twenty-one years

has a prior finding, conviction or youthful offender adjudication

resulting from a violation of section eleven hundred ninety-two or

section eleven hundred ninety-two-a of this article, not arising from

the same incident, such license shall not be restored for at least one

year or until such person reaches the age of twenty-one years, whichever

is the greater period of time, nor thereafter, except in the discretion

of the commissioner.

c. Any commercial driver's license which has been revoked pursuant to

paragraph (c) of this subdivision based upon a finding of refusal to

submit to a chemical test, where such finding occurs within or outside

of this state, shall not be restored for at least eighteen months after

such revocation, nor thereafter, except in the discretion of the

commissioner, but shall not be restored for at least three years after

such revocation, nor thereafter, except in the discretion of the

commissioner, if the holder of such license was operating a commercial

motor vehicle transporting hazardous materials at the time of such

refusal. However, such person shall be permanently disqualified from

operating a commercial motor vehicle in any case where the holder has a

prior finding of refusal to submit to a chemical test pursuant to this

section or has a prior conviction of any of the following offenses: any

violation of section eleven hundred ninety-two of this article; any

violation of subdivision one or two of section six hundred of this

chapter; or has a prior conviction of any felony involving the use of a

motor vehicle pursuant to paragraph (a) of subdivision one of section

five hundred ten-a of this chapter. Provided that the commissioner may

waive such permanent revocation after a period of ten years has expired

from such revocation provided:

(i) that during such ten year period such person has not been found to

have refused a chemical test pursuant to this section and has not been

convicted of any one of the following offenses: any violation of section

eleven hundred ninety-two of this article; refusal to submit to a

chemical test pursuant to this section; any violation of subdivision one

or two of section six hundred of this chapter; or has a prior conviction

of any felony involving the use of a 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 or a certificate of

good conduct pursuant to article twenty-three of the correction law by

the court in which such person was last penalized.

d. 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.

(2) Civil penalties. Except as otherwise provided, any person whose

license, permit to drive, or any non-resident operating privilege is

revoked pursuant to the provisions of this section shall also be liable

for a civil penalty in the amount of five hundred dollars except that if

such revocation is a second or subsequent revocation pursuant to this

section issued within a five year period, or such person has been

convicted of a violation of any subdivision of section eleven hundred

ninety-two of this article within the past five years not arising out of

the same incident, the civil penalty shall be in the amount of seven

hundred fifty dollars. Any person whose license is revoked pursuant to

the provisions of this section based upon a finding of refusal to submit

to a chemical test while operating a commercial motor vehicle shall also

be liable for a civil penalty of five hundred fifty dollars except that

if such person has previously been found to have refused a chemical test

pursuant to this section while operating a commercial motor vehicle or

has 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,

then the civil penalty shall be seven hundred fifty dollars. No new

driver's license or permit shall be issued, or non-resident operating

privilege restored to such person unless such penalty has been paid. All

penalties collected by the department pursuant to the provisions of this

section shall be the property of the state and shall be paid into the

general fund of the state treasury.

(3) Effect of rehabilitation program. No period of revocation arising

out of this section 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 article.

(e) Regulations. The commissioner shall promulgate such rules and

regulations as may be necessary to effectuate the provisions of

subdivisions one and two of this section.

(f) Evidence. Evidence of a refusal to submit to such chemical test or

any portion thereof shall be admissible in any trial, proceeding or

hearing based upon a violation of the provisions of section eleven

hundred ninety-two of this article but only upon a showing that the

person was given sufficient warning, in clear and unequivocal language,

of the effect of such refusal and that the person persisted in the

refusal.

(g) Results. Upon the request of the person who was tested, the

results of such test shall be made available to such person.

3. Compulsory chemical tests. (a) Court ordered chemical tests.

Notwithstanding the provisions of subdivision two of this section, no

person who operates a motor vehicle in this state may refuse to submit

to a chemical test of one or more of the following: breath, blood, urine

or saliva, for the purpose of determining the alcoholic and/or drug

content of the blood when a court order for such chemical test has been

issued in accordance with the provisions of this subdivision.

(b) When authorized. Upon refusal by any person to submit to a

chemical test or any portion thereof as described above, the test shall

not be given unless a police officer or a district attorney, as defined

in subdivision thirty-two of section 1.20 of the criminal procedure law,

requests and obtains a court order to compel a person to submit to a

chemical test to determine the alcoholic or drug content of the person's

blood upon a finding of reasonable cause to believe that:

(1) such person was the operator of a motor vehicle and in the course

of such operation a person other than the operator was killed or

suffered serious physical injury as defined in section 10.00 of the

penal law; and

(2) a. either such person operated the vehicle in violation of any

subdivision of section eleven hundred ninety-two of this article, or

b. a breath test administered by a police officer in accordance with

paragraph (b) of subdivision one of this section indicates that alcohol

has been consumed by such person; and

(3) such person has been placed under lawful arrest; and

(4) such person has refused to submit to a chemical test or any

portion thereof, requested in accordance with the provisions of

paragraph (a) of subdivision two of this section or is unable to give

consent to such a test.

(c) Reasonable cause; definition. For the purpose of this subdivision

"reasonable cause" shall be determined by viewing the totality of

circumstances surrounding the incident which, when taken together,

indicate that the operator was driving in violation of section eleven

hundred ninety-two of this article. Such circumstances may include, but

are not limited to: evidence that the operator was operating a motor

vehicle in violation of any provision of this article or any other

moving violation at the time of the incident; any visible indication of

alcohol or drug consumption or impairment by the operator; the existence

of an open container containing an alcoholic beverage in or around the

vehicle driven by the operator; any other evidence surrounding the

circumstances of the incident which indicates that the operator has been

operating a motor vehicle while impaired by the consumption of alcohol

or drugs or intoxicated at the time of the incident.

(d) Court order; procedure. (1) An application for a court order to

compel submission to a chemical test or any portion thereof, may be made

to any supreme court justice, county court judge or district court judge

in the judicial district in which the incident occurred, or if the

incident occurred in the city of New York before any supreme court

justice or judge of the criminal court of the city of New York. Such

application may be communicated by telephone, radio or other means of

electronic communication, or in person.

(2) The applicant must provide identification by name and title and

must state the purpose of the communication. Upon being advised that an

application for a court order to compel submission to a chemical test is

being made, the court shall place under oath the applicant and any other

person providing information in support of the application as provided

in subparagraph three of this paragraph. After being sworn the applicant

must state that the person from whom the chemical test was requested was

the operator of a motor vehicle and in the course of such operation a

person, other than the operator, has been killed or seriously injured

and, based upon the totality of circumstances, there is reasonable cause

to believe that such person was operating a motor vehicle in violation

of any subdivision of section eleven hundred ninety-two of this article

and, after being placed under lawful arrest such person refused to

submit to a chemical test or any portion thereof, in accordance with the

provisions of this section or is unable to give consent to such a test

or any portion thereof. The applicant must make specific allegations of

fact to support such statement. Any other person properly identified,

may present sworn allegations of fact in support of the applicant's

statement.

(3) Upon being advised that an oral application for a court order to

compel a person to submit to a chemical test is being made, a judge or

justice shall place under oath the applicant and any other person

providing information in support of the application. Such oath or oaths

and all of the remaining communication must be recorded, either by means

of a voice recording device or verbatim stenographic or verbatim

longhand notes. If a voice recording device is used or a stenographic

record made, the judge must have the record transcribed, certify to the

accuracy of the transcription and file the original record and

transcription with the court within seventy-two hours of the issuance of

the court order. If the longhand notes are taken, the judge shall

subscribe a copy and file it with the court within twenty-four hours of

the issuance of the order.

(4) If the court is satisfied that the requirements for the issuance

of a court order pursuant to the provisions of paragraph (b) of this

subdivision have been met, it may grant the application and issue an

order requiring the accused to submit to a chemical test to determine

the alcoholic and/or drug content of his blood and ordering the

withdrawal of a blood sample in accordance with the provisions of

paragraph (a) of subdivision four of this section. When a judge or

justice determines to issue an order to compel submission to a chemical

test based on an oral application, the applicant therefor shall prepare

the order in accordance with the instructions of the judge or justice.

In all cases the order shall include the name of the issuing judge or

justice, the name of the applicant, and the date and time it was issued.

It must be signed by the judge or justice if issued in person, or by the

applicant if issued orally.

(5) Any false statement by an applicant or any other person in support

of an application for a court order shall subject such person to the

offenses for perjury set forth in article two hundred ten of the penal

law.

(6) The chief administrator of the courts shall establish a schedule

to provide that a sufficient number of judges or justices will be

available in each judicial district to hear oral applications for court

orders as permitted by this section.

(e) Administration of compulsory chemical test. An order issued

pursuant to the provisions of this subdivision shall require that a

chemical test to determine the alcoholic and/or drug content of the

operator's blood must be administered. The provisions of paragraphs (a),

(b) and (c) of subdivision four of this section shall be applicable to

any chemical test administered pursuant to this section.

4. Testing procedures. (a) Persons authorized to withdraw blood;

immunity; testimony. (1) At the request of a police officer, the

following persons may withdraw blood for the purpose of determining the

alcoholic or drug content therein: (i) a physician, a registered

professional nurse, a registered physician assistant, a certified nurse

practitioner, or an advanced emergency medical technician as certified

by the department of health; or (ii) under the supervision and at the

direction of a physician, registered physician assistant or certified

nurse practitioner acting within his or her lawful scope of practice, or

upon the express consent of the person eighteen years of age or older

from whom such blood is to be withdrawn: a clinical laboratory

technician or clinical laboratory technologist licensed pursuant to

article one hundred sixty-five of the education law; a phlebotomist; or

a medical laboratory technician or medical technologist employed by a

clinical laboratory approved under title five of article five of the

public health law. This limitation shall not apply to the taking of a

urine, saliva or breath specimen.

(2) No person entitled to withdraw blood pursuant to subparagraph one

of this paragraph or hospital employing such person, and no other

employer of such person shall be sued or held liable for any act done or

omitted in the course of withdrawing blood at the request of a police

officer pursuant to this section.

(3) Any person who may have a cause of action arising from the

withdrawal of blood as aforesaid, for which no personal liability exists

under subparagraph two of this paragraph, may maintain such action

against the state if any person entitled to withdraw blood pursuant to

paragraph (a) hereof acted at the request of a police officer employed

by the state, or against the appropriate political subdivision of the

state if such person acted at the request of a police officer employed

by a political subdivision of the state. No action shall be maintained

pursuant to this subparagraph unless notice of claim is duly filed or

served in compliance with law.

(4) Notwithstanding the foregoing provisions of this paragraph an

action may be maintained by the state or a political subdivision thereof

against a person entitled to withdraw blood pursuant to subparagraph one

of this paragraph or hospital employing such person for whose act or

omission the state or the political subdivision has been held liable

under this paragraph to recover damages, not exceeding the amount

awarded to the claimant, that may have been sustained by the state or

the political subdivision by reason of gross negligence or bad faith on

the part of such person.

(5) The testimony of any person other than a physician, entitled to

withdraw blood pursuant to subparagraph one of this paragraph, in

respect to any such withdrawal of blood made by such person may be

received in evidence with the same weight, force and effect as if such

withdrawal of blood were made by a physician.

(6) The provisions of subparagraphs two, three and four of this

paragraph shall also apply with regard to any person employed by a

hospital as security personnel for any act done or omitted in the course

of withdrawing blood at the request of a police officer pursuant to a

court order in accordance with subdivision three of this section.

(b) Right to additional test. The person tested shall be permitted to

choose a physician to administer a chemical test in addition to the one

administered at the direction of the police officer.

(c) Rules and regulations. The department of health shall issue and

file rules and regulations approving satisfactory techniques or methods

of conducting chemical analyses of a person's blood, urine, breath or

saliva and to ascertain the qualifications and competence of individuals

to conduct and supervise chemical analyses of a person's blood, urine,

breath or saliva. If the analyses were made by an individual possessing

a permit issued by the department of health, this shall be presumptive

evidence that the examination was properly given. The provisions of this

paragraph do not prohibit the introduction as evidence of an analysis

made by an individual other than a person possessing a permit issued by

the department of health.