N.Y. Vehicle & Traffic Law § 1242-a: Operation of a bicycle with electric assist while under the influence of alcohol or drugs

§ 1242-a. Operation of a bicycle with electric assist while under the

influence of alcohol or drugs. 1. Offenses; criminal penalties. (a)

Operating a bicycle with electric assist while ability impaired. No

person shall operate a bicycle with electric assist while the person's

ability to operate such bicycle with electric assist is impaired by the

consumption of alcohol.

(i) A violation of this paragraph shall be a traffic infraction and

shall be punishable by a fine of not more than three hundred dollars, or

by imprisonment in a penitentiary or county jail for not more than

fifteen days, or by both such fine and imprisonment.

(ii) A person who operates a bicycle with electric assist in violation

of this paragraph after having been convicted of a violation of any

paragraph of this subdivision within the preceding five years shall be

punished by a fine of not 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.

(iii) A person who operates a bicycle with electric assist in

violation of this paragraph after being convicted two or more times of a

violation of any paragraph of this subdivision within the preceding ten

years shall be guilty of a misdemeanor, and shall be punished by a fine

of not more than one thousand 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) Operating a bicycle with electric assist while intoxicated; per

se. No person shall operate a bicycle with electric assist while such

person has .08 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 subdivision

five of this section.

(c) Operating a bicycle with electric assist while intoxicated. No

person shall operate a bicycle with electric assist while in an

intoxicated condition.

(d) Operating a bicycle with electric assist while ability impaired by

drugs. No person shall operate a bicycle with electric assist while the

person's ability to operate such bicycle with electric assist is

impaired by the use of a drug as defined in this chapter.

(e) Operating a bicycle with electric assist while ability impaired by

the combined influence of drugs or of alcohol and any drug or drugs. No

person shall operate a bicycle with electric assist while the person's

ability to operate such bicycle with electric assist is impaired by the

combined influence of drugs or of alcohol and any drug or drugs.

(f) Penalty. (i) A violation of paragraph (b), (c), (d) or (e) of this

subdivision shall be a misdemeanor and shall be punishable by a fine of

not more than five hundred dollars, or by imprisonment in a penitentiary

or county jail for not more than one year, or by both such fine and

imprisonment.

(ii) A person who operates a bicycle with electric assist in violation

of paragraph (b), (c), (d) or (e) of this subdivision after having been

convicted of a violation of paragraph (b), (c), (d) or (e) of this

subdivision within the preceding ten years shall be guilty of a class E

felony, and shall be punished by a fine of not more than one thousand

dollars or by a period of imprisonment as provided in the penal law, or

by both such fine and imprisonment.

(iii) A person who operates a bicycle with electric assist in

violation of paragraph (b), (c), (d) or (e) of this subdivision after

having been convicted of a violation of paragraph (b), (c), (d) or (e)

of this subdivision two or more times within the preceding ten years

shall be guilty of a class E felony, and shall be punished by a fine of

not more than four thousand dollars or by a period of imprisonment as

provided in the penal law, or by both such fine and imprisonment.

2. 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 paragraph (b), (c), (d) or

(e) of subdivision one of this section.

3. Sentencing; previous convictions. When sentencing a person for a

violation of paragraph (b), (c), (d) or (e) of subdivision one of this

section pursuant to subparagraph (ii) of paragraph (f) of subdivision

one of this section, the court shall consider any prior convictions the

person may have for a violation of subdivision two, two-a, three, four,

or four-a of section eleven hundred ninety-two of this title within the

preceding ten years. When sentencing a person for a violation of

paragraph (b), (c), (d) or (e) of subdivision one of this section

pursuant to subparagraph (iii) of paragraph (f) of subdivision one of

this section, the court shall consider any prior convictions the person

may have for a violation of subdivision two, two-a, three, four, or

four-a of section eleven hundred ninety-two of this title within the

preceding ten years. When sentencing a person for a violation of

subparagraph (ii) of paragraph (a) of subdivision one of this section,

the court shall consider any prior convictions the person may have for a

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

this title within the preceding five years. When sentencing a person for

a violation of subparagraph (iii) of paragraph (a) of subdivision one of

this section, the court shall consider any prior convictions the person

may have for a violation of any subdivision of section eleven hundred

ninety-two of this title within the preceding ten years.

4. 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 any paragraph of subdivision one of this section, if such violation

is coupled with an accident or collision in which such person is

involved, which in fact had 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. For the purposes of

this subdivision, police officer shall also include a peace officer

authorized to enforce this chapter when the alleged violation

constitutes a crime.

(b) Field testing. Every person operating a bicycle with electric

assist which has been involved in an accident 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 five of this section.

5. Chemical tests; when authorized. A police officer may request any

person who operates a bicycle with electric assist in this state to

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 such person's blood, provided that such test is

administered 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: (a) having

reasonable grounds to believe such person to have been operating in

violation of paragraph (a), (b), (c), (d) or (e) of subdivision one of

this section and within two hours after such person has been placed

under arrest for any such violation; or (b) within two hours after a

breath test, as provided in paragraph (b) of subdivision four 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.

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

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

following persons may withdraw blood for the purpose of determining the

alcoholic or drug content therein: (A) 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 (B) 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.

(ii) No person entitled to withdraw blood pursuant to subparagraph (i)

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.

(iii) 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 (ii) of this paragraph, may maintain such action

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

this paragraph 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.

(iv) Notwithstanding subparagraphs (i), (ii) and (iii) 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 (i) 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.

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

withdraw blood pursuant to subparagraph (i) 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.

(vi) The provisions of subparagraphs (ii), (iii) and (iv) 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 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.

7. Chemical test evidence. (a) Admissibility. Upon the trial of any

such action or proceeding arising out of actions alleged to have been

committed by any person arrested for a violation of any paragraph of

subdivision one of this section, the court shall admit evidence of the

amount of alcohol or drugs in the defendant's blood as shown by a test

administered pursuant to the provisions of subdivision five of this

section.

(b) Probative value. The following effect shall be given to evidence

of blood-alcohol content, as determined by such tests, of a person

arrested for a violation of subdivision one of this section:

(i) evidence that there was .05 of one per centum or less by weight of

alcohol in such person's blood shall be prima facie evidence that the

ability of such person to operate a bicycle with electric assist was not

impaired by the consumption of alcohol, and that such person was not in

an intoxicated condition;

(ii) evidence that there was more than .05 of one per centum but less

than .07 of one per centum by weight of alcohol in such person's blood

shall be prima facie evidence that such person was not in an intoxicated

condition, but such evidence shall be relevant evidence, but shall not

be given prima facie effect, in determining whether the ability of such

person to operate a bicycle with electric assist was impaired by the

consumption of alcohol; and

(iii) evidence that there was .07 of one per centum or more but less

than .08 of one per centum by weight of alcohol in such person's blood

shall be prima facie evidence that such person was not in an intoxicated

condition, but such evidence shall be given prima facie effect in

determining whether the ability of such person to operate a bicycle with

electric assist was impaired by the consumption of alcohol.

8. Where applicable. The provisions of this section shall apply upon

public highways, private roads open to motor vehicle traffic, any other

parking lot, and sidewalks. 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.

9. Enforcement upon crash. Notwithstanding any provision of this

section, no part of this section may be enforced unless in conjunction

with a crash involving an operator of a bicycle with electric assist.

For the purposes of this subdivision, "crash" shall mean colliding with

a vehicle, person, building or other object.